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THE  CRIMINAL  LAW 

INCLUDING 

THE  FEDERAL  PENAL 
CODE 

PARTS  III 

A  General  Treatise  on  the  Criminal  Law 

PART  III 

A  Compilation  of  the  Criminal  Statutes  of 
the  LInited  States  of  a  General  Nature  up 
to   and   including   41    Statutes   at    Large 


BY 

JAMES  E.  GRIGSBY 

OF  THE  ALBUQUERQUE,  NEW  MEXICO  BAR 


fJi: '    '.AWi 


L.  A.  CO.  L.  L 


CHICAGO 

BURDETTE  J.  SMITH  &  COMPANY 

PUBLISHERS 

1922 


T 


\^x^ 


Copyright,  1922 

BY 

JAMES  E.  GRIGSBY 


PREFACE 


In  this  age  of  books  and  especially  law  books,  there  is 
some  explanation  due  the  profession  and  those  who  read 
this  book,  why  it  has  been  written.  The  object  has  been 
to  find  a  mean  between  too  much  prolixity  and  too  much 
brevity.  It  has  occurred  to  me  that  if  there  was  a  work 
on  the  criminal  law  which  could  find  a  place  between 
these  extremes,  some  benefit  might  be  contributed  to  the 
profession  as  well  as  the  student  of  the  law.  I  have 
thought  that  it  would  be  of  some  benefit  to  include  in  the 
discussion  of  the  subject  a  chapter  on  presumptions,  con- 
fessions and  contempts,  because  of  the  intimate  relation 
sustained  by  these  subjects  to  common  principles  of  the 
criminal  law.  The  discussion  of  specific  offenses  has 
been  confined  to  common  law  crime  and  those  statutory 
offenses  which  have  something  like  uniformity  of  con- 
struction in  all  of  our  states.  Since  this  work  is  general 
in  its  scope,  I  have  not  deemed  it  advisable  to  discuss,  ex- 
cept in  a  general  way,  that  class  of  offenses  which  come 
under  the  police  power  of  the  state.  This  class  of  laws 
is  to  a  great  extent  governed  by  local  conditions  and 
to  some  extent  no  uniformity  of  enactment  and  con- 
struction is  possible.  My  pui-pose  has  been  to  gather 
together  as  briefly  as  consistent  with  the  proper  under- 
standing of  the  matters  discussed,  the  principles  of  the 
criminal  law  in  general.  Amid  the  vast  number  of  re- 
ported cases  it  is  sometimes  very  difficult  to  reconcile 
the  contentions  of  the  particular  case  with  the  governing 
principles.  New  conditions  and  new  surroundings  have 
created  new  rights  to  be  maintained  and  new  wrongs 
to  be  redressed,   and  through  the   expansive  force   of 

iii 


729910 


iv  Preface 

logic  the  courts  have  extended  and  applied  principles 
so  as  to  embrace  such  new  conditions  and  surroundings. 
At  least  to  this  extent  it  may  be  said  that  there  has  been 
an  advance  in  the  science  of  the  criminal  law,  and  to 
keep  a  pace  with  this  advance  has  in  a  sense  been  the 
moving  object  of  this  work.  My  highest  hope  shall  be 
realized  if  I  succeed  in  part. 

Again  it  has  been  my  object  to  give  to  the  reader  the 
law  as  I  have  thought  was  sustained  by  the  authorities. 
I  have  not  obtruded  my  own  opinions  except  where  I 
have  thought  that  the  rules  were  so  flagrantly  against 
principle  that  it  was  required,  and  even  in  such  instances, 
1  have  always  endeavored  to  give  the  rules  as  sustained 
by  the  courts.  I  am  conscious  of  many  errors  of  judg- 
ment— that  many  things  have  been  overlooked.  I  have 
tried  to  reduce  them  to  a  minimum,  and  for  these  I  ask 
the  indulgence  of  the  reader.  There  is  no  juster  critic 
than  the  lawyer.  His  business  teaches  him  the  fallibil- 
ity of  his  fellows;  his  liability  to  err.  His  broad  view 
and  dispassionate  way  of  looking  at  the  short-comings 
of  others  make  him  a  just  critic. 

I  have  not  attempted  any  special  arrangement  of  sub- 
jects in  Part  One,  but  in  Part  Two,  ''Specific  Crimes," 
1  have  arranged  the  subjects  in  alphabetical  order.  This 
arrangement  I  believe  possesses  some  convenience.  I 
have  endeavored  to  cover  in  one  volume  the  criminal 
law  entire  for  the  subjects  treated,  being  careful  not  to 
confound  tlie  discussion  with  "Procedure." 

Wliat  1  have  intended  has  been  to  epitomize  in  one 
vohnnc  the  hiw  of  the  subjects  treated,  and  thus  aid  the 
busy  lawyer  without  imposing  upon  him  the  burden 
and  lh(?  trouble  of  reading  a  lot  of  unimportant  mat- 
ter; to  tlie  student,  that  he  may  get  the  "core"  without 
tlic  necessity  of  dcxouring  tlie  "rind." 

Jas.  E.  Gkigsbv. 


INTRODUCTION 


Law  ill  its  comprehensive  sense  includes  those  rules 
of  action  and  conduct  which  are  uniform  and  universal. 
The  laws  of  nature  are  of  this  class.  Considered  in  this 
sense,  law  is  not  within  the  reach  of  human  control, 
and  as  we  are  taught  bends  only  to  the  Will  of  Infinity. 
All  things  animate,  inanimate,  material  or  immaterial 
respond  in  haniionious  accord  throughout  the  Universe 
Law  then  is  a  rule  of  action  governing  the  existence  and 
the  functions  of  any  given  thing  to  which  it  must  con- 
form. Based  upon  this  reflection  Deity  itself  may  be  re- 
stricted to  this  Universal  principle.  This  law  is  every- 
where. This  is  God's  law.  These  we  must  all  obey.  They 
are  inexorable  and  cannot  be  escaped.  The  violation 
of  any  of  them  brings  sure  and  speedy  punishment.  It  is 
impossible  to  imagine  the  existence  of  a  law  without  at 
the  same  time  recognizing  the  right  to  administer  pun- 
ishment for  its  violation.  Without  this  no  law  could 
exist. 

In  a  more  limited  sense,  and  as  applied  to  political 
society,  laws  are  mere  rules  of  right  found  by  experi- 
ence and  dictates  of  natural  justice  to  be  due  to  every 
member  of  society.  These  rules  are  more  or  less  com- 
plex in  proportion  as  the  wants  are  few  or  many.  In  the 
earliest  stages  of  the  development  of  the  human  race, 
man's  wants  were  few  and  the  range  of  his  abilities  to 
gratify  them  proportionately  large.  The  occasion  was 
wanting  producing  conflicts  of  interest.  His  actions  were 
not  confined  to  any  limited  territoiy,  and  his  desires  were 
circumscribed  by  the  simplest  necessities,  which  he  sup- 
plied from  the  wild  flocks  and  herds,  and  from  the  fruits 

V 


vi  Inteoduction 

of  the  wildeiiiess.  Each  man  drew  from  these  sufficient 
to  supply  his  immediate  wants,  and  in  turn  abandoned  to 
any  other  who  might  capture. 

Following  the  creation  of  man,  came  the  right — the  in- 
herent law,  to  supply  his  wants  from  the  abundance 
of  nature.  This  was  the  primal  rule  of  man's  action. 
Every  man  had  this  right.  Each  had  the  right  to  pro- 
tect himself  from  the  severities  of  heat  and  cold  and  to 
this  end,  could  appropriate  the  skins  of  animals  to  make 
clothing;  his  hunger  he  appeased  with  their  flesh  and 
from  the  fruits  of  the  forest.  The  right  to  life,  the 
right  to  personal  security  and  the  right  to  seek  his  hap- 
piness, came  also  as  the  absolute  law  of  his  existence. 
Originally  to  maintain  these  rights,  intact  to  each  per- 
son, presented  no  problem  of  great  difficulty.  Few  or 
no  violations  could  occur,  as  long  as  there  were  no  con- 
flicts of  interests.  But  by  steady  stages,  population  has 
increased  and  wants  have  multiplied;  nature's  source  of 
supply  diminished,  and  hence  came  the  clash  of  contend- 
ing interests.  Nature  has  implanted  within  every  man 
a  conscientiousness  of  these  inherent  rights,  as  well  as 
the  right  to  maintain  them,  and  the  right  to  punish  an- 
other for  their  violation. 

In  the  light  of  historic  disclosures,  during  the  past  and 
present  centuiy,  there  is  no  good  reason  to  suppose  that 
man's  existence  is  confined  to  a  few  thousand  years,  as 
lieretofore  connnonly  conceded.  For  a  long  period  sub- 
sequent to  liis  creation,  if  lie  had  any  laws,  they  must 
liave  been  of  the  i-udest  character.  This  period  of  his 
existence  is  cast  in  the  night  of  the  past,  and  we  can 
only  conjecture  liis  condition,  llis  development  into  the 
rudest  bar])arisni  was  accomplished,  no  doubt,  after  a 
hiiig  lapse  (»r  time.  The  first  we  know  of  him  as  a  social 
creature,  is  when  he  fonued  into  communal  bands  and 
intennan-viiig  gioujjs.  As  u])  to  this  time  we  are  left 
to  coiijecturc,  we  might  really  suppose  that  the- popu- 
lation was  HO  sparse  that  in  roHowing  tlie  dictates  of  tliese 


Introduction  vii 

natural  rights,  there  were  few  or  no  conflicts  of  interests. 
But  as  population  grew  and  many  persons  came  to  claim 
their  natural  rights  in  the  same  thing,  then  came  the  ne- 
cessity of  forming  themselves  into  communities,  with 
the  object  of  maintaining  their  common  interests.  These 
first  notions  of  government  were  crude,  but  the  principle 
involved  was  the  same  then  as  now,  the  object  the  same — 
the  protection  of  each  in  his  rights. 

It  is  in  the  nature  of  things  impossible  for  two  persons 
to  have  a  right  in  the  same  thing,  and  yet  at  the  same 
time  each  enjoy  the  full  benefit  of  it.  In  order  to  reach 
the  highest  degree  of  enjoyment,  one  or  the  other  must 
relinquish  his  right.  If  this  cannot  be  done,  then,  there- 
of necessity  must  be  constant  conflict  and  anarchy,  unless 
such  persons  can  come  to  some  equitable  understanding 
between  themselves  as  to  the  proper  enjoyment  of  the 
thing.  Thus  men  having  common  natural  rights — rights 
that  are  guaranteed  by  nature's  laws,  in  and  to  all 
things  of  the  material  universe — must  agree  among  them- 
selves how  they  may  be  enjoyed.  Hence  the  creation  of 
governments  as  the  instruments  for  maintaining  these 
rights.  Whether  these  rights  are  justly  maintained  to  all 
alike,  depend  upon  the  notions  entertained  by  the  par- 
ticular government.  A  government  may  be  good  or  bad 
in  proportion  as  it  is  just.  Whether  it  is  just  depends 
largely  upon  the  notions  respecting  the  rights  of  the 
people. 

The  association  of  men  in  some  kind  of  government,  to 
which  the  power  is  delegated  for  the  purpose  of  protect- 
ing, adjusting  and  extending  their  rights,  is  absolutely 
necessary  for  the  promotion  of  harmony  and  happiness 
among  them.  Hence  we  conclude  that  governments  are 
God-given,  and  are  the  result  of  those  natural  laws,  which 
adjust  themselves,  to  the  conditions  and  necessities  of 
the  human  family.  At  different  periods  of  the  race,  many 
forms  of  government  have  prevailed.  Some  of  them  have 
not  guaranteed  a  very  high  degree  of  security  to  life  and 


viii  Introduction 

protection  of  property.  But  it  is  believed  that  all  gov- 
ernments of  whatever  kind,  in  one  way  or  another,  as- 
sume to  punish  for  the  interference  with  the  life  or  per- 
sonal security  of  their  subjects,  as  well  as  to  grant  re- 
dress for  the  infringement  of  property  rights. 

As  we  have  previously  remarked,  we  cannot  imagine 
a  condition  of  society,  which  would  not  somewhere  lay 
the  power  to  punish  its  members  for  violation  of  its  laws. 
In  some  barbarous  nations  in  cases  of  homicide,  this 
power  was  granted  to  the  immediate  relatives  of  the  de- 
ceased, who  out  of  pure  revenge,  might  take  the  life  of 
the  slayer.  In  the  Germanic  nations  a  murderer  was  per- 
mitted to  acquit  himself  by  paying  a  fine,  a  portion  go- 
ing to  the  deceased's  relatives,  and  the  balance  to  the 
king's  revenues.  This  seems  to  have  been  the  law  of 
England  prior  to  the  battle  of  Hastings,  for  we  read 
that  this  fine — weregeld — crime  money — was  propor- 
tioned as  follows:  The  king  paying  six  times  as  much 
as  the  thene,  and  the  thene  four  times  as  much  as  the 
ceorl  or  slave.  The  distinction  between  the  degrees,  or 
whether  the  homicide  was  blameless,  seems  not  to  have 
entered  into  the  consideration  of  such  laws.  Homicide 
committed,  in  the  absence  of  organized  government,  in  a 
mere  state  of  nature,  could  no  doubt  be  justifiably  pun- 
ished by  any  person  out  of  revenge  for  the  life  of  the 
slain.  There  is  high  authority  for  this  proposition,  the 
most  venerable  being  Sir  William  Blackstone,  who  rea- 
sons that  authority  necessarily  rests  somewhere.  This 
view  is  further  sustained  by  the  Scriptures  in  the  case  of 
Cain:  the  consciousness  rested  upon  him  that  whoso 
should  find  him  might  slay  him.  The  security  to  life  is 
the  foundation  to  all  other  rights,  for  without  life  no 
other  right  can  exist.  The  primary  object  of  goveniment 
is  to  protect  life,  and  those  rights  which  are  incident  to 
the  enjoyment  of  it.  The  primaiy  law  that  all  rights 
pertaining  to  the  individual  might  be  maintained  by 
force  cannot  in  the  very  nature  of  the  case  have  applica- 


Introduction  ix 

tion  to  the  redress  for  the  loss  of  life.  Life  being  gone, 
the  power  individually  to  seek  revenge  or  redress  is 
gone.  All  other  rights  not  affecting  the  life,  may,  to  a 
limited  degree,  be  maintained  by  force.  In  the  very  na- 
ture of  things,  it  becomes  necessary  to  delegate  the  power 
of  punishment  to  some  one.  The  power  should  not  be 
delegated  to  the  injured  person,  for  because  of  ties  of 
kinship,  interest  or  mere  wantonness  or  cinielty  he  might 
unjustly  condemn,  where  excuse  or  justification  were 
present.  Hence  in  all  forms  of  government,  the  power 
has  been  delegated  to  the  government  to  punish  for 
crime.  It  is  believed  to  be  true  that  all  governments 
in  one  form  or  another,  either  perfectly  or  imperfectly 
assume  to  enforce  such  rules  and  regulations. 

Punishment  is  the  correlative  of  law,  and  as  a  natural 
sequence  follows  its  violation,  and  it  would  be  impos- 
sible for  law  to  exist  without  the  accompanying  power 
to  inflict  punishment.  The  power  exists  as  a  natural 
right;  otherwise  law  could  not  exist  and  chaos  and  dis- 
order would  prevail  in  everything  and  eveiywhere.  The 
establishment  of  government  is  the  outgrowth  of  neces- 
sity, because  it  maintains  among  men  the  highest  degree 
of  happiness,  and  a  uniformity  of  rights  and  privileges. 
This  object  cannot  obtain  unless  all  persons  are  forced 
to  observe  the  rights  of  others.  This  power  of  the  gov- 
ernment to  enforce  respect  for  the  rights  of  others,  seems 
not  to  have  been  denied,  but  upon  the  contraiy  to  have 
been  admitted  by  all  writers  upon  political  economy. 
But  the  manner  and  extent  to  which  the  power  may  be 
exercised  has  been  a  fruitful  source  of  contention,  and 
many  are  found  who  advocate  severe  punishment  as  the 
surest  means  of  enforcing  the  law,  while  others  insist 
upon  tempering  the  punishment  with  brevity  as  well  as 
with  mercy.  There  can  be  no  doubt  about  the  govern- 
ment having  the  absolute  right  to  inflict  punishments. 
Penalties  should  be  uniform,  and  in  proportion  to  the 
enormity  of  the  crime.    It  may  well  be  doubted  whether 


X  Introduction 

a  government  has  the  right  to  inflict  capital  punishment 
for  the  violation  of  municipal  laws,  but  it  is  generally 
admitted  by  all  that  a  government  has  the  right  to  in- 
flict death  in  cases  of  murder.  Sir  William  Blackstone, 
as  we  have  already  had  occasion  to  refer,  justifies  the 
right  of  the  goverimaent  to  inflict  the  death  penalty  in 
cases  of  murder,  for  the  reason  that  in  a  state  of  nature, 
eveiy  person  would  have  the  right  to  do  so,  and  since 
any  person  would  have  this  right  in  the  absence  of  gov- 
ernment, that  a  fortiori  the  government  would  have  the 
right  as  the  delegated  agent  of  the  individual. 

Every  person  has  the  right  to  life,  but  may  in  some 
instances  forfeit  it,  at  least  this  is  the  conceded  doc- 
trine. Under  the  old  English  law  which  had  its  founda- 
tion in  the  usages  and  customs  of  the  Anglosaxons,  in 
certain  cases,  the  criminal  became  an  outlaw,  and  in  this 
sense  was  beyond  the  pale  of  govermnental  protection, 
being  regarded  as  an  enemy  to  the  human  family,  and 
as  such  had  no  right  to  life,  and  it  was  no  crime  for  any 
person  to  kill  him.  No  such  doctrine  has  been  recognized 
in  the  American  states,  but  the  death  penalty  for  the  vio- 
lation of  law  is  recognized  and  enforced  in  quite  all  the 
states  in  other  than  murder  cases.  It  is  hardly  the 
province  of  a  writer  of  text  law  to  indulge  in  speculation 
as  to  what  would  under  certain  conditions  be  the  proper 
theory  of  government,  but  his  duty  is  to  record  what  the 
law  is.  The  living  law  is  what  the  student  as  well  as 
the  casual  reader  wants.  Hence  we  say  that  whatever 
our  individual  view  might  be  in  regard  to  the  infliction 
of  the  death  penalty  for  the  violation  of  municipal  law, 
could  add  but  little  for  or  against  the  fact  that  all  gov- 
ernments, both  ancient  and  modeni,  we  believe,  without 
an  exception,  assume  the  right  to  punish  crime  by  in- 
flicting death.  The  prevailing  idea  is  that  governments 
assume  the  right  to  inflict  punishments  for  the  mere  pur- 
pose of  reforming  the  offender,  and  to  deter  others  from 
committing  like  offenses.     This  theoiy  is  humane,  but 


Introduction  xi 

experience  teaches  that  punishment,  especially  severe 
and  rigid  penalties,  do  not  reform  the  offender.  Every 
person  has  the  inalienable  right  to  life,  liberty  and  the 
right  to  hold  and  acquire  property,  and  governments  are 
created  for  the  purpose  of  protecting  these  rights,  and 
this  power  to  protect  them  is  an  absolute  one.  The  power 
to  inflict  penalties  in  protecting  the  rights  of  the  people 
is  derived  from  the  Creator  or  from  the  laws  of  nature 
and  is  an  inalienable  attribute. 

The  administration  of  criminal  law  does  not  sustain  the 
same  relation  to  the  government  as  that  of  civil  law.  That 
side  of  the  government  which  seeks  to  make  certain  acts 
and  omissions  penal  derives  its  authority  from  the  ne- 
cessity of  protecting  the  community  from  the  aggres- 
sions of  those  who  violate  those  rights  possessed  by 
each  individual,  which  aggressions  by  reason  of  their 
enormity  and  evident  tendency  to  disturb  the  public 
peace  come  under  the  immediate  supervision  of  the  gov- 
ernment. Because  of  the  high  rights  so  invaded,  instead 
of  estimating  the  injury  to  the  individual  from  a  com- 
pensatory view,  the  govenmient  lends  a  penal  sanction. 
Although  these  rights  are  the  most  sacred  and  in  many  in- 
stances may  be  personal  to  individuals,  yet  the  commu- 
nity as  an  entity  representing  each  individual  possesses 
the  higher  and  better  right  to  have  such  acts  suppressed. 
Such  cases  give  no  right  of  private  redress  to  any  one. 

So,  that  men  may  live  together  in  peace  and  harmony, 
and  that  the  highest  degree  of  happiness  may  be  reached 
and  enjoyed  by  all,  it  becomes  necessary  for  each  to  re- 
linquish certain  of  his  rights  to  which  he  might  other- 
wise be  entitled. 

These  introductory  observations  would  be  incomplete 
without  recalling  the  unifoi-m  tendency  of  the  human 
race  to  free  itself  from  the  thraldom  of  its  environment. 
The  oft  recurring  attempt  to  fonn  rules  and  regulations 
for  its  guidance,  clearly  demonstrates  that  the  object  has 
always  been  to  correct  the  evils  imposed  upon  itself — to 


-xii  Introduction 

set  up  at  least  a  semblance  of  justice — a  justice  founded 
upon  self  presentation.  In  the  appendix  to  this  work 
may  be  found  examples  of  some  of  the  oldest  attempts 
to  establish  law,  the  oldest  concepts,  now  extant,  marking 
the  powers  of  government.  Although,  in  the  main,  these 
attempts  are  free  from  veneer,  yet,  on  the  whole,  very 
much  the  shadow  of  our  own  enlightened  society.  The 
principles  are  the  same,  and  an  effort  to  punish  each, 
for  the  self  imposed  encroachments  of  the  other.  Our 
laws  are  but  a  reflex  of  these  early  efforts  to  establish 
justice  among  men. 

Such  is  a  general  outline  of  government  and  the  power 
to  protect  the  rights  of  the  people  under  them,  and  to 
give  redress  and  inflict  punishment  for  the  violation  of 
law. 


TABLE  OF  CONTENTS 


PART  ONE 
General  Principles 


INTRODUCTION 

CHAPTER  I. 

SOURCES    OF    OUR    CRIMINAL    LAWS. 


PAGE 
9 


2.  Laws  of  the  parent  country 

3.  Original   settlers    2 

4.  The  derivation  of  our  criminal  law 2 

5.  Under  the  constitution   common  law   may   be   resorted   to   for 

definition  and  description  of  crime 3 

6.  No  authority  for  common  law  jurisdiction  in  the  United  States 

courts    ^ 

7.  Fundamental  law  of  the  land 4 

8.  Extracts  from  the  Constitution 5 

9.  Prohibitions  to  the  states 6 

10.  Bills  of  attainder   7 

11.  Includes  bills  of  pains  and  penalties 7 

12.  Ex  post   facto   law 8 

13.  Further  instances  and  explanations 8 

14.  Of  law  which  alter  the  rules  of  evidence 9 

15.  Under  the  provisions  of  the  Texas  statute 12 

16.  Bill  of  rights 12 

17.  Illustrations    14 

18.  Divisions    of    Government 14 

19.  Legislatures  restricted  by   the   Constitution 15 

20.  Legislatures  are  conducted  under  their  own  rules 15 

21.  Distinction  between  judicial  and   legislative   powers 16 

22.  Court  made  laws 17 


CHAPTER  II. 

DIVISIONS    OF    CRIMES    IN    GENERAL. 

24.  Division  of  crimes  at  common  law 19 

25.  Petit  treason  and  its  incidents 20 

xiii 


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28. 

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33. 

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Difference  between  treasons  and  felonies  at  coninion  law 21 

Overt  act  necessary  to  be  shown  in  treason 21 

Misprisions    22 

As  to  wliat  required  in  indictment 23 

Important    distinctions     23 

The  right  to  kill  to  prevent  felony 23 

What  is  compounding  of  felony 23 

Doctrine  as   applied   to  misdemeanors 24 

No   misprision  of   misdemeanors 24 

FELONIES. 

§      35.     Forfeiture  of  goods  and  estates  at  common  law 25 

MISDEMEANORS. 

§      36.     All  crime  below  felonies  misdemeanors 26 

§      37.     Police  regulations,  cities,  state,  etc 27 

§      38.     Of  the  classes  of  police  regulations 28 

§      39.     Misdemeanors  mala  prohibita ;  what  are 28 

§      40.     Nuisances  possess  both  civil  and  criminal  character 28 

CHAPTER  III. 

OP    THE    MILITARY    LAWS. 

§      41.     Laws  of  every  nation  necessarily  divided  into  two  departments  31 

§      42.     Responsibility  to  two  laws  at  the  same  time 32 

§      43.     Military  rules  and  regulations  are  not  in  a  strict  sense  a  part 

of  the  criminal  law    33 

§      44.     Military  power  inherent  in  every  government 34 

§      45,     Of   the   law   martial 35 

§      46.     Crimes  committed  in  the  army  and  navy 37 

§      47.     Of  court  martial   38 

§      48.     Who  may  convene  a  court  martial 39 

§      49.     Of  the  territorial  jurisdiction  of  the  military 39 

§      50.     No  power  in  the  civil  courts  to  review  proceedings  in  a  court 

martial,  except  for  a  want  of  jurisdiction 40 

§      51.     Conviction  in  the  military  courts  no  bar  to  prosecution  in  tlie 

state  court,  or  in  the  Federal  courts 41 

§      52.     International    comity    42 

§      53.     Juri.sdiction  is  confined  over  all  persons  in  Ihe  service 43 

§      54.     Juri.sdiction  attaches  when    44 

8      55.     Who  is  sul)ject  to  military  duty 45 

8      50.     State  militia  under  supervision  of  Fnited  States  wlien 45 

CHAPTER  IV. 

INTEKNATIO.NAL    LAW    AS    AFTKCTINQ    CRIMES. 

8      57.     OfPcnHes  ngninat   nations    47 

8      58.     Intermitional   law    48 


Table  of  Contents  xv 

PAGE 

59.  Each   nation   is   sovereign 48 

60.  Comity  of  nations   49 

61.  Allegiance  of  the  citizen 49 

62.  Of   piracy    49 

6."^.     Jurisdiction     •''" 

G4.     Laws  of  the  United  States ''1 

05.     The  laws  of  the  United  States  as  to  foreigners 52 

66.  Slave    trade    *52 

67.  Ambassadors     53 

68.  Surrender  of   fugitives   from   justice 54 

69.  Between  the  states 54 

70.  Trial  for  crime  other  than  the  crime  extradited 55 

CHAPTER  V. 

JURISDICTION. 

71.  Territorial  jurisdiction  of  the  United  States 57 

Every  nation  has  jurisdiction  over  the  high  seas 58 

United  States  has  jurisdiction  of  piracy  over  high  seas 59 

Maritime  and  admiralty  jurisdiction 59 

Out  of  the  jurisdiction  of  any  particular  state 60 

State  and  counties  bordering  on  sea  coast 60 

Criminal  jurisdiction  of  the  United  States,  in  the  circuit  and 

district   courts    61 

78.  The  jurisdiction  of  the  state  is  commensurate  with  its  boun- 

daries      62 

79.  Of  the  validity  of  judgments 63 

80.  Judgment  in  courts  of  general  jurisdiction 64 

81.  A   judge  has   no   jurisdiction   to   render   judgment    where   in- 

terested      65 

82.  Consent  of  parties  cannot  confer  jurisdiction 65 

83.  Courts  must  be  held  where  law  provides 66 

84.  Courts  of  concurrent  jurisdiction 67 

85.  As  to  superior  and  inferior  courts 67 

86.  Presumption  of  courts  of  record,  judgments  of 68 

87.  Jurisdiction  conferred  by  constitutions  and  laws 69 

88.  Courts  have  no  jurisdiction  over  mere  political  questions '69 

89.  State  courts  have  no  jurisdiction  over  places  ceded  to  United 

States   • 70 

90.  Generally   courts   may    not    interfere    in    the    performance    of 

duties  of  officers   70 

91.  Larceny,  jurisdiction  of  at  common  law,  as  to  different  coun- 

ties     ••••  71 

92.  Difference   of  larceny  committed  in  foreign  state  and  states 

of   Union   i 72 

93.  Jurisdiction  as  to  larceny  continued 73 

94.  Jurisdiction  of  larcenv  continued  and  discussed 74 


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xvi  Table  of  Contents 

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§      95.     Jurisdiction  as  to  conspiracies 75 

§      96.     Jurisdiction  of  homicide  on  border  of  state 76 

§      97.     Jurisdiction  as  to  false  pretenses,  cheats,  etc 76 

§      98.     Where  a  crime  is  committed  in  two  jurisdictions 77 

§      99.     Same,   continued    78 

§    100.     Same,   continued    79 

§    101.     Same,   continued    79 

CHAPTER  VI. 

PERSONS    EXEMPT    FROM    CRIME. 
IDIOTS. 

§    103.     Idiots  and  lunatics  freed  from  responsibility 82 

§    104.     Lucid   interval    83 

§    105.     Different   species  of  insanity 84 

§    106.     The  decision  in  the   McNaughton  case 84 

§    107.     The  rule  in  insane  delusion,  as  to  supposed  and  unreal  facts.  .  87 

§    108.     The  right  and  Avrong  theory  of  insanity 88 

§    109.     The  burden  is  on  the  defendant  to  show  incapacity 89 

§    110.     Not  in  accord  with  doctrine  of  irresistible  impulse 89 

MORAL    INSANITY. 

§    111.     Defined     90 

IRRESISTIBLE    IMPULSE. 

§    112.     Defined    91 

§    113.     Must  be  act  of  diseased   mind 92 

INTOXICATION. 

§    114.     Intoxication  may  be  shown  as  a  mitigation  of  the  crime  and 

to   negative  malice    93 

Where  one  imbibes  liquor  to  nerve  himself  to  commit  crime.  .  95 

Result  of  experience  as  to  those  who  commit  crime 95 

The  result  of  voluntary  intoxication  in  homicide 96 

Application  of  the  rule  to  hypnotic  influences 97 

Involuntary  intoxication,  what  is 98 

The  defendant  in  criminal  case  is  presumed  to  be  sane 99 

Further   discussion    99 

Pleadings  of  tlie  defendant  in 100 

Of  the  amount  and  extent  of  proof,  etc 100 

Proof  of  malice  in  criminal  cases  must  be  beyond  reasonable 

doubt    101 

Iii.saiiily  .sliowii  is  presumed  to  continue 104 

Dissenting  opinions  of  judges 107 

Nonexpert    witnesses     108 


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Table  of  Contents  xvii 

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§    129.     Expert  witnesses   109 

§    130.     Where  the  defendant  became  insane  after  conviction 110 

INFANTS. 

§    131.     Infants  under  seven  years  of  age Ill 

§    132.     Persons  under  the  age  of  fourteen 112 

§    133.     Eule   in    the    southern    states 113 

MARRIED    WOMEN. 

§    134.     Presumption  as  to  married  women 113 

§    135.     Presumption  does  not  extend  to  felonies 114 

§    136.     Common  law  rule  modified  by  statute 115 

§    137.     Is  a  prima  facie  presumption  only 116 

DURESS. 

§    138.     Defendant  not  responsible  if  he  is  forced  to  commit 116 

§    139.     Fraud  or  subterfuge  duress 118 

§    140.     Guilt  always  follows  those  who  have  the  intent 120 

CORPORATIONS. 

§    141.     Corporations  held  for  crime  mala  prohibita 120 

§    142.     Early  history  of  corporations 122 

§    143.     For  what  acts  a  coi-poration  may  be  indicted 123 

§    144.     Where  the  common  law  cannot  reach,  the  legislature  may....  124 

IGNORANCE  OF  THE  LAWS. 

§    145.     Ignorance  of  the  law  excuses  no  man 125 

§    146.     Justice  requires  that  general  rule  have  exceptions 125 

§    147.     Exception  to  the  rule  that  all  persons  are  presumed  to  know 

the  law    126 

§    148.     Exceptions  in  the  case  of  larceny 126 

§    149.     Further   discussion    127 

§    150.     Where  the  laws  are  plain  and  beyond  doubt 128 

IGNORANCE    OF    FACTS. 

§    151.     Ignorance   of   facts   excuses   crime 129 

§    152.     Mistake    130 

§    153.     Homicide  committed  under  misconception  of  facts,  excusable.  131 

CHAPTER  VII. 

CRIMINAL   INTENT. 

§    154.     Criminal  intent  precedes  criminal  act 133 

§    155.     A  purpose  to   commit   a   specific   crime 133 


xviii  Table  of  Contents 

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§    156.     A  purpose  to  commit  a  specific  crime  and  through  mistake,  a 

different   crime  is  committed 134 

§    157.     Accident  or  mistake  where  act  does  not  amount  to  crime 134 

§    158.     The  criminality  or  noncriniinality  of  crime  of  an  evil  intent.  .  135 

§    159.     Eule  where  the  intent  is  to  commit  a  specific  crime 136 

§    160.     Malignity  of  the  intent  is  measured  by  the  crime  intended. .  .  137 

§    161.     Further  discussed    138 

§    162.     Where  one  by  his  wrongful   act  causes  another  to  injure   a 

third  person  139 

§    163.     Where  there  are  reckless,  cruel  and  wanton  acts 140 

§    164.     Innocent  purpose,  but  act  characterized  by  carelessness 141 

§    165.     Eule  where  one  is  in  the  pursuit  of  lawful  business 142 

MALICE. 

§    166.     What    constitutes    143 

MURDER. 

§    167.     Defined  and  explained  as  to  elements  of  malice 143 

§    168.     Common  rule  in  the  perpetration  of  rape,  etc 144 

§    169.     Same  under  statute    145 

§    170.     Malice  is  shown  by  the  manner  and  the  means,  etc 146 

§    171.     Consequences  of  reckless  and  wanton  acts 147 

ARSON. 

§    172.     Of  the  quality  of  malice 148 

MALICIOUS    MISCHIEF. 

§    173.     Ill  will  must  be  shown  against  the  owner  of  property 148 

LIBEL. 

§    174.     What  is  libel,  per  se,  etc 149 

§    175.     Malice  in  the  foregoing  crime  different  in  degree  only 150 

PARENT    AND    CHILD. 

§    176.     Of  the  duties  and  obligation  of  parent 150 

§    177.     Mutual  obligations  of  parent  and  child 151 

§    178.     Duty  tlie  strong  owe  to  the  weak 152 

§    179.     Parent  has  no  right  to  enforce  obedience  to  illegal  act 153 

§    180.     Punislinient  must  be  administered   free   from  malice 154 

§    181.     The  parent  may  under  some  circumstances  kill  to  i)rotoct  the 

child    154 

HUSBAND    AND    WIFK. 

§    182.     Ah  to  tlie  intent  of  the  wife  while  under  the  coersion  of  the 

husband    154 

li    183.     Wifp 's   defense    155 


Table  of  Contents  xix 

TEACHERS  AND  INSTRUCTORS.  PAGE 

§    184.     The  teacher's  intent  in  correcting  child  pupil 155 

§    185.     Guardian  and  ward    157 

CHAPTER  VIII. 

PRINCIPALS   AND  ACCESSORIES. 

§  186.  Principals   and    accessories    distinguished 158 

§  187.  Principals  of  the  first  and  second  degree 159 

§  188.  All  persons  engaged  in  the  commission  of  a  crime,  principals.  159 

§  189.  Difference  between  accessories  and  principals  in  second  degree.  160 

§  190.  Offenses  at  common  law  having  no  accessories  before  the  fact.  161 

§  191.  Accessories  before  the  fact  defined 162 

§  192.  Principal  actor  must  do  the  thing  agreed  upon 163 

§  193.  Accomplice  defined    164 

§  194.  Government  may  discharge  accomplice  on  agreement  to  testify.  164 

§  195.  What  must  be  done  by  the  informer  to  establish  immunity..  165 

§  196.  Testimony  of  accomplice  must  be  corroborated 166 

§  197.  What  constitutes  accessory  after  fact 167 


CHAPTER  IX. 

FORMER    JEOPARDY. 

This  is  a  law  of  universal  conscience 168 

As  to  state  and  Federal  governments 169 

Constitutional    provisions     169 

State  and  Federal  governments  distinct 170 

As  to  the  administration  of  military  laws 170 

Courts  of  concurrent  jurisdiction 171 

One  criminal  cannot  atone  for  his  brother  in  crime 172 

All  participators  in  crime  punished 173 

Jeopardy  is  applicable  to  offenses  of  common  elements 174 

Different  crime  proceeding  from  same  facts 175 

Minor  offenses  included  in  greater 176 

Same,  continued    177 

WHAT     CONSTITUTES     JEOPARDY. 

As  to  indictment    179 

Variance   between   indictment   and   proof 179 

Court  of  the  indictment  must  have  jurisdiction 180 

Different   counts    181 

New  trial  and  arrest  of  judgment 182 

Further  considered    183 

State  in  a  criminal  case  has  no  right  to  appeal 183 

Two  offenses  committed  bv  the  same  act 184 


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XX  Table  of  Contents 


PAGE 

Larceny  from  different  persons  at  the  same  time 185 

Passing  forged  paper,  etc 186 

Cardinal  doctrine  of  jeopardy,  what  is 187 

Test  of  the  rule 187 

Arraignment    188 

Discharge    of    jury 189 

Failure  of  jury  to  agree 190 

WAIVER  OF  RIGHTS. 

What  is  190 

At  common  law   191 

In  American  states    192 

Eights  that  cannot  be  waived 192 

Implied   consent   to   waiver   sufficient 193 

The  authority  of  council  to  waive 193 

Summary    194 

Nolli  prosequi    194 


CHAPTER  X. 

CRIMINAL    PRESUMPTIONS. 

Presumptions  part  of  the  criminal  law 196 

Wiiat  are  presumptions  of  law 197 

Presumptions   how   created 198 

Criminal   trial    199 

Presumption  defined    199 

Rebuttable  presumptions   200 

Tlie  burden  of  proof 200 

Of  the  primia  facie  case 200 

Presumptions   of    fact 201 

All  persons  presumed  to  do  those  things  rociuiied  by  law 201 

Corpus   delicti    202 

Defendant 's  duties   202 

Presumptions  as  to  conspirators 203 

Presumptions  as  to  possession  of  recently  stolen  property....  204 

Further    considered     205 

Presumptions   as    to    those    absenting   themselves    beyond    tlie 

state   205 

Presumption  of  continuance  of  life 207 

Presumptions  as  to  married  women 208 

Sanity   is   presumed    209 

All  persons  arc  presumed  to  l)e  normal  in  their  physical  condi- 
tion      209 

Presumption  of  the  probal)le  results  of  a  man's  act 210 

Presumption  as  to  persons  under  the  age  of  seven  years 211 


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Table  of  Contents  xxi 

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§    255.     Presumptions  as  to  females  under  the  age  of  ten 212 

§    256.     Taking  property  openly  and  notoriously 212 

§    257.     All  persons  are  presumed  to  know  the  law 213 

§    258.     Malice  is  presumed  from  the  use  of  a  deadly  weapon 214 

§    259.  Presumption  where  one  dies  more  than  a  year  and  day  from 

wound    2^^ 

§    260.     Defendant  is  presumed  to  be  of  good  character 216 

§    261.     Conflict    of    presumptions 217 

§    262.     Defendant  fleeing  country,  presumption  of 218 

§    263.     Defendant 's  right  to  explain 219 

§    264.     Presumption  from  the  fabrication  of  evidence 220 

§    265.     Courts  are  presumed  to  take  notice,  etc 220 

§    266.     Presumption  of  guilt  from  judicial  confession 221 

§    267.     Dying  declaration  presumed  to  be  true 221 

§    268.     Presumption  as  to  the  testimony  of  an  accomplice 222 

§    269.     Presumption  as  to  officers,  etc 223 

CHAPTEE  XI. 

CONFESSIONS. 

§    270.     Admissions  and  confessions    224 

§    271.     Confessions,  the  effect  of 225 

§    272.     Classes   of   confessions 226 

§    272a.  The  effect  of  a  plea  of  guilty  in  open  court 227 

§    273.     Confessions  facts  to  be  proven 227 

§    274.     Confession   defined    228 

§    275.     Admissibility  is  for  the  court 229 

§    276.     Inducement    230 

§    277.     Persons  in  authority    230 

§    278.     Excluding   confessions    231 

§    279.     Must  be  voluntary 232 

§    280.     Proof   of   admonition 233 

§    281.     The   test    234 

§    282.     Threats  of  a  mob 235 

§    283.     Confessions  at  common  law 235 

§    284.     At  the  time  of  arrest  demeanor  given  in  evidence 236 

§    286.     Silence  as  a   confession 237 

§    286.     Confession  only  binds  the  person  making  it 238 

§    287.     Confession  of  principal,  accessory,  etc 239 

§    288.     As  to  second  confession 240 

§    289.     No  examining  courts  at  common  law,  as  confession 240 

§    290.     Confession   obtained   through   fraud 241 

§    291.     Confession  while  drunk 242 

§    292.     Confession  by   persons  incapacitated 242 

§    293.  Confession  of  defendant  voluntarily  testifying  in  his  own  be- 
half         243 


xxii  Table  of  Contents 

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§    294.     Inadmissible  confession  cannot  be  used  for  impeachment 244 

§    295.     Admission  of  former  marriage,  confession 244 

§    296.     Confession  by  third  parties 245 

CHAPTEE  Xn. 

PARDONING   POWER. 

Pardoning  power  in  the  Crown 246 

The  power  to  grant  pardons  in  the  American  states  is  with 

the   executive    247 

Cases  where  the  Crown  had  no  power  to  grant  pardons 247 

The  power  is  in  the  president  and  congress  cannot  abridge  it.  248 

Of  the  definitions,  and  the  divisions  of  pardons.  ." 250 

The  effect  of  an  unconditional  pardon 251 

Conditional  pardon,  what  must  contain 253 

General  pardon,  amnesty,  etc 254 

Imposition  practiced  upon  pardoning  power  vitiates  it 255 

The  pardon  must  be  delivered  and  accepted 256 

The  right  to  exercise  pardoning  power  is   one  purely  of  dis- 
cretion      257 

Courts  will  take  judicial  knowledge  of  the  granting 258 

The  president  of  the  United  States  cannot  pardon  impeach- 
ment     258 

Contempts  and  crimes  may  be  pardoned 259 

The  effect  of  a  pardon 259 

CHAPTER  XIII. 

SENTENCE   AND   PUNISHMENT. 

§  312.  Punishment  at  common  law 261 

§  313.  Punishment  of  felonies 261 

§  314.  Other  consequences  follow  conviction  for  crime 262 

§  315.  Punishment  in  the  absence  of  statute 263 

§  310.  Some  of  the  punishments  of  common  law  obsolete 264 

§  317.  Punishment  of  common  scolds 264 

§  318.  Benefit    of   clergy 265 

§  319.  In   the   absence   of   statute,   common   law   punishment   may   be 

used    266 

{}  320,  Punishment  at  common  law  was  of  two  fold  character 266 

§  321.  Sentence  wlien  imposed 267 

§  322.  Sentence  must  be  in  conformity  to  law 267 

§  323.  Cruel   and    unusual    punishments 268 

§  324.  Modification    of    sentence    269 

§  325.  I'unishmcnt  must  be  inflicted  as  the  .statute  provides 272 

§  326.  Cumulative   statutes    273 

§  326a.  DifTercnt  punishment  for  different  sexes 274 


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Table  of  Contents  xxiii 

PART  TWO 
Specific  Crimes 


CHAPTER  XIV. 

ADULTERY.  PAQK 

§    327.     Was  not  a  crime  at  common  law 27fi 

§    328.     Definition 277 

§    329.     Common,  Roman  and  Canon  law 278 

§    330.     Under    statutes    279 

§    331.     As    to    whether    in    the    commission    of    the    crime    of    incest, 

bigamy,  adultery  may  be  committed  in  the  same  act 280 

§    331a.  Indictment    281 

CHAPTER  XV. 

AFFRAY. 

§    332.     Definition     283 

§    333.     Gravamen  of  the  crime 283 

§    334.     What    constitutes    -8.4 

§    335.     May  be  committed  short  of  blows,  when 284 

§    336.     Compared  to  riot,   rout 285 

§    337.     Fighting  in  self  defense 286 

CHAPTER  XVI. 

ARSON. 

§    338.     Definition     287 

§    339.     What   includes 287 

§    340.     Barns  in  the  fields 288 

§    341.     Extensions  of  statutes 289 

§    342.     Owner  of  house 289 

§    343.     Wife 's  house    291 

§    344.     Total   destruction   not   necessary 291 

§    345.     Of  the  attempt 292 

§    345a.  Attempt  at  arson,  substantive  crime 293 

§    345b.  Intent    293 

CHAPTER  XVn. 

ASSAULTS    AND    BATTERY. 

§    346.     Definition   and   illustration 295 

§    347.     Present  ability  must  be  taken  from  standpoint  of  defendant.  296 

§    348.     Distinction  between  assault  and  battery 298 


xxiv  Table  of  Contents 

PAGE 

§  349.     Physical  force  necessary 299 

§  350.     Intent  and  ability  must  concur 300 

§  351.     Specific  intent  not  necessary 300 

§  352.     The  means   used    301 

§  353.     Of  the  consent  of  the  assailed 302 

§  354.     Simultaneous  language  in  explanation  of  assault 303 

§  355.     Under  Avhat  circumstances  violence  may  be  inflicted 305 

§  356.     Violence  inflicted  in  the  defense  of  property 305 

§  357.     As  to  the  right  of  those  who  frequent  hotels 307 

§  358.     The  degree  of  force  hotel  proprietor  may  use 308 

§  359.     Of  those  occupying  particular  relations  to  each  other 309 

§  360.     Special  duty  towards  others 309 

§  361.  Act  of  the  assailant  to  be  viewed  from  standpoint  of  assailed.  310 

§  362.     Division  of  assaults  under   statutes 311 

§  363.     Preventing  unlawful   acts 312 


CHAPTER  XVIII. 

ATTEMPTS. 

§  364.     Definition     314 

§  365.     Preparatory  acts   316 

§  366.     Solicitations    316 

§  367.     Solicitations   when   an    attempt 317 

§  368.     Misdemeanors  at  common  law 319 

§  369.     No  attempt  in  some  crimes 319 

§  370.     As   to   perjury 320 

§  370a.  As  to  routs,  riot,  etc 321 

§  371.     As  to  assaults 321 

§  372.     Doctrine  of  attempts  applied  to  misdemeanors 322 

§  373.     Solicitations  in  some  crimes  attempts 323 

§  374.     Extent   of  the   intent 324 

§  375.     The  intent  and  an  overt  act  must  concur 324 

§  376.     Voluntary  abandonment  of  intent 325 

§  377.     Where  the  crime  is  impossible  of  commission.  .  .  .  .' 326 

§  378.     The  extent  of  the  act 327 


CHAPTER  XIX. 

BARRATRY. 

§    379.      Dcliiicd     328 

S    380.     Is  an  offense  in  tlie  American  states 328 

§    381.     A  misdemeanor  at  common  law 329 

8    382.     Was  indictable  sis  a  comnnni  miis;incc  ;i1  coiiinion  law 329 

§    383.     Champerty    anfl    maintenaiK  r 330 


Table  of  Contents  xxv 

PAGE 

384.  Are  offenses  which  interrupt  the  course  of  justice 330 

385.  Further   discussed    332 

386.  As  criminal  offenses  in  the  states 332 


CHAPTER  XX. 

BIGAMY. 

Defined     33-i 

Exceptions  under  the  statutes 334 

What  facts  the  indictment  must  contain 335 

How  the  marriage  may  be  proven 336 

Under  what  circumstances  may  the  defendant  be  convicted  ? .  .  337 

Manner  of  performance  of  marriage  ceremony 338 

What  is  competent  evidence  against  the  defendant 338 

At  common  law,  wife  not  competent  to  testify 339 

Incestuous  marriage,  etc 339 

What  is  a  good  defense 340 

Where  the  right  to  remarry  is  upon  contingency,  etc 340 

As  to  the  place  of  the  marriage 342 

No  defense  to  show  the  former  marriage  is  voidable 343 

Contract  of  marriage  must  be  solemnized 344 


CHAPTER  XXI. 
BRIBERY. 

Defined  and  described 346 

The  crime  as  considered  by  our  ancestors 347 

The  thing  accepted  must  have  some  value 349 

Offering  and  accepting,  substantive   crimes 349 

Offering  to  bribe  another  to  control  vote 350 

Candidate  offering  to  fill  office  without  compensation 351 

The  oft'ering  to  bribe  in  the  nature  of  an  attempted  crime.  .  .  .  352 

Soliciting  bribe    352 

Common  law  embracery,  bribery  under  statute 353 


CHAPTER  XXII. 
BURGLARY. 

408.  Definition     354 

409.  Dwelling  house   defined 354 

410.  Common  law,  as  to  buildings  enlarged 356 

411.  Breaking  defined    357 

412.  Entering  the  house  with  the  consent  of  the  owner  not  burglary.  359 


§ 

387. 

§ 

388. 

§ 

389. 

§ 

390. 

§ 

391. 

§ 

392. 

§ 

393. 

§ 

394. 

§ 

395. 

§ 

396. 

§ 

397. 

§ 

398. 

§ 

399. 

§ 

399a, 

§ 

400. 

§ 

401. 

§ 

402. 

§ 

403. 

§ 

404. 

§ 

405. 

§ 

406. 

§ 

406a, 

§ 

407. 

xxvi  Table  of  Contents 

PAGE 

§    413.     Collusion  with  owner  to  catch  burglar 360 

§    414.     Consent  obtained  by  fraud  or  trick 360 

§    415.     Entry .'. 361 

§    416.     As  to  the  intent 362 

§    417.     As  to  the  time 363 


CHAPTER  XXIII. 

CONSPIRACY 

§  418.     Conspiracy  is  not  an  attempt  to  commit  a  crime 364 

§  419.     Conspiracies,  as  to  acts  indictable  per  se 365 

§  419a.  No  strict  rule  constituting 366 

§  420.     Are  substantive  offenses   367 

§  421.     Conspiracies  merged  into  the  consummated  offense 368 

§  422.     Defined     369 

§  423.     Mere  willingness  and  the  intent  do  not  constitute 370 

§  424.     Conspiracies  to  defraud  another  of  his  property 371 

§  425.     Partners  may  be  guilty  of  conspiracy 372 

§  426.     Some  other  circumstances,  the  offense  may  be  committed 373 

§  427.     To  satisfy  ill  Avill 373 

§  428.     Agreements  to  commit  acts  of  immorality,  conspiracies 374 

§  429.     To  defeat  public  justice 375 

§  430.     Of  and  concerning  the  wages  of  workmen 375 

§  431.     A  boycott  is  an  unlawful  conspiracy 376 

§  432.     Skill  of  the  workingman,  and  labor  is  capital 378 

§  433.     Combination  of  dealers  to  lower  or  to  raise  prices  is 379 

§  434.     Combinations  to  effect  legal  ends  by  illegal  means  is 379 

§  435.     Allegation    of    indictment 380 

§  436.     Same,   continued    380 

§  437.     Illegal  acts  by  illegal  means,  indictment 381 

§  438.     Allegations  where  the  crime  has  been  consummated 381 

§  439.     Rule  as  to  principals  and  accessories 382 

§  440.     Wliere  there  are  two  persons  to  the  unlawful  agreement 383 

S  441.     Where  the  minds  arc  inflamed  by  speeches 383 

§  442.     Acts   and   declarations    384 

S  443.     Agreements  made  before  or  after  consummation 385 

§  444.     Making  a  prima  facie  case  of  conspiracy,  old  rule 386 


CHAPTER  XXIV. 

COUNTKBFEITINa. 

445.  Definition     387 

446.  Englisli     Stntutos     388 


Table  of  Contents  xxvii 


PAGE 


§    447.     Constitution  of  the  United  States  does  not  limit  the  states  in 

prosecuting    3^^ 

§    448.     C?ustom    cannot   legalize    a    coin    391 

§    448a.  As   distinguished    from    forgery    393 


CHAPTER  XXV. 

CONTEMPTS    OP    COURT. 

Contempts  are  a  sort  of  quasi  criminal  offense 395 

Powers    of    legislatures     396 

As  to  powers  of  other  assemblies   397 

Legislatures  are  possessed  of  the  same  rights  as  courts 397 

Powers  of  the  English  Parliament 398 

Powers  of  inferior  legislatures,   city  councils 398 

The  power  of  the  courts  to  protect  themselves  is  inherent..  398 

Has  been  the  law  of  England  for  centuries   399 

Contempt  committed  in  one  court  cannot  be  interfered  with  in 

another ^^^ 

The  writ  of  habeas  corpus  may  be  resorted  to   402 

Conflict  of  authorities  as  to  right  of  appeal    403 

As  to   the  power  of  the   legislature   to   abridge  the   common 


§ 

449. 

§ 

450. 

§ 

451. 

§ 

452. 

§ 

453. 

§ 

454. 

§ 

455. 

§ 

456. 

§ 

457. 

§ 

458. 

§ 

459. 

§ 

460. 

§ 

461. 

§ 

462. 

§ 

463. 

§ 

464. 

§ 

465. 

§ 

466. 

§ 

467. 

§ 

468. 

§ 

469. 

§ 

470. 

§ 

471. 

§ 

472. 

law 


404 


What  is  necessary  for  judgment  to  show   406 

As  to  the  powers  of  a  court  not  of  record 407 

Appeals  may  be  allowed  by  statute  408 

The  right  to  pardon  for  contempts   409 

Contempts    as    criminal    offenses     409 

Comments  concerning  cause  pending   410 

As  to  the  intent  of  the  contemnor 411 

Summary    judgment    of    the    court    where    committed    in    its 

presence   ^■'^^ 

Procedure  in  the  matter  of  constructive   contempts    412 

In  the  absence  of  statute,  punishment  at  the  pleasure  of  court.  413 

Contempts  may  be  also  crimes  against  the  general  laws 414 

As  to  constitutional  courts,  etc 414 


CHAPTER  XXVI. 

EXTORTION. 

473.  Definition     416 

474.  Officers   of  the   Government 417 

475.  Extortion  by  de  facto  officer 417 

476.  As  to  usurpers  418 

477.  Of   the   intent    • 418 


§ 

478. 

§ 

479. 

§ 

480. 

§ 

481. 

§ 

482. 

§ 

483. 

§ 

484. 

§ 

485. 

§ 

486. 

§ 

487. 

§ 

488. 

§ 

489. 

§ 

489a. 

§ 

490. 

§ 

491. 

§ 

492. 

xxviii  Table  of  Contents 

CHAPTER  XXVII. 

EMBEZZLEMENT.  TAQ^ 

Definition     -1-0 

At  common  law  was  not  a  crime 421 

Distinctly  a   statutory   offense 423 

Kule  as  to  clerks,  servants  and  the  like 42(3 

Of  the  kind  of  property 428 

Property  illegally  acquired  by  principal,  agent  may  embezzle.  428 

Relation  of  trust,  explanation 429 

Further  considered    430 

As  to  the  class  of  persons 431 

Explanation    of   the    terms    of    statutes 432 

The  relation  of  trust  is  not  dependent  upon   compensation..  434 

Part   owner   not   subject   to   for   joint   property 434 

To  borrow  money  for  specific  purposes,  failure  to  do  so  not 

embezzlement    435 

Employment  when  of  special  nature 436 

The  intent  must  exist  at  the  time  of  taking  the  property...  437 

Offering  to  restore  may  be  shown  in  mitigation 439 


CHAPTER  XXVIII. 

FALSE    PRETENSES. 

Common  law   cheats    441 

English   statutes    442 

Protenses  must  relate  to  some  existing  or  past  fact 443 

How  strong  shall  the  pretense  be 444 

How  shall  the  pretense  be  effected 446 

As  to  the  promise  and  the  expression  of  ojnnion 447 

Both   sellers   and   purchasers   may   be   guilty    of 449 

Difference  ])etween  false  pretenses  and   nun  criiiiiiKil   lie 450 

lU'presentation  by  act  and  by  silence 452 

Of  what  elements  composed 452 

Tlie  intent  must  be  to  defraud 453 

Defendant  must  have   knowledge  of  the   falsity  of  the  state- 
ment       45J 

§    505.     Thi'   intent   fit'  the  prosecutor 455 

ciiai'ti:r  XXIX. 

FOKQERY. 

S  506.     Definition     457 

§  507.     The  crime  how  committed 458 

((  508.     Same,    continued    460 

((  5<l0.     Si({ninK   the   n.-mie   of   jinother  as    tlie   agent 461 


§ 

493. 

§ 

494. 

§ 

495. 

§ 

496. 

§ 

497. 

§ 

498. 

§ 

499. 

§ 

500. 

8 

501. 

§ 

502. 

8 

503, 

§ 

504, 

Table  of  Contents  xxix 

PAGE 

§  510.  Subsequent  ratification  of  the  act  by  principal 4G2 

§  511.  Falsely  personating  another    462 

§  512.  Altering  the  original  entries  of  books  of  account  is 464 

§  513.  Antedating   instrument  is,   when 46j 

§  514.  Falsifying   records  is,  when 46G 

§  515.  Falsely  reading  instrument  to  another  who  cannot  read 467 

§  516.  Instrument   must   affect   property 469 

§  SI?.  Of  the  statutes  of  the  states 470 

§  518.  Specific  intent  to  defraud 472 

§  519.  Recording  instrument  is  sufficient  publication 472 

§  520.  Instrument  must  be  set  out  in  words  and  figures 473 

§  521.  What  instrument  is  the  basis  of 474 

§  522.  Following  the  language  of  the  statute  is  sufficient 475 

§  523.  Indictment  may  contain  count  for  passing  and  for  the  forgery.  475 

§  524.  As   to   evidence    ^ ' " 

§  525.  Laws  of  Scotland   "^-^^ 

§  526.  Passing  is  not  proved  till  it  is  shown  that  it  passed  to  another.  479 

§  527.  The   attempt   479 


CHAPTEE  XXX. 

HOMICIDE. 

§    528.  Divisions  of    ^^1 

§    529.  Murder   defined    482 

§    530.  Malice  need  not  be  against  the  person  killed 483 

§    531.  Presumptions  as  to  acts 484 

§    532.  Ex|5ress   malice,   how   proved 484 

§    533.  Presumption   from   proof   of   corpus   delicti 486 

§    534.  Presumption  as   to   continuance   of  malice 487 

§    535.  Ignorance  and  negligence  of  physician 487 

§    536.  Presumption  as  to  first  Avound 489 

§    537.  Murder  by  other  than  physical  means 490 

§    538.  Person  must  be  alive ' 490 

§    539.  Dueling    491 

§    540.  Definition     492 

§    541.  At  common  law  no  degrees  of  murder 493 

§    542.  Murder  by  lying  in  wait,  poison,  etc 494 

§    543.  Specific  intent  to  kill  necessary,  when 496 

§    544.  Under  Federal  statutes  no  degrees  of  murder 497 

§    545.  Manslaughter    defined     498 

§    545a.  Cause   for   jury    ^^^ 

§    546.  Presumption  that  defendant  acted  upon  new  provocation,  when.  501 

§    547.  Insulting  word  to  female  relative ^^'2 

§    548.  What  is  cooling  time 503 

§    549.  Killing  officer  while  making  arrest 505 


XXX  Table  of  Contents 

PAGE 

§    550.     Peace  officer  must  act  in  conformity  to  law 507 

§    551.  Killing  an  officer  in  resistance  to  arrest,  malice  presumed....   509 

§    552.     Involuntary   manslaughter   defined    510 

§    553.     Misdemeanors  merely  mala  prohibita 511 

§    554.     Negligent  acts   511 

§    555.     Self  defense,  illustrations   512 

§    556.     Apprehension  of  danger   513 

§    556a.  Cowardice,  fear,  etc.,  different  views 515 

§    557.     Threats  to  take  life 517 

§    558.     Nonfclonious  assaults  517 

§    559.     Assault  upon  habitation 519 

§    560.     Attack  upon  property  other  than  habitation 519 

§    561.  Homicide  committed  in  the  prevention  of  felony  .justifiable.  .   521 

§    562.  The  right  of  the  members  of  the  family  to  defend  each  other.  522 

§    563.     The  degree  of  force  used 524 

§    564.     Nonfelonious    assaults    524 

§    565.     Wrongful  act  contributing  to  the  necessity  to  kill 525 

§    566.     Eetreat  and  pursuit   526 

§    567.     Spring  guns    527 

§    568.     Assault  to  murder,  misdemeanors  at  common  law 529 

§    569.     As  to  the  intent   530 

CHAPTER  XXXI. 

LARCENY. 

§    570.     Definition   and    description    532 

§    571.  At  the  common  law  the  property  must  not  savor  of  the  soil..    533 

§    572.  Severing  from  the  soil  and  aspotation  at  the  same  time  is  not.   534 

§    573.     Wild  animals  at  the  common  law  were  not  subject  to 535 

§    574.     At  common  law  dogs  and  cats  were  not  subject  to 536 

§    575.     Choses  in  action,  at  common  law  not 538 

§    576.     Further   discussion    539 

§    577.     Of  the  title  and  possession  of  property 540 

§    578.     One  with  the  bare  possession  of  properly  not  a  bailee 542 

§    579.     Conversion  of  property  after  term  of  liailmcnt,  is 544 

§    580.  Lrircony  of  goods  of  a  deceased  person   laid   in   tlie   adminis- 
trator      545 

§    581 .     Rule  as  to  lost  property 546 

§    582.     Allegation  of  property  when  in  corporation 547 

§    583.     Acquiring  the  possession  of  property  by  trick  or  fraud 548 

§    584.  Larceny  where  the  property  is  delivered  for  a  special  purpose.   551 

§    585.     Wife 's   poRsossion    552 

§    586.     Larceny  involves  two  qnoHlions  of  po.ssossions 554 

8    587.     Whore  one  has  the  riglit  and  the  title  to  the  property 555 

§    588.     Property  need  not  1)0  taken  lucri  causa 557 

§    589.     No  rcp(fntance  is  a  defense 558 


§ 

590. 

§ 

591. 

§ 

592. 

§ 

593. 

^ 

594. 

§ 

595. 

§ 

596. 

§ 

597. 

Table  of  Contents  xxxi 

PAGE 

Eule  in  estimating  the  value  of  property 558 

Eule  as  to  minors  and  deceased  persons 5G0 

As  to  the  consent,  etc 561 

Entrapping  the  thief   562 

Of  the  attempt    563 

RECEIVERS. 

Substantive  offense   564 

English    statutes    565 

The  receiver  need  not  have  the  actual  manual  possession  of 

property     565 

§    598.     Eeceivers  need  not  intend  to  acquire  an  interest  in  the  prop- 
erty       566 

§    599.     Stolen  goods  restored  to  owner 567 

§    600.     English   statutes    668 

S    601.     Theft   bote    568 

CHAPTER  XXXII. 

LIBEL. 

§  602.  Definition 569 

§  603.  Justification    570 

§  604.  Tendency  to  bring  on  a  breach  of  the  peace 571 

§  605.  Libel   per   se,   what   is 572 

§  606.  What  is  indictable  libel 572 

§  607.  Publication  of  the  proceedings  of  court 674 

§  608.  What  matters  are  privileged  in  court  proceedings 575 

§  609.  As  to  legislature  575 

§  610.  Communications  betvpeen  persons  in  interest 575 

§  611.  Inquiries  as  to  another's  character 576 

§  612.  Reports    of    mercantile    agencies 576 

§  613.  Candidates  for  office    676 

§  615.  Public   officers    577 

§  616.  Elements  of  the  offense 578 

§  617.  What  constitutes  publication    578 

§  618.  Criminal  slander    579 

CHAPTER  XXXIIL 

KIDNAPPING   AND  FALSE   IMPRISONMENT. 

§  619.     Definition     580 

§  620.     Kidnapijing  and   false  imprisonment 580 

§  621.     Of    false    imprisonment 581 

§  622.     The  person  must  be  taken  against  his  will 582 

§  623.     Indictment     583 

§  624.  Form  of  indictment  of  false  imprisonment  held  to  be  good .  .  .  583 


XXX ii  Table  of  Contexts 

CHAPTER  XXXIV. 

MALICIOUS    MISCHIEF.  ^ 

PAGE 

§    625.     The  offense  nt  common  law 584 

§    626.     The    intent    585 

CHAPTER  XXXV. 
MAYHEM. 

§  627.  Defined    587 

§  628.  Early  English  statutes 587 

§  629.  What  was  included  at  common  law 588 

§  630.  What  included  under  the  statutes 588 

§  631.  As  to  the  intent 590 

§  632.  The   indictment    590 


CHAPTER  XXXVI. 

MISPRISIONS. 

§    633.     At  common  law 592 

§    634.     Wliat  constitutes  593 

CHAPTER  XXXVII. 

MONOPOLIES — FORESTALLING,    REGRATING    AND    ENGROSSING. 

S    6'oi).     Old  statutes  of  England  may  be  common  law  here 594 

CHAPTER   XXXVIII. 

NUISANCES. 

§    636.     Subdivisions    596 

§    637.     Bawdy  and  disorderly  houses  defined 596 

§    638.     Gossip,   scandal,   etc 597 

§    639.     Married  women    598 

§    640.     Common  scolds 598 

§    641.     OfTenHive    trades    599 

§    642.     I'liblic  health    599 

§    643.     Eavesdropping    ■.  .  .  .  600 

§    644.     I']xposing   the   person 600 

§    645.     Exposure  in  private  place 601 

§    646.     Statutes    601 

§    647.     Tiaming  and  gaming  houses 602 

8    648.     Oltstruction  to  lii^liways,  necessity  justifies 602 

§    649.     Custom    will   not   justify 603 

§    650.     Public  shows 603 

§    651,     Drunkenness,  punished   :is  n    nuisance 604 


Table  of  Contents  xxxiii 

CHAPTER  XXXIX. 

PERJURY.  PAGE 

Defined  ^^^ 

"Was  anciently  a  misdemeanor 606 

An  oath  must  have  been  administered  in  accordance  with  the 

established  form  or  substance  of  the  law 607 

Corporeal  oaths  distinguished  from  others 608 

Oath  must  be  properly  administered 609 

Must  be  administered  in  conformity  to  the  law 609 

No    difPerence    whether    witness    voluntarily    or    involuntarily 

appear  and  testify   610 

Administering  oath,  statute  must  be  followed 610 

Oath  must  be  administered  by  one  authorized  to  do  so 611 

Who  was  empowered  at  common  law  to  administer  oaths....  611 

Oath  must  be  administered  in  the  officers'  jurisdiction 61:2 

Court  must  have  jurisdiction  of  the  person,  subject  matter.  .  .  613 

Must  be  prosecuted  in  the  federal  court,  when 614 

Testifying  to  fact  believed  to  be  true,  is  not  perjury 61.5 

Testimony  must  have  been  willful  and  corrupt 615 

Must  have  been  matter  material  to  issue 616 

Witness  compelled  to  testify  against  himself  not  perjury 617 

Eule  as  to  corroboration 617 

CHAPTER  XL. 

PREVENTIVE   JUSTICE. 

670.  The  law  as  at  common  law 619 

671.  Security  may  be  required  after  conviction 620 

672.  At  common  law  was  confined  to  gross  misdemeanors 621 

673.  At  common  law  was  not  regarded  as  punishment 622 

674.  Considered   under    the    statutes 622 

675.  The  extent  of  the  threat  and  the  probable  cause  of  injury ...  623 


CHAPTER  XLI. 

PRISON  BREACH,  ESCAPE  AND  RESCUE. 

§    676.     Defined ^^^ 

§    677.     What  the  indictment  must  show 625 

§    678.     Officers   neglect   of  duty 627 

§    679.     Prisoners   escaping    627 

§    680.     Defendant   may  break,  when 627 

§    681.     Prisoner  must  be  held  by  legal  warrant 627 

§    682.     When  a  prisoner  may  be  discharged 628 

§    683.     Voluntary  escapes  defined 629 

§    684.     Resisting  the  service  of  legal  process 629 


§ 

652. 

§ 

653. 

§ 

654. 

§ 

655. 

§ 

656. 

§ 

657. 

§ 

658. 

§ 

659. 

§ 

660. 

§ 

661. 

§ 

662. 

§ 

663. 

§ 

664. 

§ 

665. 

§ 

666. 

§ 

667. 

§ 

668. 

§ 

669. 

xxxiv  Table  of  Contents 

CHAPTER  XLII. 

PAGE 

§    685.     Definition 631 

§    686.     The  character  of  force  necessary 632 

§    686.     Application  of  the  doctrine  of  force 633 

§    687.     Consent,  resistance,  the  extent   thereof 634 

§    688.     By  whom  committed 636 

§    689.     Of  the  force  necessary  to  assault  to  rape 637 

§    690.     Assault  to  rape  under  the  statutory  age 639 

§    691.     Assault  may  be  committed  by  husband  upon  wife,  when 641 

§    692,     Boy  under  age  of  fourteen  may  commit  assault 641 

§    692a.  At  common  law  emission  and  penetration  necessary 642 

CHAPTER  XLIII. 

EOBBEBT. 

Definition    643 

Taking  property  from  a  debtor 643 

Nature  of  the   force 644 

Of  the  degree  of  fear 645 

Sodomy,  charge  of  sufficient  fear 646 

Property  from  whom  taken 646 

Value  and  the  amount  thereof 647 

The  intent  must  be  fraudulent 647 

Proof   648 

Of  the  assault 649 

CHAPTER  XLIV. 

SEDUCTION. 

702.  At  the  common  law 650 

703.  Definition 650 

704.  Of  the   promise  of   marriage 651 

705.  Previous  chaste  character 653 

705a.  Burden  of  proof — Conflict   of  decision 655 

CHAPTER  XLV. 

SODOMY. 

706.  Defined 657 

707.  As  to  the  assault 657 

707a.  Per   o.s 658 

CHAPTER  XLVI. 

SUNDAY  LAWS  AND  OFFENSES  AGAINST  RELIGION. 

708.  Christianity  as  a  part  of  the  common  law 659 

709.  No    punishment    for    nonobservnnce    of    religion 600 


§ 

693. 

§ 

694. 

§ 

694a. 

§ 

695. 

§ 

696. 

§ 

697. 

§ 

698. 

§ 

699. 

§ 

700. 

§ 

701. 

Table  of  Contents  xxxv 

PAGE 

§  710.  Divisions  of  the  offense 661 

§  711.  Definition  of  Blackstone 661 

§  712.  Profane  swearing  a  public  nuisance 662 

§  713.  Single  instances  of  swearing  not  punishable 662 

§  714.  Non-observance  of  religion,  whether  common  law 663 

§  715.  Sustained  upon  what  grounds 664 

§  716.  Municipal  regulations 664 

§  717.  Sunday  laws  constitutional 665 

§  718.  Same  continued  666 

§  718a.  Power  conferred  upon  city  governments 666 

§  719.  As  to  the  statutes 666 

§  720.  Exceptions    to    labor 667 

§  721.  As  to  those  persons  who  observe  a  day  other  than  Sunday...  667 

§  722.  As  to  the  intent ; 668 

CHAPTER  XLVII. 

TREASON. 

§    724.     Not  indictable  as  a  common  law  offense  in  this  country 669 

CHAPTER  XLVIII. 

■UNLAWFUL   ASSEMBLIES. 

§    725.     Definition  and  explanation 671 

§    726.     Is  in  the  nature  of  the  disturbance  of  the  peace 672 


PART  THREE 


CHAPTER  XLIX. 

OFFENSES  RELATING  TO  AGENTS  ABROAD. 

§    727.     Making  false  oath  or  account  by  consular  officer,  perjury 674 

§    728.     Consular  officers  must  account  for  all  moneys,  penalty,   em- 
bezzlement       675 

§    729.     Consul   or   commercial   agent   must   perform    duties;    neglect, 

penalty 675 

§    730.     False  certificate  by  consul,  vice  consul  or  agent  as  to  property, 

punishment   676 

§    731.     Perjury  may  be  committed  before  a  Secretary  of  Legation  and 
Consular  officer  and  may  be  prosecuted  in  any  district  of 

U.  S 676 

§    732.     Assaulting  public  minister  of  the  U.  S.— Penalty,  void 677 

§    733.     Writ  or  process  sued  out  against  foreign  minister 677 

§    734.     Person    suing    out    process    against    public    foreign    minister 

deemed  violator  of  public  peace,  punishment 678 


xxxvi  Table  of  Contents 

CHAPTER  L. 

PROVISIONS    RELATING    TO    BIRDS.  „.„„ 

PAGE 

§    735.     Migratory  and  insectivorous  birds  shall  be  under  the  protec- 
tion of  the  Government  and  unlawful  to  kill,  punishment .  .  679 
§    736.     Migratory  bird  treaty  act,  Acts  relating  to  migratory  birds, 

unlawful    680 

§    737.     Regulation  allowing  hunting 681 

§    738.     Shipments  contrary  to  state  laws,  prohibited 681 

§    739.     Arrest  for  violations 682 

§    740.     Punishments  for  violations 682 

§    741.     Open  season   683 

§    742.     Taking,  etc.,  for  scientific  or  breeding  purposes 683 

§    743.     Invalidity   of    any   clause 684 

§    744.     Inconsistent  laws  repealed 684 

§    745.     Breeding  on  farms  not  prohibited 684 

CHAPTER  LI. 

ADMIRALTY    AND    MARITIME   JURISDICTION. 

Offenses  Witliin  the  Admiralty  and  Maritime  and  the  Territorial  Jurisdiction 

of  the  United  States.     Penal  Code,  Act  March  4,  1909. 
§    746.     Places  within  or  waters  upon  which  sections  of  this  chapter 

shall  apply   685 

§    747.     Murder 686 

§    748.     Manslaughter   686 

§    749.     Punishment  for  murder;   for  manslaughter 687 

§    750.     Assault  with  intent  to  commit  murder,  rape,  robbery,  etc ....  687 

§    751.     Attempt  to  commit  murder  or  manslaughter 687 

§    752.     Rape  688 

§    753.     Having  carnal  knowledge  of  female  under  sixteen 688 

§    754.     Seduction  of  female  passenger  on  vessel 688 

§    755.     Payment  of  fine  to  female  seduced;  evidence  required;   limita- 
tion on  indictment 688 

§    756.     Loss  of  life  by  misconduct  of  officers,  etc.,  of  vessels 689 

§    757.     Maiming    689 

§    750.     Robbery   689 

S    759.     Arson   of   dwelling   house 690 

S    760.     Arson  of  other  buildings,  etc 690 

§    7(71 .     Larceny   690 

8    762.     Receiving,  etc.,  stolen  goods 691 

§    763.     Laws  of  Stales  adopted  for  punisliing  wrongful  acts,  etc 091 

CHAPTER  LII. 

VIOLATION    OK   THE   CENSUS   LAWS. 
§    76}.     All    pfT.sons    over    18    ycnrs    to    nn.swer    questions    by    census 

enumcrntor,  jmnislimenf   for  innccnrate  infnrni.it ion 692 


Table  of  Contents  xxxvii 

PAGE 

§    765.     Unlawful  use  of  frank  census  matter,  punishment 694 

§    766.     Wilfully  withhold  information  by  officer  religious  organization, 

etc.,  to  census  taker 694 

§    767.     Census  mail  frank,  illegal  use  of,  punishment 69." 

§    768.     Punishment  for  securing  pay  for  appointment  of  census  em- 
ployee, etc 695 

§    769.     Census  employee  neglecting  duty  without  cause.     False  swear- 
ing, false  returns,  etc 6^6 

§    770.     Consideration  or  fee  for  appointment  under  census  act  illegal, 

punishment   697 

§    771.     Officers  and  employees  failing  to  perform  duty  under  census 

act.    Punishment 697 

§    772.     Persons  over  twenty-one  years  of  age  required  to  give  informa- 
tion to  census  taker,  refusal,  punishment 698 

§    773.     Kefusing  information  to  census  director  relative  to  hides,  etc. 

Punishment 699 

§    774.     Penalty  for  bribing  officer 701 

§    775.     Officers  neglecting  to  perform  official  duties,  penalty 701 

§    776.     Persons  over  twenty-one  years  must  answer  questions  of  census 

taker,   penalty    702 

CHAPTER  LIII. 

CIVIL    RIGHTS. 

Offenses  Against  the  Elective  Franchise  and  CmL  Rights 
OF  Citizens. 

§    778.     Conspiracy   to    injury,    etc.,    persons    in    the   exercise    of   civil 

rights 704 

§    779.     Depriving  citizens  of  civil  rights 704 

§    780.     Conspiring  to  prevent  officer  from  performing  duties 705 

§    781.     Unlawful  presence  of  troops  at  elections 705 

§    782.     Intimidation  of  voters  by  officers,   etc.,   of   Army   or  Navy 

§    783.     Officers  of  army  or  navy  prescribing  qualifications  of  voters..    706 

§    784.     Officers,    etc.,    of   army   or   navy   interfering    with    officers    of 

elections,    etc 

§    785.     Persons   disqualified   from   holding   office;    when   soldiers,  etc., 
may  vote  


706 
06 

706 

706 


CHAPTER  LIV. 
violations    by   common    carrier. 

§    787.     Maliciously    opening    or    breaking    car,    Act    July    14,    1870, 

punishment     '  ^^ 

§    788.     Wilful  failure  of  carrier  subject  to  interstate  regulations  to 

comply  with  law,  punishment 709 

§    789.     Common    carrier   not   allowed    to   transport    diseased   plants..    711 


§ 

792. 

§ 

793. 

§ 

794. 

§ 

795. 

§ 

796. 

§ 

797. 

xxxviii  Table  of  Contents 

PAGE 

§  790.  OflScers  of  corporations  engaged  in  commerce  as  a  common 
carrier  who  embezzles,  etc.;  punishment,  conviction  in  State 

court   a    bar    711 

§    791.     Penalties  and  punishment  to  common  carriers  for  violation  of 

laws   relating  to   common   carriers 712 

Making  false  entries  by  common  carrier  in  accounts,  penalty  715 
Wlio,   with   intent  to   defraud,   makes   or   utters   false   bill   of 

lading,  etc.,  punishment 717 

Illegal   act  of   common   carrier   by   water    718 

Common  carrier  and  its  agent  must  not  disclose  information 

concerning   shipment,   etc 719 

Eef usal  to  carry  mail  by  water-carrier,  punishment 720 

Unlawful  to  be  officer  of  more  than  one  carrier,  punishment .  .  720 

CHAPTEE  LV. 

COPYRIGHTS  AND  PATENTS. 

§    799.     Inserting   or   impressing   any   notice   of   copyright   upon    any 

uncopyrighted  article  with  fraudulent  intent,  punishment..   722 

§  800.  Any  person  who  shall  wilfully  and  for  profit  infringe  any 
copyright  secured  by  act  March  4,  1909,  guilty  of 
misdemeanor 723 

§  801.  Criminal  prosecutions  under  copyright  Act,  March  4,  1909,  must 
be  instituted  within  three  years  after  cause  of  action 
arose 723 

§    802.     False  affidavit  to  claim  to  copyright  723 

§    803.     In  case  copyright  of  a  book,  officers  showing  that  it  has  been 

printed   from   type   set  in  U.   S 724 

PATENTS. 

§  804.  Any  person  who  marks  upon  anything  made,  used  or  sold 
by  him,  for  which  he  has  no  patent,  the  name  of  the  real 
patentee,  is  subject  to  a  penalty 724 

§    805.     In  contests  over  patents,  witnesses  who  refuse  to  testify   in 

disobedience  to  subpoena,  guilty  of  contempt 725 

CHAPTER  LVI. 

CURRENCY    AND    COINAGE. 

Offenses  against   the   Currency,   Coinage,   etc.     Penal   Code,   Act 
March    4,    1009. 

§  807.  "Obligation  or  other  security  of  the  United  States"  defend..  727 

§  808.     Forcing  or  rotintcrfoiting  United  States  securities 727 

§  809.     Conntcrfi'iting    national  bank    notes 727 

8  810.     UHing  i)lntoH  to  print  nntrs  witliout  authority,  etc 728 

§  811.     PfiHHing,  selling,  conccnling,  etc.,   forged  obligations 729 


Table  of  Contents  xxxix 

PAGK 

Taking  impressions  of  tools,  implements,  etc 730 

Having  in  possession  unlawfully  such  impressions 730 

Buying,  selling,  or  dealing  in  forged  bonds,  notes,  etc 731 

Secreting   or   removing   tools   or   material   used   for   printing 

bonds,    notes,    stamps,    etc 731 

Counterfeiting  notes,  bonds,  etc.,  of  foreign  governments....  732 

Passing  such  forged  notes,  bonds,  etc 732 

Counterfeiting  notes  on  foreign  banks 733 

Passing  such  counterfeit  bank  notes 733 

Having  in  possession   such  forged  notes,  bands,  etc 733 

Having  unlawfully  in  possession  or  using  plates  for  such  notes, 

bonds,  etc 734 

Connecting  parts  of  different  instruments 735 

Counterfeiting  gold  or  silver  coins  or  bars 735 

Counterfeiting    minor    coins 736 

Falsifying,  mutilating,  or  lightening  coinage 736 

Debasement  of  coinage  by  officers  of  the  Mint 737 

Making  or  uttering  coins  in  resemblance  of  money 737 

Making  or  issuing  devices  of  minor  coins 738 

Counterfeiting,  etc.,  dies  for  coin  of  United  States 738 

Counterfeiting,  etc.,  dies  for  foreign  coins 738 

Making,    importing,    or    having    in    possession    tokens,    prints, 

etc.,  similar  to  United  States  or  foreign  coins 739 

§    832.     Counterfeit    obligations,    securities,    coins,    or    material    for 

counterfeiting,  to  be  forfeited 740 

§    833.     Issue    of    search    warrant    for    suspected    counterfeits,    etc. ; 

forfeiture    740 

§    834.     Circulating  bills  of  expired  corporations 741 

§    835.     Imitating    national   bank    notes    with    printed    advertisements 

thereon     742 

§    836.     Mutilating  or  defacing  national-bank  notes 742 

§    837.     Imitating  United  States  securities  or  printing  business  cards 

on  them    743 

§    838.     Notes  of  less  than  one  dollar  not  to  be  issued 743 

CHAPTER  LVII. 

OFFENSES  EELATING  TO  CUSTOMS  AND  DUTIES. 

§    840.     Locks  and  fastenings  may  be  put  on  vessel  by  inspector,  if 

locks  are  broken  master  is  responsible 745 

§  841.  Master  of  any  vessel  who  intentionally  obstructs  officer  law- 
fully going  on  board  shall  be  punished 745 

§    842.     Officers  collecting  imports  under  authority  of  U.  S.  shall  own 

vessel    punishment 746 

§    843.     Entering  goods  for  transportation  with  intent  to  draw  back 

the  duties  and  same  landed  in  U.  S.  unlawful  punishment.  .  746 


§ 

812. 

§ 

813. 

§ 

814. 

§ 

815. 

§ 

816. 

§ 

817. 

§ 

818. 

§ 

819. 

§ 

820. 

§ 

821. 

§ 

822. 

§ 

823. 

§ 

824. 

§ 

825. 

§ 

826. 

§ 

827. 

§ 

828. 

§ 

829. 

§ 

830. 

§ 

831. 

xl  Table  of  Contents 

PAGE 

§    844.     Obliteration  of  any  marks  put  on  packages  by  revenue  officer 

penal    746 

§    845.     Importer  or  proprietor  of  warehoused  goods  guilty   of  crime 

if    warehouse    fraudulently    opened 747 

§  846.  Fraudulently  concealing  goods  from  public  or  private  ware- 
house guilty  as  under  section  2986  R.  S 747 

§    847.     It  is  a  felony  for  failure  of  owner  or  master  not  to  proceed 

to  port  of  destination 747 

§    848.     Fraudulently  and  knowingly  importing  goods  that  is  contrary 

to    law,    punishment 748 

§  849.  Refusing  to  assist  officers  in  making  search  or  seizure  mis- 
demeanor      748 

§    850.     Unlawful  for  any  officer   of  U.   S.  to  receive  any  portion  of 

informer's   compensation   penalty 749 

§    851.     Officer  under  custom  laws  rebating  any  fine  or  penalty  guilty 

of  felony 750 

§  852.  Any  person  knowingly  and  wilfully  with  intent  to  defraud 
U.  S.  smuggle  any  goods  into  U.  S.,  under  Act  Feb.  27, 
1877.      Penalty 750 

§    853.     Unauthorized  person  breaking,  etc.,  seal  car  or  vessel  guilty  of 

felony 751 

§    854.     A  vessel  must  discharge  the  cargo  in  day  time  unless  licensed 

to    do    otherwise 751 

S    855.     Unloading   vessel    in    violation    Sec.    25,    Act    June    26,    1884, 

penalty    752 

§  856.  Under  Act  Oct.  3,  1913,  protest  may  be  filed  against  the 
decision  of  the  collector  as  to  the  rate  of  custom  duties  as  to 
contingent  fee  in  respect  to  recovery.  Unlawful.  Punish- 
ment         752 

§  857.  Under  Act  Oct.  3,  1913,  the  general  appraisers  of  merchan- 
dise authorized  to  administer  oaths  to  witnesses 754 

§  858.  Wilfully  and  corruptly  swearing  falsely  by  any  person  in  ex- 
amination  liefore   general    appraiser    of   merchandise 754 

§    859.     Giving  or  offering  to  give  a   bribe  to  employee  of  the  U.   S. 

Act  Oct.  3,  1913.     Punishment 755 

S    860.     Any    officer    or    employee    accejitiiig    lnihe    under    Act    Oct.    3, 

1913.      Punishment 75G 

CHAPTER  LVIII. 

OFFICIAL    DUTIES. 

OfTen.ses    Kflafing    to    Ollicial    Duties.      Penal    Code,    Act    Manli    4,    1909. 

§  862.     Officer,  etc.,  of  the  United  States  guilty  of  extortion 758 

8  863.     Hcccipting  for   larger  sums  than  are  paid 758 

S  864.  DisliiirHing  officer  unlawfully  converting,  etc.,   ]iiililic   money..  758 

S  865.      Failure   of   treasurer,  etc.,   to   safely  keep   public   money 759 

§  866.     CuHtoriian  of  public  money  failing  to  safely  keep,  etc 759 


Table  of  Contents  xli 

PAGE 

Failure  of  oflScer  to  render  accounts,  etc 759 

Failure  to  deposit  as  required 760 

Provisions  of  the  five  preceding  sections,  to  whom  applicable .  .   760 

Eecord   evidence    of   embezzlement 760 

Prima  facie  evidence 761 

Evidence  of  conversion 761 

Banker,  etc.,  receiving  deposit  from  disbursing  officer 761 

Embezzlement  by  internal-revenue  officer,  etc 762 

Officer  contracting  beyond  specific  appropriation 762 

Officer  of  United  States  court  failing  to  deposit  moneys,  etc.  762 

Eeceiving  loan  or  deposit  from  officer  of  court 763 

Failure  to  make  returns  or  reports 763 

Aiding  in  trading  in  obscene  literature 763 

Collecting  and  disbursing  officers  forbidden  to  trade  in  public 

property    764 

Certain  officers  forbidden  to  purchase,  etc.,  witness,  etc.,  fees  764 

Falsely  certifying,  etc.,  as  to  record  of  deeds,  etc 764 

Other    false    certificates 765 

Inspector  of  steamboats  receiving  illegal  fees 765 

Pension  agent  taking  fee,  etc 765 

Officer   not    to    be    interested    in    claims    against    the    United 

States 765 

Member  of  Congress,  etc.,  soliciting  or  accepting  bribe,  etc...   766 

Offering,  etc.,  member  of  Congress  bribe,  etc 766 

Member  of  Congress  taking  consideration  for  procuring  con- 
tract, office,  etc;   offering  member  consideration,  etc 767 

§    890.     Member    of   Congress,    etc.,   taking   compensation   in   matters 

to  -\vhich  United  States  is  a  party 768 

§    891.     Member  of  Congress  not  to  be  interested  in  contract 768 

§    892.     Officer  making  contracts  with  member  of  Congress 769 

§    893.     Contracts  to  which  two  preceding  sections  do  not  apply 769 

§    894.     United  States  officer  accepting  bribe 770 

§    895.     Political  contributions  not  to  be  solicited  by  certain  officers.   770 

§    896.     Political  contributions  not  to  be  received  in  public  offices 771 

§    897.     Immunity  from  official  proscription 771 

§    898.     Giving  money  to  officials  for  political  purposes  prohibited 771 

§    899.     Penalty  for  violating  provisions  of  four  preceding  sections. . . .   771 
§    900.     Governmental   officer,   etc.,   giving   out   advanced   information 

respecting  crop  reports 772 

§    901.     Government  officer,  etc.,  knowingly  compiling  or  issuing  false 

statistics   respecting   crops 772 

CHAPTEE  LIX. 

ESPIONAGE    ACT. 

§    903.     Espionage  Act,  detailing  circumstances  made  criminal  against 

Government.     Punishment  for  Violation 774 


§ 

867. 

§ 

868. 

§ 

869. 

§ 

870. 

§ 

871. 

§ 

872. 

§ 

873. 

§ 

874. 

§ 

875. 

§ 

876. 

§ 

877. 

§ 

878. 

§ 

879. 

§ 

880. 

§ 

881. 

§ 

882. 

§ 

883. 

§ 

884. 

§ 

885. 

§ 

886. 

§ 

887. 

§ 

888. 

§ 

889. 

§ 

90-4. 

§ 

905. 

§ 

907. 

§ 

908. 

§ 

909. 

§ 

910. 

§ 

911. 

§ 

912. 

§ 

913. 

§ 

914. 

§ 

915. 

§ 

916. 

§ 

917. 

§ 

918. 

xlii  Table  of  Contents 

PAGE 

Espionage  Act  amended  by  act  of  May  16,  1918.     Approved 

June    15,    1917 776 

Making   false   statement,   Avilfully   to    interfere   with   national 

forces 778 

Punishment   for   concealing   offenders,   etc 779 

Communication    foreign    government,    plans    defense,    punish- 
ment         779 

Designation   of   prohibited    places    780 

Court    martial,    etc.,    jurisdiction    not    affected 780 

All  possessions  of  the  United  States  included,  offenses  on  the 

high   seas,   etc 780 

Former   act   repealed 781 

Vessels  in  ports  of  United  States 781 

Forfeiture  of  vessel  if  owner  refuses  to  obey  rules,  etc 781 

Injury,  etc.,  of  vessels  by  owner,  etc.,  unlawful 782 

Enforcement   by   the   President 78."{ 

Injuring  vessels  engaged  in  foreign  commerce.     Punishment.  .    783 

Interference  with  foreign  commerce  by  violent  means 783 

§    919.     Enforcement  of  neutrality,  maintenance   of  neutrality,   clear- 
ance or  departure  withheld,  from  vessel  carrying  arms,  etc. 

To  a  belligerent  when  the  United  States  is  neutral 784 

§    920.     Detention   of  private   war-like   vessel   to   prevent   use,   against 

friendly  nation    784 

Sending   out   armed  vessel   for   delivery   to   belligerent   nation 

at   peace   with  the   United   States,   unlawful 785 

Clearances,  etc.,  manifests  to  be  delivered  before  the  depar- 
ture  of  vessels    785 

Eefusal  of  clearance,  etc.,  if  statements  believed  to  be  false 

etc 786 

Punishment  for  unlawful  departure,  etc 787 

Interned  belligerent  aliens,  leaving  limits,  etc.,  without  permis- 
sion,   to    bo    arrested,    etc 787 

Organizing  expeditions  against  friendly  powers 788 

Enforcement  by  the  President 788 

Compelling   foreign    vessels    to    depart 788 

Former  resolution  and  conflict  of  laws  repealed 789 

Seizure  of  arms  ;iii(l  dtlior  articles  intended  for  export 789 

Further  detention,  etc.,  application  to  court  for  warrant....    790 

Petition  of  owner  for  restoration 790 

Libel  proceedings  for  condemnation  and  sale  of  seized   prop- 
erty      7!)  1 

Admiralty  procedure  to  govern  trial 791 

Lawful  export  trade  not  interfered  with 792 

Di.scretionnry  relea.sc  of  property 792 

Enforcement  by  the  President 793 

Certain  exports  in  time  of  war  unlawful 793 


§ 

921. 

§ 

922. 

§ 

923. 

§ 

924. 

§ 

925. 

§ 

926. 

§ 

927. 

§ 

928. 

§ 

929. 

§ 

930. 

8 

931. 

8 

932. 

8 

933. 

8 

934. 

8 

935. 

8 

936, 

8 

937. 

8 

938. 

Table  of  Contents  xliii 

PAGE 

Punishment  for  violation 793 

Clearance    refused    vessel    carrying    prohibited    articles 794 

Disturbance  of   foreign  relations 794 

Punishment  for  falsely  assuming  to  be  a  foreign  official.  .  .  .    795 
Punishment     for    acting     for     foreign     government,     without 

recognition    79o 

"Foreign    Government"    use    of    term    construed 795 

Punishment   for   conspiracy    in    the    United    States    to    injure 

property  in  foreign  country,   at  peace  therewith 796 

Passports 796 

Punishment    for    false    statements    in    application 797 

Illegally  using  passport  of  another 797 

Punishment   for   counterfeiting,   forging,   etc.,   passports 798 

Counterfeiting    Government    seal 798 

Punishment  for  forging,  etc.,  any  Government  seal 798 

Punishment  for  forging,  etc.,  naval,  military,  or  official  passes 

or   permits    799 

Use   of   mails,   matter  violating  provisions   of   this   Act,   non- 
mailable         799 

Letters,  etc.,  advocating  treason,  resistance  to  law,  etc.,  non- 
mailable         800 

Punishment  for  violations 800 

General  provisions,  prior  offenses,  etc.,  subject  to  former  laws  801 

Alien  anarchists,  etc.,  excluded,  admission 801 

Deportation  after  entry,  if  member  of  excluded  classes....   802 

Punishment   for   returning   after    deportation 802 

Foreign  travel,  act  of,  made  unlawful  during  time  of  war.  .  . .    802 
Passports  required  for  all  entries,  and  departures  of  citizens  804 

Punishment    for    violation 804 

Meaning  of  terms  "United  States,"  and  "person" 804 

An  Act  to  regulate  further  the  entry  of  aliens  into  the  United 
States 805 

CHAPTER  LX, 

OFFENSES    AGAINST   GOVERNMENT. 

Offenses  against  the  existence  of  Government  Penal  Code,  Act  March 

4,  1909. 

§  966.  Treason    807 

§  967.  Punishment  of  treason    807 

§  968.  Misprision  of  treason  807 

§  969.  Inciting  or  engaging  in  rebellion 808 

§  970.  Criminal  correspondence  with  foreign  Governments 808 

§  971.  Seditious    conspiracy    809 

§  972.  Eeeruiting    soldiers    or    sailors    to    serve    against    the    United 

States    809 

§  973.  Enlistment   to   serve   against  the   United   States 809 


§ 

939. 

§ 

940. 

§ 

941. 

§ 

942. 

§ 

943. 

§ 

944. 

§ 

945. 

§ 

946. 

§ 

947. 

§ 

948. 

§ 

949. 

§ 

950. 

§ 

951. 

§ 

952. 

§ 

953. 

§ 

954. 

§ 

955. 

§ 

956. 

§ 

957. 

§ 

958. 

§ 

959. 

§ 

960. 

§ 

961. 

§ 

962. 

§ 

963. 

§ 

964. 

xliv  Table  of  Contents 

CHAPTER  LXI. 

OFFENSE  AGAINST  THE  OPERATIONS  OF  THE  GOVERNMENT. 

PAGE 

§    975.     Forgery  of  letters  patent  811 

§    976.     Forging  bids,  public  records,  etc 811 

§    977.     Forging  deeds,  powers  of  attorney,  etc 812 

§    978.     Having  forged  papers  in  possession 813 

§    979.     False  acknowledgments   813 

§    980.    Falsely  pretending  to  be  United  States  officer 814 

§    981.     False  personation  of  holder  of  public  stock 814 

§    9S2.     False  demand  on  fraudulent  power  of  attorney 814 

§    983.     Making  or  presenting  false  claims 815 

§    984.     Embezzling  arms,  stores,  etc 816 

§    985.  Conspiracy  to  commit  offense  against  the  United  States;  all 

parties  liable  for  acts  of  one 817 

§    986.  Delaying    or    defrauding   captor    of    claimant,    etc.,    of   prize 

property     817 

§    987.     Bribery  of  United  States  officer 817 

§    988.     Unlawfully  taking  or  using  papers  relating  to  claims 818 

§    989.  Persons  interested  not  to  act  as  agents  of  the  Government. . . .   819 

§    990.     Enticing  desertions  from  the  military  or  naval  service 819 

§    991.     Enticing  away  workmen   819 

§    992.     Injuries  to  fortifications  harbor  defenses,  etc 820 

§    993.  Unlawfully  entering  upon  military  reservation,  fort,  etc. . . .   820 

§    994.  Robbery  or  larceny  of  personal  property  of  the  United  States  820 

§    995.     Embezzling,   stealing,   etc.,  public  property 821 

§    996.     Receivers,   etc.,   of  stolen  public  property 821 

§    997.     Timber  depredations  on  public  lands 821 

§    998.  Timber,  etc.,  depredations  on  Indian  and  other  reservations..   822 

§    999.     Boxing,  etc.,  timber  on  public  lands  for  turpentine,  etc 822 

§  1000.     Setting  fire  to  timber  on  public  lands 823 

§  1001.     Failing  to  extinguish  fires 823 

§  1002.     Fines  to  be  paid  into  school  fund 823 

§1003.     Trespassing    on    Bull    Run    National    Forest,    Oregon 823 

§  1004.  Breaking  fence  or  gate  inclosing  reserved  lands,   or  driving 

or  permitting  live   stock  to   enter  upon 824 

§  1005.     Injuring  or  removing  posts  or  monuments 824 

§  ]  006.     Interrupting  surveys    825 

§  1007.     Agreement  to  prevent  bids  at  sale  of  lands 825 

§  1008.     Injuries  to  United  States  telegraph,  etc.,  lines. 825 

§1009.     Counterfeiting  weather   forecasts    825 

§1010.  Interfering  with  employees  of  Bureau  of  Animal  Industry..  826 

§  ion.     Forgery  of  orrtificnte  of  entry 826 

§  1012.     Concealment  or  destruction  of  invoices,  etc 826 

§  1013.  Resisting  revenue  officer,  rescuing  or  destroying  seized  prop- 
erty,  etc 827 

§  lOH.     Fnlscly  assuming  to  be  a  revenue  officer 828 


Table  of  Contents  xlv 

PAGE 

§  1015.     Offering  presents  to  revenue  officer 828 

§1016.     Admitting  merchandise  to  entry  for  less  than  legal  duty 828 

§1017.     Securing  entry  of  merchandise  by  false  samples,  etc 828 

§  1018.     False  certification  by  consular  officer 829 

§  1019.     Taking  seized  property  from  custody  of  revenue  officer 829 

§  1020.     Forging  or  altering  ship's  papers  or  custom-house  documents. .   829 

§  1021.     Forging  military  bounty -land  warrant,  etc 830 

§  1022.     Forging,  etc.,  certificate  of  citizenship 830 

§  1023.  Engraving,  etc.,  plate  for  printing  or  photographing,  selling, 
or  bringing  into  United  States,  etc.,  certificate  of  citizen- 
ship      831 

§1024.     False  personation,  etc.,  in  procuring  naturalization 831 

§1025.  Using  false  certificate  of  citizenship,  or  denying  citizen- 
ship,   etc 832 

§  1026.     Using  false  certificate,  etc.,  as  evidence  of  right  to  vote,  etc. .  833 

§  1027.     Falsely  claiming  citizenship  833 

§1028.     Taking  false  oath  in  naturalization  proceedings 834 

§1029.     Provisions  applicable  to  all  courts  of  naturalization 834 

§  1030.     Shanghaing  and  falsely  inducing  person  intoxicated  to  go  on 

vessel    prohibited    834 

§  1031.  Corporations,  etc.,  not  to  contribute  money  for  political  elec- 
tions, etc 835 

§  1032.     Hunting  birds,  or  taking  their  eggs  from  breeding  grounds, 

prohibited 835 

CHAPTER  LXII. 

GENERAL    AND    SPECIAL    PROVISIONS. 

General   and    Special   Provisions.      Penal   Code,    Act   March    4,    1909. 

§1035.     Punishment  of  death  by  hanging 836 

§  1036.     No  conviction  to  work  corruption  of  blood  or  forfeiture  of 

estate  836 

§  1037.     Whipping  and  the  pillory  abolished 836 

§  1038.     Jurisdiction  of   State   courts 836 

§  1039.     Pardoning  power  837 

§  1040.     Indians  committing  certain  crimes;  how  punished 837 

§  1041.     Crimes  committed  on  Indian  reservations  in  South  Dakota 838 

§1042.     Qualified  verdicts   in   certain   cases 838 

§  1043.     Body  of  executed  offender  may  be  delivered  to  surgeon  for 

dissection ' 839 

§  1044,     Who   are  principals • •  •  839 

§1045.     Punishment   of   accessories.. 839 

§  1046.     Accessories  to  robbery  or  piracy 839 

§  1047.     Felonies  and  misdemeanors 840 

§1048.     Murder  and  manslaughter;  place  where  crime  deemed  to  have 

been  committed  840 


xlvi  Table  of  Contents 

PAGE 

§  1049.     Construction  of  certain  words 840 

§  1050.     Omission  of  words  "hard  labor"  not  to  deprive  court  of  power 

to   impose    840 

§1051.     Arrangement  and  classification   of   sections 841 

§  1052.     Jurisdiction  of  circuit  and  district  courts 841 

CHAPTER  LXIII. 

VIOLATIONS     OF     INTERSTATE     COMMERCE. 

White  Slave  Traffic  Act. 

§  1055.     Definition,   Interstate   Commerce 843 

§  1056.     Transportation  of  female  for  prostitution 844 

§  1057.     Securing  Transportation  for  woman  for  prostitution 845 

§  1058.  Knowingly   persuading  women   under   18   years   of   age   to   be 

transported  for   Prostitution    845 

§  1059.     Courts  having  Jurisdiction 846 

§  1060.     Alien   Women,   Foreign   Commerce 846 

INTERSTATE   RAILROAD   PASS. 

§  1061.     Interstate    free    passes,    illegal    use 848 

FBCIT    SHIPMENTS. 

§  1062.  The  Standard  Barrel  for  Fruit  and  Dry  Commodities,  Cran- 
berry   Barrel    850 

§  1063.     Punishment    for   Shipment    Interstate,   Fruits   below    standnrd 

Barrel     851 

§  1064.  Transjiorting  intoxicating  liquors  in  Interstate  Commerce  ex- 
cept for   scientific   Purposes    851 

PRIZE  FIGHT. 

§1065.     Prize    Fight    Films,    Interstate    Transportation    thereof 852 

§  1066.     Intent  to  Prevent,  Interfere,  or  Obstruct  foreign  commerce. .  852 

8  1067.     Larceny   of   Interstate   siiipment 852 

§1068.     Under  Act  Feb.  13,  1913,  Conviction,  State  Court  a  bar  under 

act 854 

§  1069.     An  Act  to  punish  the  transportation  of  stolen   motor  veliieles 

in    Interstate    or    foreign    commerce 854 

§  1070.     Convictions  in  restraint  of  trade.    Penalty 855 

§  1071.     Monopolizing  or  attempting  to  do  so  of  commerce  among  the 

St.'ite.s   or  Foreign    nations,   unlawful.      Punisliment 855 

§  1072.     Introducing  falsely  labeled  dairy  jiroduct  or  food 856 

§  1073.      HefuHal    to   testify   before   Interstate   Commerce   Commission; 

Penalty    856 

§1074.  llU'gai  tr!iiisp(irt;it  ion  of  insect  jiests  in  intersl;ite  (■(iinuierce  857 
8  1075.     Person  guilty  of  violating  section  one  of  this  Act,  May  3,  1905. 

Penalty    858 


Table  of  Contents  xlvii 

PAGE 

§  1076.  Unlawful  to  manufacture  adulterated  food  or  drug,  punish- 
ment        858 

§  1077.  Shipping  and  delivery  adulterated  drugs  and  food  in  inter- 
state commerce,  punisliment 859 

§  1078.  Eegulations  prescribed  by  Secretary  of  Agriculture  of  inspec- 
tion of  meat ^^jO 

§  1079.     Adulterated    or    misbranded    insecticides   forbidden    shipment. 

Penalty    865 

§  1080.     Officers  of  Common  Carriers  engaged   in  interstate  commerce 

must    make    monthly    reports    accidents 866 

§1081.     Officers   of  Common   Carriers   must   make   report  for  failure; 

punishment    866 

§  l082.  Keporl  by  Common  Carrier  of  accident  not  to  be  used  as  evi- 
dence        867 

§  1083.  Punishment  for  refusal  to  testify  to  make  false  entry  in  report, 
wilfully  mutilate  docmnentary  evidence,  or  a  corporation 
failing  to  file  report  before  trades  commission 867 

§  1084.  Violations  of  Anti  Trust  Law  of  corporation  apply  to  its  of- 
ficers and  agents.     All  are  punished 868 

§  1085.  Secretary  of  Agriculture  may  demand  to  inspect  and  grade 
grains,  may  also  revoke  license  after  opportunity  has  been 
given  of  hearing   869 

§  1086.  No  grain  shall  be  shipped  in  interstate  commerce  unless  in- 
spected, selling  and  offering  for  sale,  etc 871 

§  1087.     Violation  Act  Aug.  11,  1916,  including  sections  four  and  seven 

of  second  Act ;   punishment    872 

§  1088.  Interfering  with  the  duties  of  an  officer  or  employee  of  De- 
partment of  Agriculture;   punishment    873 

§  1089.  Forging,  counterfeiting,  etc.,  license  of  Secretary  of  Agricul- 
ture and  violating  section  eight  of  Act  Aug.  11,  1916,  part 
"c";    Penalty    873 

•  SHIPMENT  OF  LIME. 

§1090.     Lime  barrels  must  be  marked,  stenciled   and   branded 873 

§  1091.     Lime  sold  in  interstate  or  foreign  commerce  in  less  capacity 

than  standard  barrel,  hoAV  marked 874 

§  1092.     Eules  and  regulations  allow  variations 874 

§  1093.     Importer  selling  imported  article  at  a  price  substantially  less 

than  the  actual  market  value  in  U.  S. ;  punishment 874 

§  1094.     Punishment  for  restraint  of  trade  between  any   Territory  of 

U.  S.  and  another,  etc 876 

§  1095.     Unlawful  to  sell  lime  not  properly  marked 876 

§  1096.     Variation  of  standard  barrels  may  be  permitted 876 

§  1097.     Violations  for  using  lime  in  barrels — punishment 877 

§  1098.     Standard  baskets  for  grapes  and  small  frui  s 877 

§1099.     Standard  capacity  of  containers  of  small  fruits  and  berries..  878 

§  1100.     Punishment  for  using  baskets  not  up  to  standard 878 


ilviii  Table  of  Contents 

CHAPTER  LXrV. 

OFFENSES   AGAINST    FOREIGN    AND    INTERSTATE    COMMERCE. 

§  1103.  Dynamite,  etc.,  not  to  be  carried  on  vessels  or  vehicles  carry- 
ing passengers  for  hire 880 

§  1104.     Interstate    Commerce    Commission    to    make    regulations    for 

transportation  of  explosives  881 

§  1105.  Liquid  nitroglycerin,  etc.,  not  to  be  carried  on  certain  ves- 
sels and  vehicles   882 

§  1106.     Marking  of  packages  of  explosives;,  deceptive  marking 882 

§  1107.     Death  or  bodily  injury  caused  by  such  transportation 883 

§  1108.  Importation  and  transportation  of  lottery  tickets,  etc.,  for- 
bidden      883 

§  1109.     Interstate    shipment   of   intoxicating  liquors;    delivery  to   be 

made  only  to  bona  fide  consignee 884 

§  1110.  Common  carrier,  etc.,  not  to  collect  purchase  price  of  inter- 
state shipment  of  intoxicating  liquors 885 

§  1111.  Packages  containing  intoxicating  liquors  shipped  in  inter- 
state commerce  to  be  marked  as  such 885 

§1112.     Importation  of  certain  wild  animals  and  birds  forbidden....   886 

§  1113.     Transportation  of  prohibited  animals   886 

§  1114.     Marking  of   packages    887 

§1115.     Penalty  for  violation  of  three  preceding  sections 887 

§1116.     Importation  and  transportation  of  obscene,  etc.,  books,  etc...  887 

CHAPTER  LXV. 

OFFENSES   RELATING    TO   INDIANS, 

§1119.     Trader  in  Indian  country  without  license,  penal 889 

§  1120.     Foreigner  in  Indian  country  without  passport  liable  to  penalty 

$1,000     890 

§  1121.     Removing    cattle,    etc.,    without    permission    of    Secretary    of 

War    890 

§  1122.  General  laws  U.  S.  extended  to  Indian  country  in  criminal  mat- 
ters, except  where  specifically  provided 890 

§  1123.     General    laws   U.    S.   concerning   forgery   and   upon  mails   in 

Indian  country  apply  891 

§  1124.     White    person    setting    fire    to    building    on    Indian    country, 

punishment    891 

§  1125.     Indian  or  white  person  making  an  assault  upon  each  other  with 

guna,  etc.,  punishment  891 

CHAPTER  LXVL 

OFFENSES    RELATING   TO   JAPANESE   AND   CHINESE. 

9  1128.     Violation  of  Act  July  5,  1884,  wliero  punishment  not  otherwise 

provided  for 892 


Table  of  UoNTE^■TS  xlix 

PAGE 

§  1129.  Under  act  July  5,  1884,  certificate  of  identity  of  Chinese  per- 
son be  in  English  language  ani  must  show  his  proper  sig- 
nature and  family  name    893 

§1130.     Landing  Chinese  laborers  in  TJ.  S.  guilty  of  a  misdemeanor.,  894 

§  1131.     Forgery  of  name  written  on  identity  certificate  under  act  July 

5,   1884,  misdemeanor    895 

§  1132.     Violation  section  2158  R.  S.  of  U.  S.  dealing  with  Chinamen 

and   Japanese    895 

§  1133.  Bringing  Chinese  to  U.  S.  not  lawfully  entitled  to,  misde- 
meanor       895 

§  1134.  Violation  of  provisions  of  act  July  5,  1884,  by  master  ves- 
sel      896 

§  1135.  Contract  or  attempt  to  contract  in  advancf  of  an  illegal  im- 
portation of  Chinese,  etc.,  contrary  to  section  2158,  R.  S., 
guilty  of  felony    897 

§  1136.  All  persons  amenable  to  laws  of  U.  S.  who  shall  take  any 
Chinaman  or  Jap  or  oriental  from  his  country,  shall  be 
punished    897 

§  1137.  Any  person  who  prepares,  loads  or  equips,  etc.,  any  vessel  to 
trade  in  Chinese  or  Japanese  under  section  2158,  R.  S., 
punishment   898 

§  1138.     Section  2158,  R.  S.  of  U.  S.,  making  it  unlawful  to  dispose  of 

or  sell  for  any  time,  subject  of  China  or  Japan,  etc 898 

CHAPTER  LXVII. 

MISCHILLANEOrS    OFTENSES. 

§  1140.     Licenses  for  collecting  foreign  coupons,  etc.,  punishment 902 

§  1141.     Concealing  property  on  boundary  between  U.  S.  and  foreign 

country,  punishment   903 

§1142.     Bribing  voter,  in  senatorial  and  representative  elections.,..  903 
§  1143.     Congressional    elections,    punishment    for    designated    corrupt 

practices  at  primary,  general  or  special  elections 904 

§  1144.     Accepting  fee  for  filing  soldier  homestead  entries,  punishment  904 

§  1145,     Entrapping  Antwerp  or  homing  pigeon,  punishment 905 

§  1146.     Detention,  etc.,  evidence  of  violation 905 

§  1147.     Punishment •  •   905 

§1148.     Accepting  allowance  after  the  right  has  ceased,  punishment..  906 

§1149.     Intent  to  defraud  in  securing  allotment 906 

§  1150.     Knowingly    making    false    statement    for    family    allowance, 

perjury     906 

§  1151.  Ten  per  cent  allowed  attorney  fee,  war  risk  insurance  punish- 
ment   for    906 

§1152.     Act  relating  to  pensions,  illegal  attorney's  fee,  punishment..   907 
§  1153.     Dealers  in  cotton  to  answer  all  questions,  wilfully  refusing, 

punishment    ^8 


1  Table  or  Contents 

PAGE 

§  1154.     Person  intentionally  and  Tvilfully  making  false  statement,  etc., 

punishment     908 

§  1155.     Ownership  in  other  similar  associations 909 

§  1156.     Association  sale  for  export  trade  not  a  violation  anti  port  act  909 
§  1157.     All  persons  entitled  to  same  privileges  as  to  inns,  public  con- 
veyances  on  land   or   water 910 

§1158.     Punishment  for  violation,  not  permitting  equal  privileges 910 

§  1159.     Offenses  committed  in  National  parks,  punishment 911 

§  1160.  Illegal  for  grantee  to  accept  deed  from  Crow  Indian,  punish- 
ment        914 

§1161.     Establishing  eight  hour  a  day  standard 915 

§  1162.     President    to    appoint    commission 916 

§  1163.  Pending  report  of  commission  the  eight-hour  day  not  re- 
duced       916 

§  1164.     Punishment   of  violation 917 

§  1165.     Contractor  or  officer  of  U.  S.  punished  for  violation  of  U.  S. 

labor  provisions   917 

§  1166.     IT.   S.   compensation   law,   affidavit 917 

§1167.     Perjury  to  make   false   affidavit   for  IT.   S.   conspirators 918 

§  1168.  An  Act  to  create  a  Federal  power  commission;  to  provide  for 
the  improvement  of  navigation;  the  development  of  water 
power;  the  use  of  the  public  lands  in  relation  thereto,  and 
to  repeal  section  18  of  the  river  and  harbor  anpropriation 

Act,  approved  Aug.  8,  1917,  and  for  other  purposes 918 

§  1160.  Dis-^ute  before  labor  board,  compelled  to  testify,  no  incrimina- 
tion   except  perjury    919 

§  1170.     IT.    R.    oTiccrs    converting    funds    coming    to    their    possession, 

punishment    920 

§1171.  Fede-al  board  vocational  education,  discrimination  against  in- 
dustrial   orfTanizations,    etc.,    punisliment 021 

§1172.  Clerk  in  Treasury  Depaitment  carrying  on  business,  punish- 
ment       922 

§117.'i.     Officers  of  the  Treasury  do]inrtTiient  oti'/aiTing  iii  business....    922 
§1174.     f'Inims  afrninst  the  U.   S.   prosecution  of  by  officers,  etc.,  en- 
gat'cd  since  April  6,  1917,  in  procuring  army  su])]ilies,  un- 
lawful        92.3 

§  117.".  Federal  deficiency  act  for  tlie  fiscal  year  1919,  using  funds  in- 
fluencing   congressmen     923 

§1176.  Joint  resolution  autliori/.ing  the  secretary  of  War  to  issue 
permits  for  the  diversion  of  water  from   the  Niagara  river, 

jiunislmient   for   illegal   use 924 

§1177.      Amending  section   2138,  Revised   Statute  of  the  U.   R.   Indian 

appropriation   not    925 

§117H.     Title   ITT   of  the   War   finance  corporation   act   April   5,   1918, 

general  penalties 926 


Table  of  Contents  li 

PAGE 

§  1179.     Contracts  made  with  secretary  of  war,  navy  and  interior  must 

be  in  writing   926 

§  1180.     Any  person  other  than  the  one  to  whom  a  certificate  was  is- 
sued,  who  falsely   presents  such  certificate   is  guilty   of   a 

misdemeanor    927 

§  1181.     Offenses  under  Act  Jan.  16,  1883,  relating  to  civil  service 928 

§  1182.     To  receive  greater  fee  than  allowed  by  sections  6  to  15,  Act 

May  28,  1896,  by  oflScer,  illegal,  penalty 928 

§  1183.     Tax  on  cotton  sale    929 

§  1184.     Penalty  under  State  law  act  Aug.  11,  1916,  cotton  future  act.  .   929 

§  1185.     Incriminating  testimony  under   cotton  future   act 929 

§1186.     Additional  punishment  under  act  Aug.  11,  1916,  cotton  act..   929 

§  1187.     Punishment  for  Act  Aug.  11,  1916,  cotton  future  act 930 

§1188.     Section    3744,    Revised    Statutes   U.    S 930 

§  1189.     Unlawful  to  export  white  phosphorus  matches 931 

§1190.     The  provision  of  lease  shall  not  apply  to  lands 931 

§  1191.     Eeturn   of   officer   must   be   sworn   to   before   officer,    form   of 

affidavit  931 

§  1192.     Failure  to  make  return  by  U.  S.  officer,  penalty 932 

§  1193.     Public  printer   is  accountable   for   all  materials  received  for 

public  use,  penalty  for  failure 932 

§  1194.     Public  printer  defrauding  the  Government 933 

§  1195.     Opening  or  tapping  water  mains  of  the  U.   S.  water  supply, 

subject  to  prosecution   933 

§  1196.     Maliciously    breaking    or    destroying   Government    watermains 

or    pipes,    punishment    933 

§  1197.     Maliciously  causing  water  supply  in  cities  of  Washington  and 

Georgetown  to   become   impure 933 

§  1198.     Violation   act   Aug.   24,   1912,   regulating  furbearing  animals, 

punishment,   jurisdiction    934 

§1199.     Violating  provision   of   Act  Oct.   6,  1917,  40   Stat.   388 934 

§  1200.     Marshal  failing  to  serve  warrant  on  person  charged  with  violat- 
ing civil  rights  act 935 

§  1201.     Duties   of   clerk   of   U.    S.   courts,   etc.,  removed   from   office, 

penalty     935 

§  1202.     Failure  of  clerk  to  perform  duties  as  provided  by  Act  Feb. 

22,   1875    936 

§  1203.     Tax  on  decedents '  estates,  what  is  person,  what  is  executor, 

etc 936 

§  1204.     The  executor  must  file  return  within  thirty  days 937 

§  1205.     Act   Sept.   8,   1916,  knowingly  making   false  returns   of   dece- 
dent 's  estate  tax  937 

§  1206.     The  tax  imposed  in  the  decedents'  estates 938 

§  1207.     Under  the  bankruptcy  act  of  July  1,  1898,  the  following  acts 

are    punishable    939 

§  1208.     Prohibition  against  importing  adulterated  seeds,  punishment.   940 


lii  Table  of  Contents 

PAGE 

§  1209.    What  is  adulterated  seeds   ;  941 

§  1210.     Punishment  under  Act  Aug.  24,  1912 .* . .  942 

§  1211,     Salt  pork  to  be  inspected  for  transportation,  packages  must  be 

marked,  punishment  for  forging  marks,  etc 942 

1 1212.     Act   Feb.    21,    1905,    relating    to    stamping    "United    States 

assay ' '  unlawfully,  punishment  for  violation 943 

?  1213.     Act  June  13,  1906,  relating  to  dealer  in  gold  and  silver  ware, 

punishment  for  violation   944 

LYVIIl 

CHAPTEE  LVIII. 

OFFENSES   RELATING   TO   MAILS. 

§  1216.     Non-mailable  matter    945 

§  1217.     Letter   advising  treason,    etc , 945 

§  1218.     Punishment  for  advocating  treason 946 

0  1219.  Electric  urban  or  interurban  railroad  refusing  to  carry  mail.  .  946 
^  1220.     Auditor  with   consent  of  postmaster   general   remit  fine   and 

penalties    946 

^  1221.     Postmaster  general  may  discharge  prisoner  for  debt 947 

?  1222.  No  contract  for  supplies  shall  be  made  with  any  person  who 
has  entered  into  combination  to  permit  bidding,  punish- 
ment   947 

§  1223.  No  contract  for  carrying  the  mail  shall  be  made  with  any 
person  who  has  entered  into  combination  to  prevent  bid- 
ding, punishment    948 

§  1224.     Unlawful  use  of  naturalization  matter,  misdemeanor 948 

§  1225.  Punishing  postmaster  for  making  false  return  special  de- 
livery     949 

§  1226.     Illegal  to  send  insect  pests  in  mail,  punishment 949 

§1227.     Inspection  of  plants  at  state  expense,  proper  marking,  etc...  950 

CHAPTER  LXIX. 

THE    NATIONAL    PROHIBITION    ACT    AND    INTOXICATING    LIQUORS. 

§  123»;.     To  provide  for  the  enforcement  of  War  Prohibition 955 

§  1231.     Oommissioner  must  report  violation  of  War  Prohibition  Act..  956 

§1232.  Whom  liquor  is  kept  is  doclarod  to  be  common  nuisance....  956 
§  1233.      District  attorney  and  attorney  general  may  prosecute  suit  in 

equity    957 

5  1234.     C(mmisRionor  and  inspectors  may  prosecute  all  oflFenses 959 

§  1235.     An/  provision  hereof  invalid,  nil  others  valid 959 

§  1236.     Act   'Iocs  not  repeal  War  Prohibition 959 

S  1 237.     Meai  ing  of  ' '  Liquor  "and  "  Intoxicating  Liquor  " 960 

§  1238.     ConimisHioner    to    report    violation    and    district    attorney    to 

proHvJcutc     961 

H  1239.     Aft<»r    Aft   bocomofl   effective    liquor   cannot   bo   sold,    etc....  962 


Table  of  Contents  liii 

PAGE 

§  1240.     Certain  articles  exempted   962 

§1241.     Commissioner  may  make  analysis  if  necessary 964 

§1242.     Permit    must   be    obtained 965 

§  1243.  Physician  holding  permit  only  person  authorized  to  prescribe  967 

§1244.     Commissioner  must  issue  blanks  for  prescriptions 968 

§  1245.     Permit  may  be  revoked 968 

§  1246.     Permanent  record  must  be  kept  of  sales,  etc 969 

§  1247.     Wholesale  druggist  cannot  sell  at  retail 969 

§  1248.    Label  must  be  attached  to  every  container 969 

§  1249.     Every  carrier  must  make  record  of  shipment  when  received 970 

§  1250.     Shipper  must  notify  carrier  of  nature  of  shipment 970 

§  1251.  Unlawful  for  carrier  to  accept  shipment  upon  false  statement  971 

§  1252.     Order  to  ship  must  be  to  a  good  faith  consignee 971 

§  1253.     Unlawful  to  advertise  sale,  etc 971 

§  1254.     Unlawful  to  advertise  sale  of  utensil  or  contrivance 972 

§  1255.  No  person  shall  knowingly  receive  order  from  any  person  for 

sale  of  liquor,  etc 972 

§1256.  Any  person  injured  by  intoxicated  person  has  right  to  sue..  972 

§  1257.     Place  where  liquor  is  kept  is  common  nuisance 973 

§  1258.     Action  to  enjoin  may  be  brought  in  the  name  of  the  U.  S 973 

§  1259.     Any  intent  to  sell  liquor  may  be  enjoined 975 

§  1260.  Any  violation  of  Injunction  punished  as  contempt,  summarily 

by  the  court 975 

§  1261.  Violation  to  have  in  possession  anything  to  aid  in  manufactur- 


ing 


976 


§1262.     Ofi&cer  may  take  vehicle  used  in  transporting  liquor 977 

§  1263.     The  court  may  deliver  unlawful  liquor  to  any  department 978 

§1264.     Officer  authorized  to  enforce  criminal  laws  may  act 978 

§  1265.     Punishment  for  manufacturing,  selling,  etc 979 

§  1266.  No  person  can  excuse  himself  on  grounds  of  incrimination. . . .  979 

§  1267.  Delivery  to  common  carrier,  jurisdiction  at  point  of  delivery 

to  consignee  980 

§1268.     Several  counts  may  be  joined  and  conviction  had  for  aU 980 

§1269.  After  Feb.  1,  1920,  possession  prima  facie  evidence,  for  sale.   980 

§  1270.     All  reports  required  to  be  filed  subject  to  inspection 981 

§  1271.     All  laws  inconsistent  with  this  act  are  repealed 981 

§  1272.     All  provisions  of  this  Act  invalid  do  not  affect  others 982 

§1273.     Liquor  may  be  stored  in  bonded  ware  houses 982 

§  1274.  The  commissioner  and  the  attorney  general  may  employ  as- 
sistants      984 

§  1275.  Where  property  is  proceeded  against  summons  must  be  served 

personally  on  the  accused  if  in  jurisdiction 985 

§  1276.     General  provisions,  United  States  prohibition  act 985 

§  1277.     Eegulations,  etc.,  to  be  prescribed , '.  985 

§  1278.     Allowance  for  evaporation,  leakage,  etc 986 

§  1279.     Punishment  for  violating  provisions  of  this  title 986 


liv  Table  of  Contexts 

PAGE 

§  1280.     Discretionary  method  of  collecting  tax 987 

§1281.     Eelease  of  seized  property  under  bond 987 

§1282.     (General  revenue  laws,   etc.,  applicable 987 

§  1283.     Inconsistent    laws    repealed    988 

§  1284.     Canal  Zone,  general  prohibition  of  liquors  within 988 

§  1285.     Time   of  enforcement,   immediately 988 

§  1286.     Alcohol  obtained  for  denaturing  purposes  under  Act  June  7, 

1906,  and  sells  same,  penalty 989 

§  1287.     Every  owner,  agent,  etc.,  of  brewery  who  attempts  or  evades 

the  payment  of  the  tax  guilty  of  misdemeanor 990 

§  1288.     Withdrawing   fermented  liquors  from  cask  upon  which   there 

is   no    stamp,   penalty    991 

§  1289.     Selling  fermented  liquors  from  any  cask,  barrel,  or  keg  upon 

which  stamp  has  not  been  affixed,  penalty 991 

§  1290.     Counterfeiting   or  making   false   stamp   for   fermented  liquor, 

penalty    991 

§  1291.     Stamp  on  hogshead  or  other  receptacle  containing  fermented 

liquor,  must  not  be  severed  or  defaced  except  by  owner. . . .  992 
§  1292.     Distiller  knowingly  using  any  false  measure  under  Act   July 

20,  1868    992 

§  1293.    Eevenue  officers  permitting  the  use  of  cancelled  stamps,  under 

Act  July  20,  1868,  penalty 993 

§  1294.     Adding,  before  payment  of  tax  on  distilled  spirits,  substance 

to  create  fictitious  proof  under  Act  July  20,  1868,  punish- 
ment      993 

§  1295.     Under    Act    March    31,    1868,    distiller    attempts    or    defrauds 

government,  punishment    993 

§  1296.     Act  July  20,  1868,  distiller  must  register  still  with  collector 

violation,  punishment   994 

§  1297.     Act  July   20,  1868,  distiller  must  give  notice  of  engaging  in 

business,    failure   penalty    995 

§  1298.     Prohibition  against  certain  places  where  still  may  be  set  up 

under   Act   June   6,   1872 996 

§  1299.  Under  Act  July  20,  1868,  breaking  locks  of  cistern  or  build- 
ing       997 

§1.300.     Under  Act  July  20,  1868,  distiller  must  keep  sign  posted 997 

§1301.  No  distillation  can  be  made  except  in  regular  distillery....  998 
§  1302.  Unlawful  for  ganger  to  allow  others  to  perform  his  duties.  .  .  .1000 
§  1303.     Under   Act  July  20,   1868,  punishes  ganger  who   makes   false 

inspection    1000 

§  1304.     Act  July  20,  1868,  punishment  for  rciuoviiig  spirits  ujjon  wliich 

tax  had   not  been   paid 1 001 

§  1305.     Under  Act  Aug.  27,  1894,  for  violation  of  act  ponalty 1001 

§  1306.     Under  Act  March  3,  1877,  grape  brandy  removed  from   dia- 

tillory  for  deposit  in  special  wnrohouse  limited  to  ten  days, 

failure   penalty    1002 


Table  or  Contents  Iv 

PAGE 
§1.107.     Act  March  3,  1891;  manufacturer  of  sorglium  sugar  may  use 

spirits   for,   punishment   for   violation 1002 

§  1308.     Act  July  20,  1868,  storekeeper  removing  cask  or  package  from 

bond  without  permit  of  collector 1003 

§  1309.  Violation  of  Act  March  3,  1897,  forging,  altering  or  counter- 
feiting stamp,  penalty   1003 

§1310.     Act  June  6,  1872,  false  entries  in  distiller's  books,  penalty.  .1004 

§  1310a.  Book   required  in  section   1310 1005 

§1311.     Eectifiers  intending  to  defraud  the  U.  S.  of  tax    penalty.  ...  1006 

§  1312.     Rectifier  required  to  keep  book,  penalty  for  failure 1007 

§  1313.     Unlawful    for    purchaser    or    rectifier    to    purchase    or   receive 

greater  quantity  than  20   gallons 1008 

§  1314.     Rectifiers  who  fail  to  comply  with  the  laws,  punishment 1009 

§  1315.     Under  Act  July  20,  1868,  failure  to  deface  stamp,  who  draws 

off   spirits,   punishment    1010 

§  1316.     Affixing  spurious  stamp  to  cask,  penalty 1011 

§1317.     Transporting  intoxicating  liquors  in  interstate  commerce.  ..  .1011 

§  1318.     Sale  of  intoxicating  liquors  in  Indian  country,  penalties 1013 

§  1319.     Setting    still    for   manufacture    of    liquor   in    Indian    country, 

penalty    $1000     1015 

§  1320.     Seizure  and  confiscation  of  vehicles  used  in  introducing  liquors 

into  Indian  country    1016 

§  1321.  Provisions,  sections  2140  and  2141,  R.  S.,  shall  apply  to  beer 
at  the  prima  facie  evidence  of  unlawful  possessing  of  liquor 

in  Indian  country   1016 

§  1322.     Prohibition  liquors  at  or  near  any  post,  punishment 1016 

CHAPTER  LXX. 

VIOLATION    BY    NATIONAL    RESERVE    AND    LAND    BANKS. 

§1325.     Punishment   for  violation  by  bank   oflSeials 1018 

§  1326.  Amendment  of  section  5208  of  Revised  Statutes  falsely  certify- 
ing checks  by  bank   1020 

§  1327.     Amendment  federal  reserve  act,  as  amended  by  adding  new 

section  25   1022 

§  1328.     False  statement  by  applicant  for  loan  under  federal  farm  loan 

act,   punishment    1023 

§  1329.     Forgery,  etc.,  bond  of  any  land  bank  or  National  farm  loan 

association,  punishment   1024 

§  1330.  Defending  or  attempting  to  defend  any  person,  firm  or  cor- 
poration by  making  false  pretense  concerning  any  loan 
under  the  federal  loan  act  is  punishable 1024 

§  1331.     Any  person   connected  with   federal   land   bank   or   farm   loan 
association    or    joint   stock   land    bank    who   embezzles,   ab-    • 
stracts  or  wilfully  misapplies  any  moneys,  etc.,  penalty. ..  .1025 


Ivi  Table  of  Contents 

PAGE 

§  1332.  No  officer^  etc.,  shall  secure  fee  from  any  land  bank,  punish- 
ment     1026 

§  1333.     Declaring  any  clause,  sentence,  paragraph  or  part  of  Act  July 

17,  1916,  invalid  does  not  affect  any  other  portion  of  Act.  .1027 

§  1334.     All  acts  and  parts  of  acts  inconsistent  with  Act  July  17,  1916, 

repealed    1027 

CHAPTER  LXXI. 

OFFENSES    RELATING    TO    NAVIGATION. 

§1337.     What  is  "master,"  "seaman,"  and  vessel  and  owner 1031 

§  1338.     Officer  or  master   of  a  vessel  inflicting  corporal  punishment 

guilty  of  misdemeanor  1031 

§  1339.  Shipping  commissioner  or  clerk  demanding  or  receiving  ex- 
cessive fee,   punishment    1032 

§1340.     Failure  to  provide  clothing,  etc.,  on  vessel,  penalty 1032 

§  1341.  Penalty  for  master  of  vessel  failing  as  to  weights  and  meas- 
ures     1032 

§  1342.     Master  or  owner  of  vessel  punished  for  failure  to  keep  lime 

juice,  etc.,  on  board   1033 

§  1343.  Vessel  owned  by  U.  S.  citizen  engaged  in  whaling  must  pro- 
vide lemon  juice,  etc 1033 

§  1344.     Punishment  for  offenses  committed  by  seaman 1034 

§1345.     Neglect  of  duty  and  drunkenness  of  sailor,  punishment 1035 

§  1346.     Soliciting  seaman  to  become  a  lodger,  within  twenty-four  hours 

after  anchoring  1036 

§  1347.     Unauthorized    person    going    aboard    vessel,    before    landing, 

punishment 1036 

§  1348.     Merchant  marine  violation  of  act  of  Congress  Sept.  7,  1916, 

where  no  different  penalty  is  provided 1037 

§  1349.     Unauthorized    person    breaking   lock    or    fastening   on   vessel, 

penalty    1037 

§1350.     Section  9,  of  "shipping  Act  of  1916"  amended  as  follows.  .1037 

§  1351.     Unlawful  to  advance  wages  to  seamen,  punishment 1039 

§1352.     Soldiers'   and   sailors'   civil   relief   act,   punislimcnt   for   false 

affidavits   1040 

§  1353.     Failing  to  go   to  port  of   destination 1040 

§1354.     Steamers  running  on  rivers  must  furnish  stairways 1041 

§  i:i55.     Odiccrs  of  shijiH  under  act  Dec.  31,  1792,  making  false  register, 

penalty     1041 

§  1356.     Officers  of  ships  under  act  Dec.  31,  1792,  neglecting  to  perform 

duty,  penalty   1042 

§  1357.     Sending  any  American  ship  to  sea  in  unseaworthy  condition, 

etc.,   punishment    1042 

§  1358.     Master  who  takes  on  board  vessel  more  passengers  than  stated 

in    cortLflcatc    1043 


Table  of  Contents  Ivii 

PAGE 

§  1359.     Captain  must  assign  space  to  deck  passengers 1044 

§  1360.     Failure  to  provide  accommodations  as  provided  in  preceding 

sections,  punishment  1044 

§  1361.  River  steamers  carrying  passengers  must  provide  life  pre- 
servers     1044 

§  1362.     Steamers   carrying   passengers   at   night   must  carry   suitable 

number    watchmen    1044 

§1363.     Neglecting  to  keep  watchmen,  fine  of  one  thousand  dollars..  1045 

§  1364.     Manner  of  packing  explosives  1045 

§  1365.     Failure  to  ship  explosives  as  provided  by  the  preceding  section, 

punishment     1045 

§  1366.     Charges  found  by  inspectors  and  the  wages  due,  must  be  paid 

by  master  1046 

§  1367.     Punishment  for  failing  to  pay  wages,  etc 1046 

§  1368.     Inspector  making  false  certificate  touching  steam  vessel  as  to 

hull,    boilers,    etc.,    penalty 1046 

§  1369.     Changing  any  license  issued  by  inspector  under  Act  March  23, 

1900    1047 

§  1370.     Penalty   for  using  unstamped   and  inspected   steel  plates   in 

steam  vessels   1047 

§1371.     Counterfeiting  any  stamp  on  steel  plates,  penalty 1048 

§  1372.     Affixing  any  false,  forged,  fraudulent,  spurious  or  counterfeit 

stamp  on  steel  plate  in  steam  vessel,  penalty 1049 

§  1373.     Any  officer,  receiver,  etc.,  common  carrier  by  water  disclosing 

information  1050 

§  1374.     Interfering  or  obstructing  light  house  board,  etc 1051 

§  1375.     Eefusal  to  maintain  lights  on  bridges,  etc 1051 

§1376.     Light   house,   jurisdiction,   regulations,    etc 1051 

§  1377.    Using    vessel    in    coast-guard    service    for    private    purpose, 

punishment 1052 

§  1378.     Prima  facie  evidence  to  true  possession  of  sponge  less  than 

five  inches  in  diameter 1052 

§  1379.  Courts  where  violation  may  be  prosecuted  for  selling  or  tak- 
ing sponges    1052 

§  1380.     Selling  or  taking  sponges  is  criminal,  punishment 1052 

§  1381.     Unlawful,  citizen  of  U.  S.  to  take  or  catch  sponges  less  than 

five  inches  in  diameter   1053 

§  1382.  Use  of  navigable  waters  to  be  regulated  by  secretary  of  War.  1053 
§  1383.  Wilfully  and  unlawfully  injuring  any  pier  subject  to  fine.  . .  .1054 
§  1384.     Who  by  culpable  negligence  breaks  or  injures  submarine  cable 

guilty  of  misdemeanor  1054 

§  1385.     A  master  of  vessel  laying  or  repairing  cables  who  fails  to 

observe  rules,  penalty 1054 

§  1386.    Person  who  wilfully  breaks  or  injures  a  submarine  cable  guilty 

of   misdemeanor    1055 


Iviii  Table  op  Contents 

PAGE 

g  1387.     Master  of  fishing  vessel  must  keep  at  least  one  nautical  mile 

from   cable    1055 

§  1388.     Definition  of  terms  used  under  act  Feb.  29,  1888 1056 

§  1389.     Unlawful  to  discharge  or  deposit  any  refuse  matter  in  New 

York  harbor  1056 

§  1390.  Masters  and  engineers  of  vessel  guilty  of  crime  knowingly 
towing  scow  loaded  with  refuse  matter  to  be  emptied  in 
N.  Y.  harbor   1057 

§  1391.     "Waste   matter    to    be    deposited   in    definite    limits    in    N.    Y. 

harbor,  penalty    1058 

§  1392.  Wilfully  and  knowingly  violating  rules  of  reservoirs  at  head- 
waters of  Mississippi,  punishment 1058 

§  1393.     No  obstruction  may  be  made  in  the  navigable  waters  except 

by  act  of  Congress   1059 

§  1394.     Unlawful  to  engage  in  fishing  in  channels  adjacent  to  N.  Y. 

harbor,  penalty    1060 

§  1395.     Drawbridges  subject  to  rules  of  Secretary  of  War  and  failure 

to  comply  with  them  a  misdemeanor 1061 

§  1396.     No  building,  wharves,  etc.,  may  be  made  except  upon  places 

recommended    by    chief    engineer 1062 

§  1.397.     Violations,  sections  9,  10  and  11,  act  March  3,  1899 1063 

§  1398.  Unlawful  to  throw  any  refuse  matter  from  ships,  mills,  manu- 
facturing plants,  etc.,  into  any  navigable  water  in  U.  S...1063 

§  1399.     Unlawful  to  build  upon,  use  or  in  any  manner  impair  any  sea 

wall,  etc.,  built  by  the  U.   S 1064 

§  1400.     Unlawful  to  anchor  vessels  in  navigable  waters,  etc.,  to  float 

loose  timber  or  logs,  etc 1065 

§  1401.  Every  person  and  corporation  violating  sections  13  14  and 
15  and  every  master,  pilot  or  engineer  who  knowingly  en- 
gages in  towing  scow  that  is  loaded  with  material  specified 
in  section  14,  or  obstructing  any  waterway  under  section 
15,  act  March  3,  1899,  shall  be  punished 1065 

§  1402.  Railroad  bridge  over  navigable  waters,  failure  to  correct  ob- 
struction after  notice  by  Secretary  of  War,  guilty  of  mis- 
demeanor    1067 

§  1403.     The  dopartinont  of  Justice  sliall  conduct  prosecutions  under  act 

March  3,  1899    1068 

§  1404.  Regulations  and  rules  to  lie  made  by  Secretary  of  War  concern- 
ing the  floating  of  logs,  section  15,  act  March  3,  1899,  shall 
not  apply    1 069 

S  1405.     Secretary  of  War  .shall  make  rules  and  rcgulation.s  concerning 

dumping  refuse  material   into   navigable  waters 1071 

§  1406.     Any  jiorson  directly  or  indirectly  giving  any  sum  of  money  to 

any  insi)ector  of  navigation,  punishable 1072 

§  1407.     TTnlawfuI    to    deposit    or    dump    any    refuse    iiuitter    in    Lake 

Michigan,  punishment    1072 


Table  of  Contents  lix 

PAGE 

§  1408.  Person  owning  or  operating  dam,  under  provisions  of  act 
June  23,  1910,  failing  to  maintain  lights  and  signals,  punish- 
ment    1073 

§  1409.  Failure  to  comply  with  lawful  order  of  Secretary  of  War 
and  Chief  Engineer  under  Provisions  Act,  June  23,  1910,  a 
misdemeanor.    Also  act  March  23,  1906 1074 

§  1410.     Secretary  of  War  to  prescribe  rules  and  regulations  concerning 

navigation,  punishment  for  violation 1074 

CHAPTER  LXXII. 

NEUTRALITY. 

Offenses  Against  Neutrality. 

§  1413.  Accepting  a  foreign  commission 1075 

§  1414.  Enlisting  in  foreign  service 1075 

§  1415.  Arming  vessels  against  people  at  peace  with  the  United  States.  1076 

§  1416.  Augmenting  force  of  foreign  vessel  of  war 1077 

§  1417.  Military  expeditions  against  people  at  peace  with  the  United 

States    1077 

§  1418.  Enforcement  of  foregoing  provisions   1078 

§  1419.  Compelling  foreign  vessels  to  depart 1078 

§  1420.  Armed  vessels  to  give  bond  on  clearance 1079 

§  1421.  Detention  by  collectors   of  customs 1079 

§  1422.  Construction  of  this  chapter    1080 

CHAPTER  LXXIII. 

OPIUM. 

§  1425.     Chinese   introducing   opium   in   violation   of   Act  of   Feb,   23, 

1887    1081 

§  1426.     No    citizen    of    the    United    States    shall    import    opium    into 

Chinese    port    1081 

§  1427.     Fraudulently    and    knowingly    importing    opium    into    U.    S., 

penalty    1082 

§  1428.  Person  having  smoking  opium  in  possession  who  fails  to  report 
to  principal  officer  of  vessel  destined  to  or  bound  from  the 
United  States,  guilty  under  section  2 1083 

§  1429.     No  person  subject  to  jurisdiction  of  U.   S.   shall  not  export 

opium,  etc 1084 

§  1430.     Exportation  prohibited  by  following  penalties 1085 

CHAPTER  LXXIV. 

PENSIONS  AND  ALLOWANCES  TO  SOLJ)IERS. 

§  1433.  Any  agent  or  attorney  for  any  pensioner  without  his  consent 
withholds  any  discharge  papers  or  land  warrant  guilty  of 
misdemeanor    1086 


Ix  Table  OF  Coxtents 

PAGE 

§  1434.  Attorney,  etc.,  demanding  more  than  legal  compensation  or 
who  •withholds  any  part  of  a  pension  guilty  of  high  mis- 
demeanor     1087 

§  1435.     Agent  or  attorney  may  file  with  commissioner  duplicate  claims, 

fee  is  ten  dollars,  penalty  for  violation 1088 

§  1436.     Attorneys  retaining   or  collecting  for  more  than  ten  dollars 

in   securing   pensions,   punished   for   violation 1091 

§  1437.     Illegal  in  increase  of  pension  to  contract  for  a  greater  fee  than 

two  dollars,  punishment  for  violation 1091 

§  1438.     Embezzlement  of  any  pension,  held  in  trust  as  guardian,  etc., 

criminal    1092 

§  1439.  Pension  to  Civil  war  nurses,  attorneys '  fee  not  allowed,  viola- 
tion misdemeanor 1093 

§1440.     False   oath   in   prosecuting   for  pension,   perjury 1094 

§  1441.  The  making  or  procuring  to  be  made  a  false  affidavit,  know- 
ingly concerning  any  pension,  and  any  false  acknowledg- 
ment criminal    1094 

§  1442.  No  person  attorney,  claim  agent  or  other  person  shall  con- 
tract for  any  fee  for  services  in  securing  pensions  by  legis- 
lation in  Congress,  punishment 1095 

§  1443.  Forging  indorsement  of  any  person  on  pension  check  or  utter- 
ing  such   check,   criminal    1096 

§  1444.     Under  federal  compensation  act  accepting  compensation  after 

marriage,  where  same  ceases  upon  marriage 1096 

§1446.     War  insurance,  attorney's  fee,  punishment  for  violation. ..  .1096 

§  1447.  Securing  pension  for  widows  and  minor  children,  pensions 
granted  widows,  etc.,  of  volunteers  in  war  with  Spain, 
Philippines  and   China    1097 

§  1448.     Punishment    for    violation    .' .  1098 

CHAPTER  LXXV. 

OFFENSES  AGAINST  THE  POSTAL  SERVICE. 

Penal  Code,  Act  March  4,  1909. 

§  1452.  Conducting  postofTice  without   authority 1101 

§1453.  Illegal  carrying  of  mail   l)y  carriers  and  others 1101 

§1454.  Conveyance  of  mail  by  private  express  forbidden 1101 

§  1455.  Transporting  persons  unlawfully  conveying  mail 1102 

§  1456.  Sending  letters  by  private  express 1102 

§  1457.  Conveying  of  letters  over  post  routes 1102 

§  1458.  Carrying  letters  out  of  the  mail  on  board  of  vessel 1103 

§1459.  When  conveying  of  letters  by  private  j)eraons  is  lawful 1103 

§1460.  Wearing  uniform   of  carrier   without  autliority 1103 

§1461.  Vehicles,    etc.,   claiming   to    bo   mail    carriers 1103 


Table  of  Contents  Ixi 

PAGE 

§  1462.     Injuring  maU  bags,  etc 1104 

§  1463.     Stealing   postoffice    property    HO* 

§  1464.     Stealing  or  forging  mail  locks  or  keys 1104 

§1465.     Breaking  into   and  entering  postoflS.ce 1105 

§1466.     Unlawfully  entering  postal  car,  etc 1105 

§  1467.     Stealing,  secreting,  embezzling,  etc.,  mail  matter  or  contents.  .1106 
§  1468.     Postmaster  or  employee  of  postal  service  detaining,  destroy- 
ing, or  embezzling  letter,  etc 1106 

§  1469.    Postmaster,  etc.,  detaining  or  destroying  newspapers 1107 

§  1470.     Assaulting  mail  carrier  with  intent  to  rob,  and  robbing  mail.  .1107 
§1471.     Injuring    letter   boxes    or   mail    matter;    assaulting    carrier, 

etc 1108 

§  1472.     Deserting  the   mail    1108 

§  1473.     Delivery  of  letters  by  master  of  vessel 1108 

§  1474.     Obstructing   the   mail    1109 

§  1475.     Ferryman  delaying  the  mail 1109 

§  1476.     Letters  carried  in  a  foreign  vessel  to  be  deposited  in  a  post- 

oflfice 1109 

§  1477.    Vessels  to  deliver  letters  at  postoflSce;  oath 1110 

§  1478.     Using,   selling,   etc.,   canceled   stamps;    removing  cancellation 

marks    from    stamps,    etc 1111 

§  1479.     False  returns  to  increase  compensation 1111 

§  1480.     Collection  of  unlawful  postage  forbidden 1112 

§  1481.     Unlawful  pledging  or  sale  of  stamps 1112 

§  1482.     Failure  to  account  for  postage  and  to  cancel  stamps,  etc.,  by 

officials 1113 

§  1483.     Issuing  money  order  without  payment 1113 

§1484.     Obscene,    etc.,    matter    nonmailable 1113 

§  1485.     Libelous  and  indecent  wrappers  and  envelopes 1115 

§1486.     Lottery,   gift   enterprise,   etc.,   circulars,   etc.,   not  mailable.  .1115 

§1487.     Postmasters  not   to  be  lottery  agents 1116 

§  1488.     Use  of  mails  to  promote  frauds 1117 

§1489.     Fraudulently    assuming    fictitious    address 1118 

§  1490.     Poisons  and  explosives  non-mailable 1118 

§  1491.     Counterfeiting  money  orders   1120 

§  1492.     Counterfeiting  postage  stamps    1121 

§  1493.     Counterfeiting,  etc.,  foreign  stamps 1122 

§  1494.     Inclosing  higher  class  in  lower  class  matter 1122 

§1495.     Postmaster   illegally   approving  bond,   etc 1122 

§1496.     False  evidence  as  to  second  class  matter 1123 

§1497.     Inducing    or    prosecuting   false    claims 1123 

§1498.     Misappropriation  of  postal  funds  or  property 1124 

§  1499.     Employees  not  to  become  interested  in  contracts 1125 

§1500.     Fraudulent  use  of  oflfieial  envelopes 1125 

§  1501.     Fraudulent  increase  of  weight  of  mail 1125 


Ixii  Table  of  Contents 

PAGE 

§1502.     Offenses  against   foreign   mail   in   transit 1125 

§  1503.     Omission   to   take   oath 1126 

§  1504.     Definitions    1126 

CHAPTER  LXXVI. 

OFFENSES    AGAINST    PUBLIC    JUSTICE. 

Penal  Code,  Act  March  4,  1909. 

§  1507.  Perjury    1127 

§  1508.  Subornation   of   perjury    1128 

§1509.  Stealing  or  altering  process;   procuring  false  bail,  etc 1128 

§  1510.  Destroying,  etc.,  public  records 1128 

§  1511.  Destroying  records  by  officer  in  charge 1129 

§  1512.  Forging   signature   of  judge,   etc 1129 

§  1513.  Bribery  of  a  judge   or  judicial  officer 1129 

§  1514.  Judge  or  judicial  officer  accepting  a  bribe,  etc 1130 

§  1515.  Juror,  referee,  master,  etc.,  or  judicial  officer,  etc.,  accepting 

bribe    1130 

§  1516.  Witness    accepting    bribe 1130 

§  1517.  Intimidation  or  corruption  of  witness,  or  grand  or  petit  juror, 

or  officer    1131 

§  1518.  Conspiring  to  intimidate  party,  witness,  or  juror 1131 

§  1519.  Attempt  to  influence  juror 1132 

§  1520.  Allowing   prisoner   to   escape 1132 

§  1521.  Apjilication   of   preceding  section 1132 

§  1522.  Obstructing  process  or  assaulting  officer 1133 

§  1523.  Rescuing,    etc.,    prisoner;    concealing,    etc.,    person    for    whom 

warrant   has   issued    • 1133 

§  1524.  Rescue    at    execution 1133 

§  1525.  Rescue  of  prisoner 1134 

§  1526.  Rescue   of  body  of  executed   offender 1134 

§  1527.  Extortion    by   informer    1134 

§  1528.  Misprision    of    felony 1134 

CHAPTER  LXXVII. 
OFFENSES    RELATING    TO    PUBLIC    LANDS. 

§  l.'j31.     Cutting  or  wantonly  destroying  red  cedar  or  Iiemlock  on  public 

lands,  punishment   1136 

§  1.'332.     Falsely    making    or    altcMiii";    iiislruiiicnt    nflVi'ting    lands    and 

minerals  in  California,  jiunislied  by  hard  labor 1137 

91533.     Violation   of  Act  Jiinr  .3,  187S,  relating  to  cutting  timber  on 

mineral  lands,  misdemeanor   1138 

§  l.'>34.     No  person   by   force  or  throats,   or   by  conspiring  witli   otliors 

prevent  others  from  settlement  on  public  land 1  ]'.V^ 

§  1535.     Penalty  for  prcventinjf  settlement  upon  public  land 1140 


Table  of  Contents  Ixiii 

PAGE 
§  1536.     Unlawful  to  procure  any  person  to  settle  upon  land  in  Okla- 
homa with  intent  to  acquire  title 1140 

§1537.     Offenses  against  military  and  national  parks,  punishment.  ..  .1140 

§  1538.     Defense   for  cutting  timber 1141 

§  1539.     Eegister  and  receiver  is  empowered  to  subpoena  witness 1142 

§  1540.     Witness  after  demand  and  payment  of  witness  fee  failure  to 

testify  misdemeanor   1142 

§  1541.     Homestead  entrymen  and  witness  making  false  affidavit  and 

others  as  to  any  material  matter,  guilty  of  perjury 1143 

§  1542.     Punisliment  for  destruction  of  historic  or  prehistoric  ruins  on 

Government   land    1144 

§  1543.     Punishment  for  preventing  others  from  settling  on  public  lands 

under  Act  Feb.   25    1885,   23  Stat.   322 1144 

§  1544.     Unlawful   to   trap,   kill  or  capture  animals  in  Grand   Canyon 

forest  reserve  except  as  by  regulations 1144 

§  1545.  Punishment  for  hunting,  catching,  wilfully  destroying  or  kill- 
ing birds  and  animals  in  limits  as  provided  under  Act  Aug. 
11,    1916    1145 

CHAPTER  LXXVIII. 

VIOLATION    OF   QUARANTINE  LAWS. 

§  1548.  Trespassing  upon  quarantine  reservation  prohibited,  punish- 
ment    1148 

§  1549.  In  cases  cholera  and  other  certain  diseases  Secretary  makes 
rules  and  regulations  to  prevent  spread  of  disease,  punish- 
ment   for    violation 1148 

§  1550.  Any  officer  or  agent,  etc.,  for  U.  S.  at  any  quarantine  station 
who  violates  the  rules  and  regulations  as  provided  in  sec- 
tion one  this  Act  guilty  of  misdemeanor 1149 

§  1551.  Common  carrier  violations  quarantine  laws,  rules  and  regula- 
tions,  officers   and    agents,   punishments 1148 

§  1552.     Punishment  for  moving  diseased  carcasses  from  one  State  to 

another,   penalty.   Act   Mar.   3,   1891 1150 

§  1553.  Importing  diseased  cattle,  etc.,  punishment  for  knowingly  do- 
ing so 1150 

§1554.  Master  or  owner  violating  Act  Mar.  3,  1901,  or  any  regula- 
tions thereunder  in  relation  to  inspection  of  vessels  on  the 
prevention    of   diseases -1151 

§  1555.     Illegal    for   merehf^nt    or    other   vessel    from    foreign    port    to 

enter  U.  S.  port  except  as  prescri])ed  by  Act  Feb.  15,  1893.1152 

§  155C.  Secretary  of  Agriculture  may  make  regulations  and  quaran- 
tine against  diseased  stock 1152 

§1557.     Violations  Act  Feb.  2,  1903,  and  regulations  thereunder .1153 

§  1558.  Violating  rules  of  Secretary  of  Agriculture  in  shipping  con- 
demned carcasses  of  cattle,  etc.,  from  one  State  to  another.  11 53 


Ixiv  Table  of  Contents 


PAGE 

§  1559.     Inspection  of  carcasses  of  cattle  the  regulation  Agriculture 

Department.     Defacing  stamp,  etc.     Punishment 1154 

§  1560.     No    railroad    shall    receive    for    shipment    cattle    from    one 

quarantined  State  to  another 1154 

§  1561.     Secretary  may  make  registration  for  shipping  cattle,  etc 1155 

§  1562.     Cattle   may   be   moved   from   quarantine    in   accordance   with 

regulations    of    Secretary    of    Agriculture 1155 

§1563.     Punishment  for  violating  provisions  of  Act  of  Mar.  3,  1905..  1156 
§  1564.     Entering  or  departing  into  or  from   any  quarantine  grounds 
in  violation  of  law,  and  an  officer  making  false  statement, 
misdemeanor  1156 


CHAPTER  LXXIX. 

VIOLATIONS    OP   INTERNAL    REVENUE. 

§  1566.     Income  tax  provisions,  punishment  for  violation  of  revenue- 
laws  and  regulations 1161 

§  1567.     Produce  sale  for  future  delivery,  punishment  for  delivery  with- 
out stamped  bill,  produce,  sales  of,  on  exchange 1162 

§  1568.     Stamps   must  be  cancelled 1163 

§  1569.     Fraudulently  using,   cutting,  and  attaching  and  affixing   ad- 
hesive stamp  or  impressions  of  stamps 1164 

§  1570.     Schedule  "A"  stamp  taxes,  punishment  for  sale,  etc.,  without 

affixing    stamp    1165 

§  1571.     Statement  intended  to  make  one  believe  that  the  price  is  part 

of   tax   imposed,   punished 11G6 

§  1572.     Making,   signing,    or   accepting,   instruments   without   stamps, 

punishment   1167 

§  1573.     Unlawful  for  any  deputy,  or  collector,  or  employee  to  divulge 

information,    etc 1167 

§  1574.     Punishment  for  refusing   the  inspection  of   mine,  etc.,   under 

child    labor    provision 1168 

§  1575.     The  price  of  ticket  and  name  of  vendor  must  be  stamped  on 

face    1168 

§  1576.     Title  IV.  Act  Feb.  24,  1919 1169 

§  1577.     Provisions  imposing  additional   tax  on  liquors,  purifying  and 

rectifying  williin  meaning  of  Sec.  3244  R.  S 1169 

§  1578.     For  failing  to  pay  tax  and  make  return,  etc 1171 

§1579.     Fraudulently  executing  documents  relating  to  revenue  laws... 1171 
8  1580.     Defrauding  or  attempting  to  defraud  U.  S.  gov't,  in  carrying 

on   distillery 1172 

g  1581.     General  revenue  Act  July  20,  1868,  fraudulent  gauging,  etc. .  .1172 

§  1582.     Meaning  of  words  ' '  white  phospliorus.  " 1172 

§1583.     One  fhousnTul  dollars   fine  for  f.iiling  to  conduct  business  ac- 

''ording  to  regulations 1173 


Table  of  Contents  Ixv 

PAGE 

§1584.     Penalty  for  failing  to  a&x,  etc.,  stamp  according  to  Gov't. 

regulations    1173 

§  1585.     Collector  shall  furnish  stamps  to  be  sold  manufacturer 1174 

§  1586.     Packages  of  matches  found  Avithout  stamps  shall  be  forfeited 

to   the  U.  S 1174 

§  1587.     Penalty  for  defacing  stamps  on  matches 1175 

§  1588.     Penalty  for  insufficient  stamps 1175 

§  1589.     Penalty  for  failing  to  use  stamps  on  matches 1175 

§  1590.     Manner  of  packing  matches,  must  be  stamped 1176 

§  1591.     Penalty  for  match  manufacturer  who  fails  to  register 1177 

§  1592.  Tobacco  manufacturer  must  secure  certificate  showing  ma- 
chines, etc.,   punishment   for  failure 1177 

§  1593.     Manufacturer  of  tobacco  must  post  sign  on  building 1179 

§  1594.  A  tobacco  peddler  must  exhibit  certificate  on  demand  of  reve- 
nue agent,  penalty  for  failure 1179 

§1596.     Eelanding  tobacco,  snuff,  or  cigars  with  intent  to  defraud.  .1180 

§  1597.     Manufacturer  of  cigars  failing  to  give  bond,  penalty 1182 

§  1598.     Manufacturer   must   keep    sign   posted 1182 

§  1599.     "Wilful   neglect   in   making   true    inventory    and    abstracts    by 

manufacturer    of    cigars 1182 

§  1600.     Cigars   not   weighing   more   than   three   pounds   per   thousand 

must   be   packed  in  boxes  not  used   before 1183 

§  1601.     Penalty  for  failure  to  put  notice  on  each  box  cigars 1184 

§  1602.     Cigars  must  not  be  removed  from  manufactory  without  boxingll85 
§  1603.     The  actual  maker  of  cigars  upon  commission  contract  must 

affix  stamp  before  the  same   are  removed 1186 

§  1604.     Cigars  imported  must  pay  import  duties  and  tax  required  of 

manufacturer  in  U.  S 1187 

§  1605.     Imported  cigars  must  be  properly  packed  and  stamped  before 

sale  1187 

§  1606.     Penalty  for  purchasing  or  receiving  unbranded  and  unstamped 

cigars   1188 

§  1607.     Washed  or  restored  revenue  stamp,  penalty  under  Act  August 

27,    1894 1188 

§  1608.  Oleomargarine  must  be  sold  in  wooden  or  paper  packages,  pen- 
alty for  violation 1190 

§  1609.     Putting  on  a  counterfeit  or  used  stamp,  etc.,  on  package  of 

tobacco,  a  felony 1191 

§  1610.     Wilfully  refusing  to  cancel  stamp   after  package   or  box  is 

emptied  is  a  crime 1191 

§  1611.  Taxes  in  addition  to  import  duties  on  tobacco  must  be  paid,  or 
officer  permitting  same  to  pass  without  compliance  Avith  pro- 
visions is  guilty,  of  crime 1192 

§  1612.  A  dealer  in  leaf  tobacco  who  wilfully  neglects  or  wilfully  re- 
fuses to  keep  books  as  required 1193 


Ixvi  Table  of  Contents 

PAGE 
§  1613.     Punishment  for  selling  or  ofifering  to  sell  snuff  or  manufactured 

tobacco  not  put  up  in  packages  and  stamped 1194 

§  1614.     Unlawful  to  purchase  or  secure  tobacco  for  sale  not  branded 

or    marked,    punishment 1194 

§  1615.     Manufacturing  tobacco  for  another  on  comniision,  tax  must  be 

paid  by  the  actual  maker,  fraud,  punishment 1195 

§  1616.  Selling  or  removing  payment  of  the  stamp  denoting  tax  un- 
lawful     1195 

§  1617.     Removing  from  any  manufactory  any  tobacco  or  snuff  without 

being  stamped  in  proper  packages 1196 

§  1618.     The  kind  of  brand  that  must  be  put  upon  package  of  flour, 

penalty  for  violation 1197 

§  1619.     Falsely  marking  uubranded  packages  of  Hour,  penalty 1197 

§  1620.     Failure  to  label  packages  of  flour,  penalty 1198 

§  1621.  Tax  stamps  must  be  put  upon  barrels  or  packages,  penalty.  . .  .1198 
§  1622.     Imported  mixed  flour  marked,  etc.,  and  stamped  as  such  flour 

made  and  packed  in  U.  S.  penalty  for  violation 1199 

§  1623.     Stamp  of  empty  package  of  mixed  flour  must   be   destroyed, 

penalty    1200 

§  1624.     Purchasing  or  securing  for  sale  flour  upon  which  tax  has  not 

been    paid,    penalty 1200 

§  1625.     Penalty  for  subsequent  offenses  is  imprisonment 1200 

FILLED   CHEESE. 

§1626.     All  retail  and  wholesale  dealers  must  display  sign,  penalty ..  1201 

§1627.     Stamp  on  empty  packages  of  filled  cheese  must  be  destroyed.  1201 

§  1628.     Manufacturer   of   filled   cheese   shall   post    notice   on    i)ackage, 

penalty    1201 

§  1G29.     Retailers    in    filled    cheese    shall    sell    from    original    stamped 

packages,  violation 1202 

§1630.     Manufacturer    of    filled    cheese,    regulations    and    penalties.  .  .1203 

§  16.il.     Manufacturer  of  oleomargarine   defrauding   or  attempting   to 

defraud    Gov  't.    of   tax 1204 

§  1632.  Wilfully  removing  or  defacing  stamps  on  oleomargarine,  mis- 
demeanor    1'"'J'4 

§  1633.  Stamps  on  emptied  packages  of  oleomargarine  nuist  be  des- 
troyed, penalty  for  violation   1204 

8  1634.     Custonus    ofliier    i)ermilting    imported    oleomargarine    to    pass 

out  of  his  po.'isession,  etc.,  without  complying  with  law....  1205 

§  1635.     Notice  by  manufacturer  of  oleonuirgarine  mu.st   be  posted  on 

every    package     1 206 

§1636.     Violating  the  act  of  Aug.  2,  1886,  relating  to  oleomargarine.  1207 

§1637.     JJctinition    of    "butter"    and    aflixing    jienalties    Act    May    i), 

1902    1207 

8  1638.     Renovated    butter   how   marked 1211 


Table  of  Contents  Ixvii 

PAGE 
§  1639.     Wholesale    dealer    in    oleomargarine    must   keep   book    as    re- 
quired by  commission  of  internal   revenue 1212 

FOOD   AND   DRUGS. 

§  1640.     Food  and  drugs  act  of  June  30,  1906,  not  affected  by  opium 

act    1212 

§1641.     Agents   appointed  to   enforce   law  regarding   opium 1213 

§  1642.     Penalty  for  violation 1213 

§  1643.     Only  registered  persoji  can  possess  drugs 1213 

§  1644.     Special  taxes  imposed  by  this  Act   not   inconsistent   with   re- 
vised  statutes    1214 

§  1645.     Provisions  of  this  Act  not  to  apply  to  medicinal  preparations.  1214 
§  1646.     Collector  to  furnish  certified  copies  of  statements  to  be  filed 

in  his   office 1215 

§  1647.     Unlawful  for  any  person  to  ship  or  deliver  drugs  without  being 

registered    and    paying    tax 1216 

§  1648.     Must  render  true  and  correct  statement  to  collector  concern- 
ing drugs    1217 

§1649.     "Written  order  from  physician,  etc.,  required  to  obtain  drugs.  1217 
§  1650.     Any  person  must  pay  tax  to  manufacture,  import,  etc.,  opium 

and    coca    leaves 1221 

§  1651.     General  revenue  act  July  20,  1868,  fraudulent  gauging,  etc.  .  .1222 

CHAPTER  LXXX. 

The  Slave  Trade  and  Peonage.     Penal  Code,  Act  March  4,  1909. 

§1654.     Confining    or    detaining    slaves    on    board    vessel 1223 

§  1655.     Seizing   slaves   on   foreign   shores 1224 

§  1656.     Bringing   slaves   into   the   United    States 1224 

§  1657.     Equipping  vessels  for  slave  trade 1224 

§  1658.     Transporting  persons  to  be  held  as  slaves 1225 

§1659.     Hovering  on  coast  with   slaves  on  board 1225 

§  1660.     Serving  in  vessels  engaged  in  the  slave  trade 1225 

§  1661.  Eeceiving  or  carrying  away  any  person  to  be  sold  or  held  as 

a   slave    1225 

§  1662.     Equipping,  etc.,  vessel  for  slave  trade 1226 

§  1663.     Penalty  on  persons  building,  equipping,  etc 1226 

§  1664.     Forfeiture    of    vessel    transporting    slaves 1227 

§  1665.     Eeceiving  persons  on  board  to  be  sold  as  slaves 1227 

§  1666.     Vessels  found  hovering  on  coast 1227 

§  1667.     Forfeiture  of  interest  in  vessels  transporting  slaves 1228 

§  1668.     Seizure  of  vessels  engaged  in  the  slave  trade 1228 

§1669.     Proceeds    of    condemned    vessels,    how    distributed 1228 

§  1670.     Disposal  of  persons  found  on  board  seized  vessel 1229 

§  1671.     Apprehension    of    officers    and    crew .1229 


Ixviii  Table  or  Contents 

PAGE 

§  1672.     E^moval  of  persons  delivered  from  seized  vessels 1229 

§  1673.     To  -what  port  captured  vessel  sent 1229 

§  1674.     When  owners  of  foreign  vessels  shall  give  bond 1230 

§  1675.     Instructions  to  commanders  of  armed  vessels 1230 

§  1676.     Kidnapping    1230 

§  1677.     Holding  or  returning  persons  to  peonage 1231 

§  1678.     Obstructing  enforcement  of  preceding  section 1231 

§1679.     Bringing  kidnapped  persons  into  United  States 1231 

SEARCH   WAREANrS. 

§  1682.     Search  warrant  by  whom  issued 1232 

§  1683.     Grounds   for   issuing    1232 

§  1684.     Must    issue    upon    probable    cause 1233 

§  1685.     Ofiicer   must   require   affidavits 1233 

§  1686.     Affidavits  must  set  forth  grounds  for 1233 

§  1687.     If  grounds  set  forth  are  sufficient  officer  must  issue 1233 

§  1688.     No  one  can  serve  warrant  unless  directed  in  instrument 1234 

§  1689.     Officer  may  break  doors  and  windows  in  serving 1234 

§1690.     May  break  outer  and  inner  door  to  liberate  assistant 1234 

§  1691.  Judge  must  insert  that  service  of  warrant  be  served  in  day 

time 1234 

§  1692.     Warrant  must  be  returned  in  ten   days 1235 

§  1693.     When  property  is  taken  copy  of  warrant  must  be  given 1235 

§1694.  Warrant  must  be  returned  forthwith  with  written  inventory.  .1235 

§1695.     Judge  or  Com'er  must  deliver  copy  of  inventory 1235 

§  1696.     If  things  alleged  are  controverted  must  take  testimony 1236 

§  1697.  If  property  is  not  same  described  in  warrant  must  be  restored.1236 

§  1698.     All  papers  must  be  filed  with  the   clerk 1236 

CHAPTER  LXXXI. 

§  1699.     Punishment  for  resisting  issuance  and  service 1236 

§  1700.     Perjury  to  make  fake  aflidavit  and  oath 1237 

§  1701.     Punishment   for   maliciously   procuring 1237 

§  1702.     Punishment  of  officer  exceeding  authority 1237 

§  1703.     As    to    aiding    foreign    government 1237 

§1704.     Existing   provision   for   search   warrants    not   affected 1237 

CHAPTER  LXXXII. 

Piracy  and  oflier  Offenses  upon  the  Seas.     Penal  Code,  Act  March  4,  1909. 

§  1707.     Piracy  under  the  law  of  nations 1238 

§  1708.     Maltreatment  of  crew  by  officers  of  vessels 1238 

§  1709.     Inciting  revolt  or  mutiny  on  shipboard 1239 

§  1710.     Revolt    and    mutiny    on    shipboard 1239 

§1711.     Seaman   laying  violent  hands  on  his  commander 1240 

§  1712.     Abandonment  of  mariners  in  foreign  ports 1240 


Table  of  Contents  Ixix 

PAGE 

§  1713.  Conspiracy  to  cast  away  vessel 1240 

§  1714.  Plundering  vessel  in  distress,  etc 1241 

§  1715.  Attacking  vessel  with  intent  to  plunder 1241 

§  1716.  Breaking  and  entering  vessel,  etc 1241 

§  1717.  Owner  destroying  vessel  at  sea 1242 

§  1718.  Other  person   destroying  or  attempting  to   destroy  vessel  at 

sea    1242 

§  1719.  Robbery  on  shore  by  crew  of  piratical  vessel 1242 

§  1720.  Arming  vessel  to  cruise  against  citizens  of  the  United  States.  1242 

§  1721.  Piracy  under  color  of  a  foreign  commission 1243 

§  1722.  Piracy  by  subjects  or  citizens  of  a  foreign  state 1243 

§  1723.  Eunning  away  with  or  yielding  up  vessel  or  cargo 1243 

§  1724.  Confederating,  etc.,  with  pirates 1244 

§  1725.  Sale  of  arms  and  intoxicants  forbidden  in  Pacific  Islands.  . .  .1244 

§1726.  Offenses  under  preceding  section  deemed  on  high  seas 1245 

§  1727.  "  Vessels  of  the  United  States ' '  defined 1245 

CHAPTER  LXXXIII. 

TERRITORIES. 

Certain  Offenses  in  the  Territories.     Penal  Code,  Act  March  4,  1909. 

§1730.     Places  within  which  sections  of  this  chapter  shall  apply 1246 

§1731.     Circulation   of   obscene   literature;    promoting   abortion 1246 

§  1732.     Polygamy    .' 1247 

§  1733.     Unlawful  cohabitation   1247 

§  1734.     Joinder  of  courts 1247 

§  1735.     Adultery 1247 

§  1736.     Incest     1248 

§  1737.   .Fornication  1248 

§1738.     Certificates  of  marriage;  penalty  for  failure  to  record 1248 

§  1739.     Prize  fights,  bull  fights,  etc 1249 

§  1740.     Definition   of   ' '  Pugilistic   encounter. " 1249 

§  1741.     Train  Robberies  in  Territories,  etc 1249 

CHAPTER  LXXXIV. 

TELBGEAPHS    AND    RADIOS. 

§  1744.     Refusal  by  telegraph  under  Act  Feb.  27,  1877,   to  transmit 

messages  subject  to  penalty 1251 

§  1745.  Railroads  and  telegraph  companies  to  which  Government  has 
granted  a  subsidy  are  required  to  maintain  and  operate 
telegraph   lines    1252 

§  1746.  Railroad  and  telegraph  companies  refusing  under  Sec.  1,  Act 
Aug.  7,  1888,  to  maintain  connecting  lines  may  apply  to 
interstate  commerce  commission  for  relief 1252 


Ixx  Table  of  Contents 

PAGE 

§  1747.  Eailroads  and  telegraph  companies  operated  under  Sec.  1, 
Act  Aug.  7,  1888,  shall  allow  other  telegraph  companies  to 
connect  with  them    1253 

§  1748.  Punishment  of  otficers  and  agents  of  railroads  and  telegraph 
companies  failing  to  comply  with  provisions  of  Act  Aug. 
7,   1888    1254 

§  1749.     No  use  can  be  made  of  an  apparatus  for  radio  communication 

between  states  without  license ;   penalty 1255 

§  1750.  Unlawful  to  employ  unlicensed  person  to  operate  radio  ap- 
paratus     1256 

CHAPTER  LXXXV. 

VIRUS    AND    SERUMS. 

§  1753.     No  person  shall  sell  or  exchange  from   one   State  to  another 

virus  or  other  serumsj  etc 1 25:; 

§  1754.     Surgeon   General   of   Army   and   Navy   and    Marine    Hospital 

Service  shall  make  regulations  to  whom  license  is  granted.  1259 

§  1755.     No  person  shall  interfere  with  treasury  department  under  this 

Act   1260 

§  1756.  No  person  shall  falsely  label  or  make  any  package  or  con- 
tainer of  virus  or  serum 1260 

§1757.     Violations   of   provisions   of   drug   act   July    1,    1902;    general 

provisions    1260 

§  1758.     Act  Mar.  4,  1913,  selling  any  worthless  viruses  for  treatment 

of  animals  J   penalty  for  violation 1260 

CHAPTER  LXXXVI. 

PERMANENT    W^\R    LEGISLATION. 

§  1761.  During  a  war,  U.  S.  is  not  engaged  in,  unlawful  to  import 
from  such  country;  unlawful  to  give  advantage  to  any  per- 
son, etc.,  and  for  vessel  to  depart  without  clearance;  pen- 
alty     1264 

§1762.     Registration  as  soldier;   punishnu>nt  for  failure  to  do  so....  1267 
§1763.     Prosecuting  bawdy  hou.sc  at  or  near  military  camps;   punish- 
ment     1 268 

§1764.     Punislinient  making  false  statement  or  false  registration ....  1268 

§1765.     Trading  with  the  Enemy  Act;  punishment;   provisions 1270 

8  17G6.     Punishment  for  injuring,  destroying,  etc.,  war  m.iterinl,  prom 

JHCH,  or  utilities;   speciticd  acta 1270 

§  1767.     Puni.shment   for  obstructing,  etc.,   United   States   or   associate 

nation  in  carrying  on  the  war;  specified  acts 1271 

§  1768.     Making  false  statement  in  affidavit  guilty  of  perjury 1271 

8  17C0.  Selective  Service  Act,  failing  to  perform  duties  under;  pun- 
ishment     1273 


Table  of  Contents  Ixxi 

PAGE 

§  ]770.     Carriers  under  Federal  control;  violation,  punishment 1274 

§  1771.     Title  XII,  army  emergency  increase,  selective  draft,  amended 

by  Act  May  16,  1918,  Act  of  June  15,  1917 1275 

§  1772.     Food  control 1276 

§  1773.     Former  punishments  for  specified  offenses  not  repealed 1277 

§1774.     Violations  of  War  Finance  Act  April  5,  1918;  punishment.  .1277 

CHAPTER  LXXXVII. 

repealing   provisions. 

Penal  Code,  Act  March  4,  1909. 

§  1777.  Sections,  acts,  and  parts  of  acts  repealed 1277 

§  1778.  Accrued  rights,  etc.,  not  affected 1291 

§  1779.  Prosecutions   and   punishments    1292 

§  1780.  Acts   of   limitation    1292 

§  1781.  Date  this  act  shall  be  effective 1292 


CRIMINAL  LAW 


PART  ONE 


CHAPTER  I 


THE  SOUECE  OF  OUR  CEIMINAL  LAWS 


§    1. 

§    2.  Laws  of  the  parent  country. 

§    3.  Original  settlers. 

§  4.  The  derivation  of  our  criminal 
law. 

§  5.  Under  the  constitution  com- 
mon law  may  be  resorted  to 
for  definition  and  descrip- 
tion of  crime. 

§  6.  No  authority  for  common  law 
jurisdiction  in  the  United 
States  courts. 

§    7.  Fundamental  law  of  the  land. 

§  8.  Extracts  from  the  Constitu- 
tion. 

§    9.  Prohibitions  to  the  states. 

§  10.  Bills  of  attainder. 

§  11.  Includes  bills  of  pains  and 
penalties. 


§  12.  Ex  post  facto  law. 

§  13.  Further  instances  and  expla- 
nations. 

§  14.  Of  law  which  alter  the  rules 
of  evidence. 

§  15.  Under  the  provision  of  the 
Texas  statute. 

§  16.  Bill  of  rights. 

§  17.  Illustrations. 

§  18.  Divisions  of  government. 

§  19.  Legislatures  are  conducted  un- 
der their  own  rules. 

§  20.  Distinction  between  judicial 
and  legislative  powers. 

§  21.  Judiciary  should  be  dispas- 
sionate. 

§  22.  Court  made  laws. 


§  1.  We  come  now  to  discuss  those  general  principles 
which  are  the  foundation  of  our  jurisprudence.  In  dis- 
cussing these  principles  we  shall  be  confined  to  those 
rules  which  relate  to  public  wrongs,  or  in  other  words, 
those  rules  which  relate  to  criminal  law  as  distinguished 
from  civil  law. 

Criminal  law  may  be  defined  as  those  prohibitions  and 
commands  the  violations  of  which  is  deemed  injurious  to 
c.  L.— 1  1 


2  Ckiminal  Law 

the  public,  and  which  are  punished  by  the  state  in  its  own 
name.^ 

§  2.  Laws  of  parent  country.  Immigrants  to  a  new 
countiy  being  uninhabited  at  the  time  of  immigration, 
cany  with  tliem  tlie  laws  of  the  eountiy  from  which  they 
emigrated. 

But  where  a  country  comes  under  the  dominion  of  a 
conqueror,  the  laws  existing  at  the  time  of  the  conquest, 
remain  the  laws  of  the  conquered  country  until  the  con- 
queror elects  to  change  them.  The  fact  that  a  govern- 
ment comes  under  the  control  of  another  power,  does  not 
of  itself  change  the  system  of  laws.  The  same  applies  to 
a  country  ceded  to  another,  unless  in  the  articles  of  ces- 
sion another  provision  is  made.  So  in  the  case  of  revolu- 
tion, the  laws  remain  the  same.^ 

§  3.  Original  settlers.  Thus  the  original  settlers  of  this 
country,  being  subjects  of  the  British  Empire,  brought 
with  them  the  laws,  customs  and  usages  of  that  govern- 
ment, which  step  by  step,  became  their  rules  of  action. 
All  the  rights  which  had  been  wrested  from  unwilling 
power  by  the  Petition  of  Rights,  and  which  had  been 
moulded  into  the  base  of  English  liberty,  they  retained. 
All  the  privileges  of  the  mother  country  are  still  guaran- 
teed to  every  citizen,  and  except  where  the  connnon  law 
has  been  changed  or  abrogated  by  the  constitution  and  the 
laws  of  the  United  States  and  of  the  several  states,  it  is 
still  the  rule  to  measure  the  right  of  the  citizen. 

§4.  The  derivation  of  our  criminal  law.  Oni-  system 
ol"  riinrin.'il  jurisprudence  is  in  great  part  derived  from 
the  common  law  of  England.  This  compilation  of  reason, 
usage  and  custom,  and  experience  of  many  ceiiturios,  con- 

1—3  Grcenlcaf  Ev.  i;  4  Black-  570;  Lutcr  v.  Hunter,  .30  Tex.  688; 
Btonc,  5.  Canfield  v.  Hunter,  30  Tex.  712-13. 

2— U.  R.  V.  Power,  11  How.  U.  S. 


The  Source  of  Our  Criminal  Laws  3 

stitutes  the  fundamental  principles  of  American  criminal 
law,  modified  and  enlarged  to  suit  the  condition  of  this 
country.  The  common  law  as  understood  in  England 
consisted  in  the  unwritten  laws  of  the  kingdom.  They 
were  such  rules  as  had  found  expression  in  the  usages 
and  customs  of  the  people,  and  such  as  had  been  definitely 
settled  by  judicial  opinion,  as  also  all  those  niles  which 
in  the  process  of  time  had  by  common  consent,  been  en- 
grafted into  the  law,  from  considerations  of  intrinsic 
fairness  and  justice.  The  common  law  as  adopted  in  the 
courts  of  America,  are  derived  from  the  acts  of  Parlia- 
ment, in  addition  to  the  common  law  as  administered  in 
England,  prior  to  the  immigration  of  our  ancestors  to 
this  country. 

§  5.  Under  the  constitution  common  law  may  be  re- 
sorted to  for  definition  and  description  of  crimes.  When 
the  people  of  America  severed  their  connection  with  the 
British  Crown,  they  entered  into  and  founded  an  inde- 
pendent government,  and  adopted  a  written  constitution. 
Under  the  judicial  construction  placed  upon  this  instru- 
ment, it  is  held  that  common  law  crimes,  could  not  be 
prosecuted,  for  the  want  of  jurisdiction  in  the  courts  of 
the  United  States,  unless  such  offenses  had  been  made 
penal,  by  express  act  of  congress.  But  where  congress 
has  attached  a  penalty  to  any  offense  criminal  by  common 
law,  that  law  may  be  resorted  to  for  definition,  descrip- 
tion, and  procedure.  It  is  definitely  and  pennanently 
settled  that  all  crimes  against  the  laws  of  the  United 
States  must  be  created  by  express  enactment  of  con- 
gress, that  under  the  constitution  no  jurisdiction  can  be 
extended  by  implication  over  common  law  offenses.  This 
construction  of  the  constitution  does  not  affect  the 
powers  of  the  several  states,  in  the  absence  of  prohibi- 
tions and  restrictions  either  in  their  constitutions  or  laws, 
from  prosecution  of  such  offenses  under  the  common  law.' 

3— Kent's    Com.    332;    IT.    S.    v.       Hudson,    1    Wheat.    415;    II.    S.    v. 


4  Ceiminal  Law 

§  6.  No  authority  for  common  law  jurisdiction  in  the 
United  States  courts.  There  is  no  express  declaration 
in  the  constitution  of  the  United  States  either  affiraiing 
or  denying  the  right  to  assume  jurisdiction  over  common 
law  offenses.  The  rule  is  now  definitely  settled  upon  a 
series  of  uniform  decisions,  holding  that  no  jurisdiction 
can  attach,  yet  in  the  early  years  of  our  judicial  history, 
this  rule  was  strenuously  denied  in  the  circuit  courts  of 
the  United  States.*  As  to  crimes  committed  against  the 
United  States,  these  decisions  establisli  that  under  the 
constitution,  there  is  no  such  implied  authority  as  would 
confer  jurisdiction  upon  the  circuit  courts.  It  is  also  held 
in  effect  tliat  when  the  constitution  extends  a  grant  of 
power,  it  by  implication  authorizes  the  use  of  means 
necessary  to  enforce  it,  and  tliat  the  means  may  be 
gathered  from  the  common  law.  So,  also,  in  criminal 
cases  which  arise  in  tlie  Maritime  jurisdiction  of  the 
United  States. 

Crimes  against  the  United  States  can  be  created  by  act 
of  congress  only,  expressly  providing  for  them,  and  the 
heads  of  departments  by  the  promulgation  of  rules  and 
reguhitioiis,  have  no  power  to  create  a  penal  oiTense  nor 
to  change  or  modify  an  offense  already  created  by  con- 
gress.^ 

§  7.  Fundamental  law  of  the  land.  The  constitution 
of  the  United  Slates  is  the  fnndamental  law  of  the  land. 
It  is  a  grant  and  delegation  of  powers  by  the  people  to  the 
government.  The  general  government  may  act  within 
the  powers  expressed  in  the  constitution  and  which  by 
reasonable  intendment  are  granted  by  implication.    This 

narney,     5     Blnclif.     294;      U.     S.  Kent's  Coin.,   Vol.   1,  pp.   332,   340. 

V.   WilHon,  3   Blnrlif.   435;    U.   S.   v.  2  Kent  Com.  SoO. 

Wiirrall,  2  Dallas  384;  U.  S.  V.  Cool-  5— Morrcll    v.    .lones,    IfiG    U.    S. 

age,  1  GalliHon  488.  lOfi,    27    Law    Ed.    267;    U.    S.    v. 

4— U.  S.  V.  Warrall,  2  Dallas  381;  Katon,  144  U.  S.  671,  36  Law  Ed, 

U.  8.  V.  Coolagc,  1  Galllson  488;  U.  591;  Caha  v.  U.  S.,  152  U.  S.  209, 

H.    V.   Wilson,   3    lilachf.    435.      See  28  Law  Ed.  415. 


The  Source  of  Our  Criminal  Laws  5 

instrument  places  certain  restrictions  and  prohibitions 
upon  the  state  governments.  Powers  not  expressed  in 
the  constitution  and  which  by  implication  is  not  pro- 
hibited to  the  states,  are  reserved  to  the  states  respec- 
tively or  to  the  people.  Hence  the  states  are  endowed 
with  absolute  sovereignty  in  all  things  save  those  dele- 
gated to  the  United  States  and  which  by  the  constitution 
is  prohibited  to  them.  In  the  language  of  Chief  Justice 
Marshall,  ''The  people  of  the  United  States  have  mani- 
fested a  determination  to  shield  themselves  and  their 
property.  The  restrictions  on  the  legislative  power  of 
the  states  are  obviously  founded  in  this  sentiment;  and 
the  constitution  contains  what  may  be  deemed  a  bill  of 
rights  for  the  people  to  each  state.^ 

§8.  Extracts  from  the  constitution.  (1) — No  state 
shall  enter  into  any  treaty,  alliance,  or  confederation; 
grant  letters  of  marque  and  reprisal;  coin  money; 
emit  bills  of  credit;  make  anything  but  gold  and 
silver  coin  a  tender  in  the  payments  of  debts;  pass  any 
bill  of  attainder  or  ex  post  facto  law  or  law  impairing 
the  obligation  of  contracts  or  grant  any  title  of  nobility. 
(2) — No  state  without  the  consent  of  congress  can  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  produce  of  all  duties  and  imports  laid 
by  any  state  on  imports  or  exports,  shall  be  for  the  use 
of  the  Treasury  of  the  United  States:  all  such  laws  shall 
be  subject  to  the  revision  and  control  of  congress.  (3) — 
No  state  without  the  consent  of  congress,  can  lay  any 
duty  on  tonnage,  keep  troops  or  ships  of  war,  in  times  of 
peace  enter  into  any  agreement  or  compact  with  any 
other  state,  or  wdth  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger,  as 
will  not  admit  of  delay.''' 

6— Flecher  v.  Peck,  6  Craneh.  137. 
7 — Constitution     United     States, 
Art.  1,  sec.  10,  clauses  1-3. 


6  Criminal  Law 

§  9.  Prohibitions  to  the  states.  So  the  prohibitions  to 
the  states  contained  in  clause  "  1 "  section  "  10, "  art.  * '  1 " 
in  the  constitution  are  absolute.  Under  no  conditions 
can  the  states  act  within  these  restrictions.  Nor  can 
the  congress  of  the  United  States  extend  the  right  to  the 
states.  The  restrictions  contained  in  clauses  "2"  antl 
"3,"  are  however  limited  restrictions  which  depend 
upon  the  congress,  in  granting  consent,  except  in  case 
a  state  is  actually  invaded  or  the  danger  is  so  imminent 
as  not  to  admit  of  delay,  in  securing  the  consent  of  con- 
gress, to  repel  the  invasion  or  in  defending  the  danger. 
This  is  an  express  adoption  of  the  natural  law  of  self 
defense  transferred  from  the  individual  to  the  state. 
Section  ''8,"  art.  "1"  of  the  constitution  of  the  United 
States  specifically  delegates  to  congress  certain  powers, 
some  of  which  include  and  are  identical  with  tlic  powers 
prohibited  to  the  states.  Many  of  these  prohibitions  to 
the  states  do  not  appear  to  be  expressly  delegated  to  the 
general  government.  The  clause,  "No  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed,"  and  "No  title  of 
nobility  shall  be  granted  by  the  United  States,"  are 
limitations  upon  the  power  of  congress  and  prohibitions 
to  the  states.^  Neither  the  general  government  through 
congress,  nor  a  state  through  its  legislature  can  pass  a 
bill  of  attainder  or  ex  post  facto  law,  or  create  any 
titles  of  nobility.  The  founders  of  the  constitution  in 
order  to  forever  proliibit  the  passage  of  any  bill  of  at- 
tainder or  ex  post  facto  law,  and  to  ])rotect  themselves 
from  a  repetition  of  such  cruel  and  unjust  laws,  as  had 
been  passed  by  the  English  Parliament,  not  only  prohib- 
ited to  the  general  government,  but  also  took  from  the 
states,  such  jjower.  So  also  in  order  to  maintain  equal 
rights  to  all  under  the  law,  and  to  discountenance  castes, 
and  to  check  the  growth  of  special  privileges  to  one  cit- 
izen  to  the  exclusion   of  anothei",   tiie  constitution  pro- 

8 — U.  8.  Constitution,  Art.  1,  hcch.       Com.  v.   PliilipM,   11   Tick.  L'8;   Com. 
9-10;    Hcc   Ex   parte   Gall  and   .33.3;        v.  Edwards,  9  Dana  447. 


The  Soukce  of  Ouk  Criminal  Laws  7 

liibits  both  the  national  and  state  governments  from  cre- 
ating titles  of  nobility. 

§  10.  Bills  of  attainder.  A  bill  of  attainder  is  a  legis- 
lative act  which  inflicts  punishment  without  a  judicial 
trial.  There  are  two  classes  of  these  bills  and  are  dis- 
tinguishable by  the  extent  of  the  punishment  inflicted. 
Where  the  punishment  was  less  than  death  it  was  temied 
a  bill  of  pains  and  penalties.  The  distinctive  features 
of  these  laws  consists  in  the  legislative  act  of  conviction 
without  giving  the  citizen  the  right  of  trial  in  the  judi- 
cial tribunals.  Such  laws  had  been  frequently  passed  by 
the  English  Parliament  prior  to  the  adoption  of  the  con- 
stitution of  the  United  States.  Sometimes  Parliament 
would  declare  an  act  to  be  treason,  which  under  the  law 
was  not  treason.  It  would  authorize  a  conviction  upon 
the  evidence  of  one  witness,  when  the  existing  law  re- 
quires two;  would  receive  evidence  without  the  admin- 
istration of  an  oath,  and  w^ould  inflict  greater  punish- 
ment than  is  permitted  by  law.® 

§  11.  Includes  bills  of  pains  and  penalties.  A  bill  of 
attainder,  against  which  the  constitutional  prohibition 
extends,  includes  bills  of  Pains  and  Penalties.  It  is  a 
legislative  conviction  without  a  trial  in  court.  The  leg- 
islature usurps  the  power  and  the  authority  of  the  judge 
and  the  jury,  determining  the  guilt  of  the  party  without 
evidence;  in  short,  convicts  and  inflicts  punishment  by 
legislative  will.  In  the  language  of  Judge  Story,  "Bills 
of  this  kind  have  been  most  usually  passed  in  England,  in 
times  of  rebellion  or  gross  subserviency  to  the  Crown  or 
violent  political  excitement;  periods  in  which  all  nations 
are  most  liable  (as  well  the  free  as  the  enslaved)  to  for 

9 — Cummings  v.  State  of  Missou-  339;  Hawker  v.  New  York,  170  U. 
ri  4  Wall.  277;  see  authorities  cited.  S.  189;  see  U.  S.  v.  Hall,  2  Wash. 
Ex  parte  Garland,  4  Wall.   (U.  S.)        (U.  S.)  366. 


8  Ceiminal  Law 

get  their  duties  and  to  trample  upon  the  rights  and  lib- 
erties of  others. "  ^° 

§  12.  Ex  post  facto  law.  An  ex  post  facto  law  is  de- 
fined to  be  one,  which  imposes  a  punishment  for  an  act 
which  is  not  punishable  at  the  time  it  was  committed; 
or  imposes  additional  punishment  to  that  then  pre- 
scribed; or  which  increases  the  punishment  of  an  act 
then  penal ;  which  changes  the  rule  of  evidence  by  which 
less  or  different  testimony  is  sufficient,  than  was  pre- 
viously required.  A  law  which  requires  the  oath  of  an 
attorney,  affecting  his  past  conduct,  or  a  priest  to  per- 
form the  duties  of  his  office,  or  a  teacher  to  teach  school, 
is  an  ex  post  facto  law  and  void.^^ 

The  deprivation  of  a  right,  as  a  test  or  qualification, 
to  engage  in  a  profession  or  lawful  pursuit,  is  a  punish- 
ment within  the  prohibitions  of  the  constitution.^'*  Ac- 
cording to  Judge  Fields:  ''The  theory  upon  which  our 
political  institutions  rest,  is,  that  all  men  have  certain 
inalienable  rights;  that  among  these  are  life,  liberty  and 
the  pursuit  of  happiness ;  and  in  the  pursuit  of  happiness, 
all  honors,  all  positions,  are  alike  to  eveiy  one,  and  that 
in  the  protection  of  these  rights,  are  equal  before  the 
law.  Any  deprivation  or  suspension  of  these  rights,  for 
past  conduct,  is  punishment  and  can  in  no  wise  be  de- 
fined."" 

§  13.  Further  instances  and  explanations.  A  statute 
transferring  the  power  of  assessing  punishment  from  the 
judge  to  the  jury,  does  not  come  within  the  inhibitions 
of  the  constitution.^*     Nor  does  a  statute  allowing  the 

10— story's    Constitutions,    1344;  1:5— Ex    parte    Garlaiul,    4    Wall. 

Cuniniings  v.  The  State  of  Missouri,  400,   71   U.   S.   366;    Gray   v.   State 

4    Wall.    277;    Gains   v.    Buford,    I  of  Conn.,  159  U.  S.   74;   Foster  v. 

Dana   510.  i'olico  Coininissioncrs,  102  Cal.  483; 

11— CumminKH    v.    State    of    Uh-  V.  S.  v.  Hall,  2  Wash.   (U.  S.)   366, 

souri,  4  Wall.  277.  14— Holt    v.    State,    2    Tex.    33; 

12 — Same  authority  as  note  11.  Dawsou  v.  State,  6  Tex.  347. 


The  Souece  of  Our  Criminal  Laws  9 

amendment  of  indictments  where  the  defendant's  name 
is  inserted  in  an  indictment  then  pending  for  trial."  It  is 
ex  post  facto  for  the  legislature  to  enact  a  statute  author- 
izing the  trial  of  offenses  barred  by  the  statute  of  lim- 
itations.^^ Nor  can  a  conviction  be  sustained  under  a  law 
changing  the  evidence  necessary  to  authorize  a  convic- 
tion, from  that  necessary  at  the  time  of  the  commission 
of  the  offense."  A  statute  which  requires  or  authorizes 
in  the  alternative,  the  infliction  of  punishment,  as  by 
death  or  by  confinement  in  the  penitentiary,  does  not 
come  within  the  inhibitions  of  the  constitution."  If  how- 
ever the  punishment  is  increased  it  is  ex  post  facto  law, 
but  if  the  punishment  of  the  new  statute  ameliorates  the 
old  one  it  then  does  not  come  within  the  prohibitions." 

§  14.  Of  laws  which  alter  the  rules  of  evidence.    It  is 

well  settled  that  every  law  which  alters  the  rules  of  evi- 
dence, or  admits  less,  or  different  evidence,  upon  the 
trial  of  an  offense,  than  was  permitted  at  the  time 
that  it  was  committed,  is  ex  post  facto  and  void.^° 
But  those  changes  only  which  affect,  or  modify,  the  pro- 
cedure in  the  rules  and  the  application  of  evidence,  is 
held  not  to  be  ex  post  facto.^^  Thus,  the  supreme  court 
of  the  United  States  in  a  recent  case  declares  that  a 
statute  which  enlarges  the  class  of  persons,  who  may  be 
competent  witnesses,  is  not  ex  post  facto.  The  lan- 
guage of  the  court  is:    "That  it  does  not  attach  crim- 

15 — State    V.    Manning,    14    Tex.  See  notes  1,  2  and  3,  Wilson's  Crim- 

402.  inal  Statutes  of  Texas,  1896;  Hunt- 

16— State  V.  Sneed,  25  Tex.  Supp.  ing  v.  People,  22  N.  Y.  105 ;  Shep- 

66.  ard  v.  People,  25  N.  Y.  406;  Eatsky 

17— Calleway    v.    State,    7    Tex.  v.  People,  29  N.  Y.  124;  People  v, 

App.   585;    Murry  v.   State,   1   Tex.  Hayes,  140  N.  Y.  484;  35  N.  E.  951; 

App.  417;  Velasce  v.  State,  9  Tex.  Strong   v.    State,    1    Blackl.    (Ind.) 

App.  76;  Johnson  v.  State,  16  Tex.  193. 
App.   156.  20 — Cummings   v.    State    of   Mis- 

18— McEnturf  v.    State,   20   Tex.  souri,  4  Wall.  277. 
App.  335.  21— Veal   v.    State,    8    Tex.    App. 

19— Art.  15  Penal  Code  of  Texas.  424. 


10  Criminal  Law 

inality  to  any  act  previously  done,  aggravate  past  crimes 
or  increase  punisliment  therefor,  nor  does  it  alter  the 
degree,  or  lessen  the  amount  or  measure  of  proof  neces- 
saiy  for  conviction.  Removing  restrictions  upon  the 
competency  of  certain  class  of  persons  as  witnesses,  re- 
lates to  the  mode  of  procedure  only,  in  which  no  one  can 
be  said  to  have  a  vested  right,  and  which  the  state  on 
grounds  of  public  policy  may  regulate  at  pleasure.  "^^ 

If  the  effect  of  a  law  is  to  increase  the  chance  of  con- 
viction upon  reason  there  can  be  no  ground  to  exclude  it 
from  the  category  of  ex  post  facto  laws,  notwithstanding 
it  may  be  in  the  nature  of  procedure.  When  a  person 
commits  a  crime,  he  is  entitled  to  all  the  rights  he  pos- 
sessed at  the  time  of  its  commission.  While  it  is  per- 
fectly legitimate  for  the  legislature  to  enact  laws  facil- 
itating or  regulating  the  procedure  in  any  cause,  yet  if 
the  change  in  effect  is  to  increase  the  chances  of  convic- 
tion, by  allowing  a  witness  or  class  of  persons  to  testify, 
who  by  reason  of  the  relation  sustained  at  the  time  of 
the  committal  of  the  offense,  toward  the  defendant,  in- 
creases the  probability  of  conviction,  is  ex  post  facto, 
and  retroactive.  Thus  in  the  case  of  husband  and  wife 
the  effect  of  the  testimony  of  the  wife  against  the  hus- 
band, owing  to  their  relations,  would  increase  the  chance 
of  conviction,  and  to  that  extent  change  a  vested  right 
of  the  husband.  So  in  the  case  of  privileged  communi- 
cations between  client  and  attorney.  In  these  cases  the 
law  protects  the  defendant  from  the  disclosures  of  these 
classes  of  witnesses.  It  is  a  vested  right,  and  an  admis- 
sion to  testify  would  take  from  him  a  veiy  material  right, 
because  it  would  increase  his  chances  of  punisliment.  So 
ag.-iiii,  ill  the  case  of  perjury,  to  niilliori'/c  a  conviction 
upon  the  evidence  of  one  witness,  would  be  ex  i)ost  facto. 
It  M'oiild  be  changing  the  amount  and  the  degree  of  evi- 

22— Laughlin    v.    Com.,    13    Bush 
261  :  Ilopt  V.  U.  8.,  110  U.  R.  574. 


The  Source  of  Our  Criminal  Laws  11 

dence  necessary  to  a  conviction.  So  to  allow  the  testi- 
mony of  a  convict,  who  at  the  time  of  the  commission 
of  a  crime  and  at  the  time  of  the  trial  was  an  incompe- 
tent witness.  To  allow  an  accomplice  to  testify  upo?i 
equal  footing  with  other  witnesses,  would  change  the 
amount  and  degree  of  evidence  necessary  to  a  conviction 
and  hence  ex  post  facto.  There  appears  to  be  a  distinc- 
tion without  a  difference  "between  a  law  which  admits  less, 
or  w^iich  changes  the  degree  or  amount  of  evidence  nec- 
essary to  a  conviction,  'and  a  law  which  admits  a  class 
of  witnesses,  or  character  of  evidence  which  increases  the 
possibility  of  conviction. '  ^3  Changing  the  place  of  trial 
from  one  country  to  that  of  another;  ^  providing  the  time 
of  day  in  which  the  death  penalty  may  be  inflicted,  and 
prescribing  regulations  as  to  the  number  of  persons  who 
may  witness  its  infliction;  ^^  restricting  the  peremptory 
challenges  to  which  the  defendant  is  entitled;  ^^  requiring 
the  defense  of  insanity  to  be  specially  pleaded  in  a  crim- 
inal prosecution;  ^'^  allowing  the  counsel  for  the  prosecu- 
tion to  open  and  to  close  the  argument  to  the  jury;  ^^  cre- 
ating a  new  court  or  conferring  new  jurisdiction,  or  en- 
larging or  diminishing  the  powers  of  existing  courts;  ^^ 
transferring  jurisdiction  from  one  court  to  another;  au- 
thorizing prosecutions  for  crimes  to  be  upon  information 
as  well  as  upon  indictment,3°  have  been  held  to  affect  the 
remedy  or  the  procedure  of  which  the  defendant  had  no 
right  to  complain  because  of  the  ex  post  facto  character. 

23— Gut  V.  State  of  Minnesota,  9  26— South  v.  State,  85  Ala.  617.   . 

Wall.  35,  76  U.  S.  573 ;  State  v.  Mc-  27— Perry  v.  State,  87  Ala.  30. 

Donald,  20  Minn.  136;  Carpenter  v.  28— People    v.    Motimer,    46    Cal. 

State  of  Pennsylvania,  17  Wall.  191;  114. 

see  Thompson  V.  State  of  Utah,  170  29— Anderson     v.     O 'Donald,     13 

U.  S.  351,  46  L.  ed.  1067;  King  v.  American  State  Eeports  728. 

State  of  Missouri,  107  U.  S.  232.  30— People  v.   Campbell,  43    Am. 

24— Gut  V.  State,  9  Wall.   35,   76  Kep.    (Cal.)    257. 
U.  S.  573. 

25 — Holden  v.  State  of  Minnesota, 
137  U.  S.  483,  34  L.  ed.  736. 


12  Ckiminal  Law 

§  15.  Under  the  provisions  of  the  Texas  statute.  Un- 
der the  Texas  statute  where  it  is  provided,  that  in  case 
the  penaltj^  under  which  tlie  offense  was  committed  lias 
been  ameliorated,  the  defendant  may  elect  to  be  tried  un- 
der the  old  law,  and  to  accept  the  old  penalty,  is  not  an 
ex  post  facto  law;  nor  where  the  degree  of  evidence  is 
decreased  necessary  to  a  conviction.  Thus  where  by  the 
law  under  which  a  seduction  was  committed,  the  in- 
jured female  was  permitted  not  to  testify,  but  under  the 
law  in  force  at  the  time  of  the  trial  she  was  allowed  to 
testify,  held  that  such  law  was  not  ex  post  facto.'^ 

§  16.  Bill  of  rights.  In  all  criminal  prosecutions,  the 
accused  shall  have  the  right  to  a  speedy  and  public  trial, 
by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  is  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  the  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and 
to  have  the  assistance  of  counsel  for  his  defense.  No 
joerson  shall  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  he  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  him- 
self. No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime  unless  upon  a  presentment  or 
an  indictment  of  a  grand-jury,  except  in  cases  arising 
in  the  land  or  naval  forces  or  in  the  militia,  when  in 
actual  service  in  the  time  of  war  or  public  danger.  No 
excessive  bail  shall  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted.^''  Tho 
foregoing  provisions  of  the  Federal  Constitution  are  in- 

31— Mrous  V.  State,  31  Tex.  App.  32— Art.  5  of  the  Constitution  of 

r)97;    Mano   v.   State,   25   Tex.   App.        Ilic  I'niti'd  States. 
105;  Veal  v.  State,  8  Tex.  App.  474; 
Johnson  v.  State,  28  Tex.  App.  562 ; 
.Jcnken.s  v.  State,  28  Tex.  App.  86. 


The  Source  of  Our  Criminal  Laws  13 

corporated  into  the  constitutions  of  the  several  states, 
and  perhaps  in  some  instances  additional  safeguards  are 
thrown  around  the  liberties  of  the  people.^^  These  per- 
sonal liberty  provisions  of  the  constitutions  are  but  the 
affirmative  declarations  and  recognition  of  such  rights 
as  are  handed  down  to  us  by  the  common  law  and  the 
Magna  Charta.  They  are  the  fundamental  liberties  of 
the  people  and  are  necessary  to  the  perpetuity  of  repub- 
lican government.  One  authority  says:  "Our  ancestors 
brought  these  privileges  with  them  to  America  as  their 
birthright  and  inheritance,  and  as  a  part  of  the  common 
law,  which  then  interposed  its  guardianship  and  threw 
around  them  on  every  side  its  protection  against  the 
approaches  of  arbitrary  power."  That  part  of  the  Fed- 
eral Constitution  requiring  capital  or  otherwise  infamous 
crimes  to  be  presented  by  a  grand  jury,  applies  to  crimes 
committed  against  the  laws  of  the  United  States,  and 
does  not  operate  as  a  restriction  upon  the  states  to  enact 
laws  providing  for  the  presentment  of  crimes  upon  in- 
formation.^* A  crime  punishable  by  confinement  in  a 
state  penitentiary  is  regarded  as  infamous  within  the 

33 — See  State  Constitutions.  43  Fed.  Eep.  570,  without  hard  la- 
34 — State  V.  Barnett,  3  Kan.  250 ;  bor.  "A  crime  punishable  for  a 
Prescott  V.  State,  19  Ohio  St.  184;  term  of  years  with  imprisonment  at 
Irwin  V.  Com.,  3  Bush  (Ky.)  18;  hard  labor  is  an  infamous  crime 
State  V.  Jackson,  21  La.  Ann.  574;  within  the  meaning  of  the  fifth 
Twichell  v.  Com.,  7  Wall.  186;  Boyd  amendment  to  the  constitution;  and 
V.  Elliott,  11  Iowa.  97;  U.  S.  v.  that  the  district  court  in  holding 
DeWitt,  9  Ct.  Ill;  Maekin  v.  U.  S.,  the  petitioner  to  answer  for  such 
117  U.  S.  348;  U.  S.  v.  Todd,  21  U.  crime,  and  sentencing  him  to  such 
S.  168.  In  the  absence  of  a  statute  imprisonment  without  indictment  or 
providing  for  the  presentment  of  a  presentment  by  a  grand  jury,  ex- 
crime  by  information  the  conviction  ceeded  its  jurisdiction;  and  he  is 
will  be  without  authority  of  law,  therefore  entitled  to  be  discharged, 
and  the  prisoner  will  be  released  on  See  Ex  parte  Wilson,  114  U.  S.  417; 
habeas  corpus.  In  Ee  Dobson,  25  id.  4  Am.  Cr.  Eep.  283 ;  see  also  Ly- 
Paeifie  Eep.  442  (Men.),  an  offense  barger  v.  State,  2  Wash.  St.  Eep. 
punishable  by  confinement  in  the  768 ;  27  Pacific  Eep.  565 ;  State  v. 
penitentiary  for  more  than  one  year  Hoyt,  4  Wash.  St.  Eep.  465. 
IS  an  infamous  crime ;  U.  S.  v.  Cobb, 


14  Criminal  Law 

meaning  of  the  Federal  constitution.  The  right  of  a  de- 
fendant to  first  be  indicted  before  he  can  be  tried  for 
a  capital  or  otherwise  infamous  crime  was  carried  into 
the  constitution  from  Magna  Charta. 

§  17.  Illustrations.  As  a  further  illustration  of  the 
foregoing,  the  criminal  code  of  the  United  States  pro- 
vides that  punishment  by  the  inflicting  of  the  death 
penalty  or  imprisonment  for  a  time  not  exceeding  one 
year  are  felonies;  ^^  that  the  omission  of  the  words  "hard 
labor"  from  the  provisions  in  the  code  specifying  punish- 
ment under  the  various  sections  of  the  code  shall  not  be 
construed  as  prohibiting  the  power  of  imposing  hard 
labor  as  a  part  of  the  punishment  where  previous  to  the 
enactment  of  the  code  of  1909  hard  labor  might  be  in- 
flicted.^^ The  infamous  feature  being  the  power  to  im- 
pose hard  labor,  not  that  as  a  matter  of  fact  hard  labor  is 
imposed.  The  test  is,  may  the  court  inflict  hard  labor  as 
part  of  the  punishment?  If  he  may,  then  it  is  an  in- 
famous crime,  and  must  be  presented  by  an  indictment 
of  a  grand  jury.^'' 

§  18.  Divisions  of  government.  The  government  of  our 
states  is  divided  into  three  departments,  each  of  which 
acts  as  a  check  upon  each  other.  The  law-making  power 
is  vested  in  the  legislature,  the  members  of  which  are 
elected  from  the  whole  body  of  the  people,  because  of 
their  supposed  superiority  of  intellect  and  experience  in 
governmental  pursuits.  The  legislature  has  power  to 
enact  any  law  not  prohibited  to  the  states  by  the  con- 
stitution and  laws  of  the  United  States  and  the  state  con- 
stitution. The  legislature  is  not  absolutely  sovereign 
in  its  power.  Any  law,  however,  not  in  conflict  with  the 
laws  and  the  constitution  of  the  United  States,  and  not 

35— U.  S.  Cr.  Code,  sec.  335.  36— U.    S.    Cr.    Code,    sec.    338. 

36— TJ.  S.  Cr.  Code,  sec.  338.  §  1050  this  work. 

35_-[j.     s.     Cr.    Code.     spo.  3:in.           37— p]x   piirtc   Wilson,   114   U.   S. 

§  1047  this  work.  NT,  'J!>  L;i\v  Kd.  89. 


The  Source  of  Our  Criminal  Laws  15 

restricted  by  the  state  constitutions,  is  within  the  scope 
of  legislative  authority.^^ 

§  19.  Legislatures  restricted  by  the  constitutions.   The 

legislative  powers  under  our  cunstitutions  greatly  differ 
from  the  power  of  the  English  Parliament.^^  The  latter 
has  unlimited  authority  to  enact  any  law.  The  power 
is  absolute,  and  is  not  in  any  sense  restricted  by  any 
other  department  of  the  government.  Under  our  con- 
stitutions and  theory  of  government,  the  legislative  de- 
partment is  free  from  the  interference  of  any  other  de- 
partment, except  that  the  president  of  the  United  States, 
or  the  governors  of  the  several  states,  may  interpose  a 
veto  to  any  measure. 

If  when  any  law  has  passed  both  houses  of  congress 
the  same  shall  nevertheless  be  presented  to  the  president 
for  his  signature,  and  in  case  of  his  refusal  to  sign  the 
same  within  ten  days,  it  shall  nevertheless  become  a  law, 
but  if  the  same  is  vetoed,  it  may  also  nevertheless  be- 
come a  law,  provided  two-thirds  of  the  congress  shall 
vote  for  the  same.  Similar  provisions  are  incorporated 
into  the  constitutions  of  the  several  states.*® 

§  20.  Legislatures  are  conducted  under  their  own  rules. 

The  congress  and  the  several  state  legislatures  have  full 
power  to  control  their  deliberations,  to  make  rules  for 
their  government  and  to  enforce  their  orders.  They 
have  power  to  hold  any  person  for  contempt  who  refuses 
to  comply  with  them,  and  may  expel  a  member  for  un- 
becoming conduct.  The  power  to  make  needful  rules  and 
regulations  for  their   government   is   absolute.     These 

38 — Constitution    of    U.    S.    and  State    Eep.    544;    Donald   v.    State, 

Constitutions  of  the  several  States.  48  Miss.  661,  12  Am.  E.  375. 

Baker   v.    People,    3    Cow.    486,    15  39  —  Marbury     v.     Madison,     1 

Anier.   Dee.   322;    State   v.    Render-  Crancli.  135. 

son,  1  Wyo.  532,  22  L.  E.  A.   751;  40— See    Blackstone's    Commenta- 

Ex  parte  Berger,  193  Mo.  16,  112  A.  ries,  Constitution  of  U.  S.  and  Con- 

S.   E.   472;    Euss  v.   Com.,  219  Pa.  stitutions  of  the  several  States. 


16  Criminal  Law 

powers  are  incident  and  inherent,  for  otherwise  the  busi- 
ness of  such  bodies  could  not  be  conducted.*^  Senators 
and  representatives  shall  in  all  cases  except  for  treason, 
felonies  and  breaches  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  session  of  their 
respective  houses,  and  in  going  to  and  returning  from 
the  same,  and  for  any  speech  or  debate  in  either  house 
they  should  not  be  questioned  in  any  other  place.  A 
similar  provision  will  be  found  in  the  constitutions  and 
laws  of  the  several  states. 

§  21.  Distinction  between  judicial  and  legislative  pow- 
ers.   The  judicial  department  of  the  government  is  per- 
haps as  important  as  the  legislative.    This  department  is 
to  construe  and  determine  what  the  law  is.    The  legis- 
lature   is    subordinate    to    the    judiciary.     Experience 
teaches  that  the  legislatures   often  leap  beyond  their 
bounds,  and  the  barriers  of  the  constitutions  are  brushed 
aside  by  a  breath  of  passion — and  amid  the  clash  of 
contending  interests  the  fundamental  laws  of  the  land 
are  submerged  in  the  waves  of  party  rancor.    Thus  the 
fathers  from  the  shades  of  the  past  drew  wisdom  for  the 
future  when  they  incorporated  into  the  superstructure  of 
our  government  this  check  upon  the  legislative  powers.*^ 
No  law  can  be  declared  invalid  for  any  misconduct  of  the 
legislature.    A  law  may  have  been  enacted  through  fraud, 
threats  or  coercion,  yet  it  is  not  void  for  that  reason.    So 
long  as  the  legislatures  remain  within  the  bounds  of 
the  constitution,  their  acts  are  valid.     Courts  are  not 
at  liberty  to  inquire  whether  the  legislature  lias  prop- 
erly exercised  its  authority,  if  acting  within  the  hiws  and 
constitution.    The  courts  are  bound  to  presume  that  the 
legislature  has  acted  properly.    It  does  not  come  within 

41— Anderson    v.    Dunn,    G    Wh.  St.  2S2;  Teople  v.  Draper,  15  N.  Y. 

201  ;  Burdctt  v.  Abhott,  14  East  1;  H.  515;  Falconer  v.  Canipljell,  2  Mc- 

Burdett   v.   Coleman,    14    East   1G3;  Leon  195. 

Con.  U.  S.  Art.  II,  sec.  6.  Leon  195;    Marbury   v.   Madison,   1 

42— Erie  R.  K.  v.  Cooper,  33  Vix.  Crancli.  135. 


The  Souece  of  Our  Criminal  Laws  17 

the  province  of  the  courts  to  inquire  into  the  motives 
which  actuate  the  legislature  in  the  passage  of  a  given 
act,  though  fraud  and  corruption  be  alleged.  The  ju- 
diciary has  no  power  to  impute  to  the  legislature  any 
other  than  public  motives  for  their  acts.  For  the  pur- 
pose of  impeaching  a  statute  the  courts  cannot  go  behind 
the  record  to  inquire  into  the  regularity  of  the  proceed- 
ings of  the  legislature.*^ 

§  22.  Court  made  laws.  The  great  body  of  the  English 
common  law  constitutes  a  large  part  of  our  law.  The 
common  law  as  a  system  and  a  science  consists  of  gen- 
eral and  uniform  rules  and  principles  designed  to  meet 
all  phases  of  human  transactions.  No  foresight  could 
evolve  a  rule  which  would  under  all  circumstances  give 
a  remedy,  establish  a  right  or  restrain  a  wrong.  Where 
such  is  the  case  the  party  aggrieved  must  suffer  the 
wrong  until  the  legislature  enact  a  law  covering  the  par- 
ticular case  or  the  court  must  apply  the  general  principle 
to  the  particular  case,  thereby  creating  a  remedy.  If  the 
court  in  applying  a  given  principle  to  a  statement  of  facts, 
for  which  no  previous  precedent  can  be  found,  it  be- 
comes the  province  of  the  judge,  as  well  as  his  duty  to  ap- 
ply the  principle  to  the  new  case.  But  if  the  case  require 
enunciation  of  a  new  principle,  it  is  beyond  the  jurisdic- 
tion of  the  judge  to  make  the  law  to  reach  the  case.  In 
a  primitive  state  of  society,  where  from  the  nature  of 
the  conditions  only  a  few  rights  are  recognized,  and  in- 
deed only  a  few  rights  exist,  the  application  of  a  general 
principle,  to  cases  arising  under  such  society  present  no 
difficulty.  The  application  of  the  new  case  can  be  found 
in  the  precedent  of  the  old.    But  as  population  grows, 

43 — Also  see  Hutchison  v.  Sterne,  Pacific  302,  Ann.  Cas.  1918  A,  58:5. 

Journal  of  Appeals,  Nov.  26,  1898,  The  A.,  T.  &  S.  F.  Ry.  Co.  v.  State, 

No.  7,  page  379;  U.  S.  v.  De  Mouse  40  L.  R.  A.  29.    Note  "a"  and  the 

Nav.  Co.,  142  U.  S.  510;  People  v.  authorities  cited.    Carr  v.  Coke,  116 

Glerm    County,    100    Colo.    419,    35  N.  C.  228,  47  A.  S.  R.  801. 
C.  L.— 2 


18  Criminal  Law 

and  the  wants  and  ambitions  of  men  increase,  the  com- 
mercial and  trade  relations  develop  new  rights  and  obli- 
gations. These  new  rights  must  be  recognized  and  ad- 
judicated, not  by  making  new  law,  but  by  extending  the 
general  principle  to  cover  the  new  right.  The  law  as  a 
system  and  a  science  could  not  develop  and  refine  itself, 
if  the  judge  at  every  turn  was  to  be  handicapped  by  such 
an  arbitrary  rule — a  rule  that  would  confine  him  to  a 
previous  declaration,  based  upon  an  entirely  different 
statement  of  facts.  Judge  Cooley,  in  his  work  on  Torts, 
successfully  and  clearly  illustrates  this  principle:  "Every 
principle  declared  by  a  court  in  giving  judgment  is  sup- 
posed to  be  a  principle,  more  or  less  genuine  in  its  ap- 
plication, and  which  is  applied  under  the  facts  of  the 
case,  because  in  the  opinion  of  the  court  the  facts  bring 
the  case  within  the  principle.  The  case  is  not  the  meas- 
ure of  the  principle,  it  does  not  limit  and  confine  it 
within  the  exact  facts,  but  it  furnishes  an  illustration  of 
the  principle  which,  perhaps,  might  still  have  been  ap- 
plied, had  some  of  the  facts  been  different.  Thus  one  by 
one  important  principles  become  recognized  through  ad- 
judications which  illustrate  them  and  which  constitute 
authoritative  evidence  of  what  the  law  is,  when  other 
cases  shall  arise.  But  cases  are  seldom  exactly  alike  in 
their  facts;  they  are,  on  the  contrary,  infinite  in  their  di- 
versities ;  and  as  numerous  controversies  on  different  facts 
are  found  to  be  within  the  reach  of  the  same  general 
principle,  the  principle  seems  to  grow  and  expand  and 
does  actually  become  more  comprehensive. ' ' 


CHAPTER  II 

DIVISIONS  OF  CRIMES  IN  GENERAL 

§  24.  Division  of  crimes  at  common  felonies 

_  law. 

§  25.  Petit  treason  and  its  incidents.  §  ;!5.   Forfeiture    of    goods    and    es- 
«(  26.  Difference     between     treasons  tates  at  common  law. 

and  felonies  at  common  law. 
§  27.  Overt     act     necessan.^     to     be  misdemeanors 

shown  in  treason. 

§  28.  Misprisions.  S  ■''<>.   All  crime  below  felonies,  mis- 
§  29.  As  to  what  required  in  indict-  demeanors. 

nient.  §  37.  Police  regulations,  cities,  state, 
§  30.  Important  distinctions.  etc. 

§  31.  The    right   to   kill    to    prevent  S  38.  Of  the  classes  of  police  regu- 

felony.  lations. 

§  32.  What  is  compounding  felony.  §  39.  ]\Iisdemeanors   mala   prohibita, 
§  33.  Doctrine  as  applied  to  misde-  what  are. 

meanors.  §  40.  Nuisances    possess    both    civil 
§  34.  No   misprision   of   misdemean-  and  criminal  character. 

ors. 

§  24.  Division  of  crimes  at  common  law.  At  the  com- 
mon law,  crimes  were  divided  into  three  classes:  Trea- 
sons, felonies  and  misdemeanors.  Treasons,  as  defined 
by  Sir  William  Blackstone:  "Treason  imports  a  be- 
traying, treachery  or  breach  of  faith."  Treason  is  sub- 
divided into  high  treason  and  petit  treason.  By  the  laws 
of  England,  high  treason  consisted  in  personal  injury  to 
the  king;  compassing  the  king's  death;  levying  war 
against  the  government;  giving  aid  and  comfort  to  the 
king's  enemies;  violating  the  king's  eldest  unmarried 
daughter,  the  queen  consort,  the  wife  of  the  king's  eldest 
son;  counterfeiting  the  king's  privy  seal;  having  carnal 
intercourse  w^ith  the  king's  eldest  daughter,  the  king's 
wife,  or  the  wife  of  the  king's  eldest  son,  with  or  with- 
out force.^ 

1 — 4  Bla.  chap.  6.    Every  person       owing     allegiance     to     the     United 

19 


20  Ckimixal  Law 

§  25.  Petit  treason  and  its  incidents,  etc.    By  the  law 

of  England  it  was  petit  treason  for  the  wife  and  those 
interested  with  her  to  kill  the  husband,  and  so  also  for 
the  servant  to  kill  the  master.  The  English  rule,  how- 
ever, merged  the  treason  into  the  murder.  In  the  United 
States  there  are  no  such  distinctions.  All  persons  are 
equal,  and  to  kill  the  president  of  the  United  States  is  no 
greater  crime  than  to  kill  the  humblest  citizen.  The 
English  government  was  based  upon  the  supposition  that 
the  king  was  the  divinely  appointed  ruler,  and  could  not 
commit  a  wrong,  and  was  also  incapable  of  doing  an  in- 
justice. In  the  United  States  all  power  vests  in  the  com- 
munity and  is  derived  from  the  consent  of  the  governed. 
There  are  no  special  privileges  or  immunities  granted  to 
one  citizen  to  the  exclusion  of  another.  All  classes  of 
persons  are  equal  before  the  law,  and  so  far  as  the  ethics 
of  the  criminal  laws  are  concerned,  there  are  no  distinc- 
tions between  persons  and  their  rights.  As  we  have  no 
high  treason  in  the  United  States,  it  follows  that  we  can 

States  who  levies  war  against  them  particular  state,  is  guilty  of  mis- 
er adheres  to  her  enemies,  gives  prision  of  treason,  and  shall  be  im- 
comfort  or  and  to  her  enemies  in  the  prisoned  not  more  than  seven  years 
United  States  or  elsewhere.  Sec.  and  fined  not  more  than  a  thousand 
5331  Rev.  Stat.  U.  S.  1878:    Every  dollars. 

person  guilty  of  treason  shall  suffer  See  United   States  v.  Insurgents, 

death,   or   at   the   discretion   of   the  2    Dall    335;    U.    S.    v.    Mitchell,    2 

court,  shall  be  imprisoned  at  hard  la-  Dall  348;  United  States  v.  Vellato, 

bor  for  not  less  than  five  years  and  2    Dall    370;    Ex    parte    Bolman    & 

fined  not  less  than  $10,000.00.    Sec.  Bwartout,   4   Cr.   75;    United   States 

5332.     Every  person  guilty  of  trea-  v.    Prior,    4    Wash.    334;    1    Burr's 

son  shall  moreover  be  incapable  of  Trials,  14-1 G;   2  Burr's  Trials,  402- 

bolding     office     under    the     United  5-17. 

States.      Every    person    owing   alle-  2 — 4    Black.    75:       Petit    treason 

giance  to  the  United  States  and  hav-  was  aboli.shed  by  2  R.  S.  657  and  tJie 

ing    knowledge    of    the    commission  offenses   arc    the   same    as    if    com- 

of   any   treason   against   them,   who  mittcd  by  a  stranger.     At  this  time 

conceals,  docs  not,  or  as  soon  as  may  in    both    England    and    the    United 

be,  disclose  or  make  known  the  same  States  treason  consists  in  declaring 

to   the  president  or   some  judge  of  war,  adhcriiiLT  to  tlio  enemy,  or  giv- 

the    United    States,   or   to   the   gov-  ing   them   aid    or   comfort, 
ernor  or  some  judge  or  justice  of  a 


Divisions  of  Crimes  in  General  21 

have  no  petit  treason.  The  unjust  distinctions  as  to  the 
relative  rights  of  husband  and  wife  have  given  way  to 
the  march  of  a  higher  civilization:  the  barbarous  doctrine 
that  the  master  was  lord  over  the  actions  of  his  servants, 
or  employees,  has  become  obsolete,  and  there  is  planted 
instead  equal  rights  and  equal  penalties,  whether  it  is 
the  master  or  the  servant  who  is  charged.  The  criminal 
law  as  theoretically  administered  is  an  aegis  around  the 
liberty  of  the  citizen,  whether  he  be  an  employer  or  em- 
ployee, rich  or  poor,  and  to  the  evil  doer,  through  its 
broad  humanity  and  systematic  rules  seeks  to  reclaim, 
and  stamp  upon  him  its  highest  hopes  of  justice. 

§  26.  Distinction  between  treason  and  felony,  at  com- 
mon law.  Treason  at  common  law  was  felony,  but  all 
felonies  were  not  treason;  a  conviction  for  either  carried 
with  it  a  forfeiture  of  goods  and  lands  and  the  corrup- 
tion of  blood.  The  real  distinction  consisted  in  the  nature 
of  the  crime  and  the  amount  of  evidence  necessary  to  a 
conviction.  Treason,  strictly  speaking,  is  a  crime  against 
the  government  and  is  particularly  heinous,  because  it 
shows  a  spirit  entirely  void  of  patriotism  and  love  of 
one's  country.  It  is  a  bounden  duty  to  adhere  to  one's 
government  and  to  protect  it  against  the  interference 
of  a  foreign  power,  and  against  any  interference  what- 
ever. Blackstone  in  his  commentaries  defines  treason 
to  be  "The  tie  or  liegemen  which  binds  every  subject 
to  be  true  and  faithful  to  his  sovereign  liege  lord 
the  king,  in  return  for  that  protection  which  is  afforded 
him:  and  truth  and  faith  to  bear  of  life  and  limb  and 
earthly  honor:  and  not  to  know  or  hear  of  any  ill  in- 
tended him  without  defending  therefrom. ' '  ^ 

§  27.  Overt  act  necessary  to  be  shown  in  treason.    To 

warrant  a  conviction  for  treason,  an  overt  act  must  be 

3—4  Black,  chap.  6,  75.    See  Chit- 
ty's  Cr.  Law,  779  to  801. 


22  Criminal  Law 

alleged  and  proved.*  It  has  been  held  that  a  writing  con- 
taining treasonable  matter,  although  not  published  or  ex- 
hibited to  others,  was  sufficient.^  Under  the  constitution 
of  the  United  States,  no  conviction  can  be  had,  except 
upon  the  evidence  of  two  witnesses  to  the  same  overt  act, 
or  upon  confession  in  open  court.  Constitution  U.  S.,  Art. 
in,  Sec.  3,  clauses  1  and  2. 

§  28.  Misprisions.  Misprision  of  treason  consists  in  the 
guilty  knowledge  of  a  treasonable  act,  and  in  the  failure 
to  disclose  such  information  to  the  government.  Treason 
is  regarded  by  all  nations  as  the  worst  of  crimes,  and 
merits  severe  penalties.  For  this  reason  one  having 
knowledge  of  another's  treasonable  act,  although  not 
participating,  if  he  conceals  such  knowledge,  is  guilty 
of  an  offense.  All  who  participate  in  a  treasonable  act 
are  principals.  Under  the  constitution  and  laws  of  the 
United  States  all  persons  charged  with  treason  or  mis- 
prision of  treason,  must  owe  allegiance  to  the  United 
States.  A  foreigner  owing  allegiance  to  any  king,  prince, 
power  or  government,  cannot  be  guilty  of  these  crimes 
against  the  United  States.  The  same  principle  would 
no  doubt  bear  application  to  treasons  against  the  states, 
for  all  the  states  have  substantially  the  same  provisions 
affecting  these  crimes  as  the  constitution  and  laws  of 
the  United  States.^ 

4, — The  overt  acts  arc  the  means  5 — Rex.  v.  Stone,  G  T.  R.  527;   1 

made  use  of  to  effectuate  the  inten-  East    P.    C.    79;    Fisher's    Cr.    Law 

tions  of  the  heart.     An  indictment  467,  468,  469,  470. 

for  levying  war  or  adhering  to  the  6 — 3   Greenleaf,  sec.   238.   Mispri- 

the    king's    enemies,    an    overt    act  sion  of  treason  against  the  U.  S.  is 

must  be  alleged  and  proved,  for  the  where    any    person    hearing    of    the 

overt  act  is  the  charge  to  whieli  the  commission    of    any    treason,    shall 

pri-soner    must    apply    his    defense.  conceal  and  not  as  soon  as  may  lie, 

But   it   is  not  necessary  that  whole  disclose    same    to    the    President    of 

of     the    evidence     intended     to     be  the  United  States,  some  one  of  the 

given    .should    be    set    forth.       The  judges  thereof  or  the  governor  of  a 

common   law   never  required   it,  nor  state    or    some    ono    of    the    judges 

does   the   .statute   of    King   William  thereof. 
require  it.     Note  5  4  Bla.  80. 


Divisions  of  Crimes  in  General  23 

§  29.  As  to  what  is  required  in  the  indictment.    It  is 

necessary  in  an  indiclnienl  for  treason  or  misprision  of 
treason  to  allege  that  the  party  charged  owed  allegiance 
to  the  United  States  or  to  the  state  as  the  case  may  be. 
Any  competent  evidence  sufficient  to  establish  this  beyond 
a  reasonable  doubt,  is  enough.  Two  witnesses  are  neces- 
sary to  establish  the  overt  act. 

§  30.  An  important  distinction  is  noted  here.  In  fel- 
onies there  is  no  legal  duty  to  inform  against  one  who 
has  committed  a  felony,  although  such  knowledge  is  pur- 
posely concealed.  The  person  having  such  knowledge 
would  be  an  accessory  after  the  fact  if  such  concealment 
was  made  with  the  intent  to  aid  in  the  escape  of  the  of- 
fender. Independent  of  the  intent  to  aid  in  the  escape  of 
the  guilty  party  the  mere  knowledge  and  negligent  fail- 
ure to  disclose  it,  is  not  punishable  as  a  distinct  crime. 
One  knowing  a  felony  to  have  been  committed  who  pur- 
posely conceals  it  from  one  having  a  right  to  inquire, 
would  be  guilty  of  misprision  of  felony. 

§  31.  The  right  to  kill,  to  prevent  a  felony  committed  in 
presence.  One  present  when  a  felony  is  committed  upou 
the  person  of  another,  has  the  right  to  prevent  it  by 
killing  the  offender,  all  other  means  failing.  The  homi- 
cide would  be  justifiable  under  such  circumstances. 
There  is  a  legal  duty  upon  every  one  to  prevent  a  felony 
attempted  to  be  committed  in  his  presence."' 

§  32.  What  is  a  compounding  of  felony.  Compounding 
felony  is  where  one  for  a  valuable  consideration  or  some 
other  purpose,  agrees  with  the  principal  not  to  prosecute 
or  otherwise  aid  him  and  shield  him  from  prosecution.* 

7_4  Bla.   184.     The  felony  must  sailant  be  killed  when  there  is  rea- 

he    actually    committed    to    justify  sonable  ground  to  believe  he  is  about 

a  pursuit  of  felony.     A  reasonable  to   commit   a   felony,   the   killing   is 

belief  that  a  felony  has  been  com-  justifiable, 
mitted,    not    sufficient.      But   if    as-  8—4  Bla.   133  and  note. 


24  Criminal  Law 

At  common  law  he  was  regarded  as  an  accessory.  In 
those  states  where  in  the  absence  of  a  statute,  the  com- 
mon law  would  be  enforced,  it  seems  the  offense  is  indict- 
able.® Usually  it  is  specially  provided  by  the  statutes 
that  the  offense  be  punishable.^"  A  promise  by  a  prin- 
cipal to  pay  money  or  any  other  contract,  based  upon  a 
consideration  of  forbearance  to  prosecute,  cannot  be  en- 
forced against  him,  upon  the  ground  of  public  policy. 
No  one  has  the  right  to  defeat  the  ends  of  public  justice 
by  such  contracts.  In  such  cases  one's  personal  interests 
are  subordinate  to  that  of  the  public.  To  permit  the  en- 
forcement of  such  contracts  would  pollute  the  very  foun- 
tains of  justice. 

§  33.  Doctrine,  as  applied  to  misdemeanors.  The  prin- 
ciples involved  in  the  preceding  section,  in  reference  to 
the  compounding  of  felonies,  apply  with  equal  force  to 
misdemeanors,  except  there  cannot  bo  accessories  to  a 
misdemeanor.  All  parties  connected  in  the  commission 
of  a  misdemeanor  are  principals.  Compounding  a  misde- 
meanor, was  at  the  common  law  a  substantive  offense 
and  was  indictable  as  such."  The  English  laws  re- 
garded such  attempts  to  thwart  the  ends  of  public  jus- 
tice as  particularly  reprehensible  and  visited  them  with 
rather  severe  penalties.  By  statute  25  Geo.  Ill  the  penal- 
ties were  reduced.  Most  of  the  states  have  substantially 
the  same  provisions  incorporated  in  their  respective  stat- 
utes upon  the  subject,  covering  in  particular  '^  Compound- 
ing offenses,"  and  it  is  of  very  little  practical  importance 
whether  the  compounding  a  misdemeanor,  as  a  matter  of 
law  could  be  indicted  as  a  common  law  offense. 

§  34.  There  is  no  misprision  of  a  misdemeanor.  There 
is  no  legal  obligation  n])oii  .-my  person  to  inform  the  au- 

9—4   Am.  &  KnjT.   KmpI.-i.  (157  :i)i(l  111    I?l:i.    131;    4    Am.    &    Eur. 

note.  Kncl.i.  Lnw   G5S,  302;   Chitty's  Cr. 

10— Com.   V.   PoaHc,   IC  Mass.   91.       Law,  Vol.   I,  Ed.   1841. 


Divisions  of  Crimes  in  General  25 

thorities  of  his  knowledge  respecting  the  commission  of 
a  misdemeanor.  As  we  have  already  said  all  persons 
connected  with  the  commission  of  a  misdemeanor  are 
principals.  The  law  does  not  take  notice  of  small  things, 
nor  draw  distinctions  in  the  degrees  of  guilt  in  petty  of- 
fences. The  public  therefore  could  suffer  but  slight,  if 
any  injury  in  the  failure  of  any  person  to  disclose  his 
knowledge  of  the  commission  of  a  misdemeanor. ^'^ 

FELONIES 

§  35.  Forfeiture  of  goods  and  estates  at  common  law. 
Originally  all  offenses  which  occasioned  the  forfeiture 
of  goods  and  land  were  felonies.  All  forfeitures  and 
corruption  of  blood  as  part  of  the  punishment  of  felonies 
have  been  abolished  in  this  country.  The  usual  punish- 
ment inflicted  by  the  laws  of  the  several  states,  is  death 
or  confinement  in  the  penitentiary.  The  test  as  to 
whether  an  offence  is  a  felony,  in  most  of  the  states,  is 
whether  punishment  is  inflicted  by  confinement  in  the 
penitentiary  or  by  death.  At  one  time  upon  the  authority 
of  Sir  William  Blackstone,  no  less  than  160  different  of- 
fences were  punished  capitally,  by  the  laws  of  England. 
The  common  law  considered  many  grave  offences  as  mis- 
demeanors only.  Perjury,  in  the  light  of  the  present,  is 
regarded  as  a  very  mischievous  offence,  was  at  the  com- 
mon law  a  misdemeanor,  whilst  theft,  much  milder  and 
less  reprehensible,  was  a  felony.  But  by  statute  7  &  8 
Geo.  IV  it  was  made  a  felony  without  the  benefit  of 
clergy.^^ 

12—4  Bla.  36:     "In  trespass  all  (R.  I.),  24  Atl.  473.     Those  crimes 

are  principals,  because  the  law  quae  are   felonies   that   were   so   by  com- 

de  minimis  non  curat  does  not  de-  mon   law  and   those  also   that  have 

scend    to    distinguish    the    different  been   made   such  by   the  legislature 

shades     in     petty     misdemeanors."  and      appended      punishments      for. 

Com.  V.  Garnett,  79  Am.  Dec.  79.  Com.   v.    SchoU,    12   Pa.   Co.    Ct.   E. 

13 — Crime  is  not  a  felony  unless  554.  In  New  York  all  crimes  pun- 
made  so  by  statute  or  was  so  by  ishable  by  death  or  imprisonment  in 
the  common  law.     State  v.  Murphy  the  state  prison  for  a  longer  period 


26  Criminal  Law 

misdemeanoes 

§  36.  All  crimes  below  the  degree  of  felony  are  misde- 
meanors. Misdemeanors  are  divided  into  two  classes. 
(1)  Misdemeanors  malum  in  se,  are  such  offences  as  pos- 
sess a  moral  tuipitude  and  indicate,  prima  facie  a  wicked 
and  malicious  intent. 

It  is  not  to  be  inferred  that  all  acts  possessing  immor- 
alities are  subject  to  the  jurisdiction  of  law.  Many  things 
are  immoral,  but  are  not  subject  to  legislative  control. 
Many  wrongful  acts  have  immoral  tendencies,  but  all  im- 
moral acts  are  not  subject  to  the  supervision  of  the 
state.  The  state  has  the  right  to  prohibit  by  law,  any 
act  of  her  citizen  which  wrongfully  affects  the  commun- 
ity, whether  the  act  is  moral  or  immoral.  Thus  where 
a  person  shuts  himself  in  his  private  room  and  makes 
himself  drunk,  this  is  a  very  immoral  act,  but  the  com- 
munity cannot  be  affected  by  it.  If  he  gets  drunk  and 
goes  into  a  public  place,  the  community  is  aifected  be- 
cause of  the  public  exhibition  of  a  gross  innnorality,  and 
it  steps  in  and  punishes  the  act,  not  because  it  is  immoral 
but  because  of  the  immoral  example.  In  a  moral  sense 
there  is  really  no  diiference.  In  the  one  case  it  affects  the 
drunkard  and  in  the  other  it  affects  the  people  in  general, 
by  exhibiting  an  example.  There  is  a  point  wliere  society 
must  stop  in  curtailing  the  personal  and  individual  lib- 
erty  of  the   citizen,   notwithstanding  exercise   of  such 

than  one  year,  is  a  felony.     People  per  se  it  is  to  be  deemed  a  misdc- 

V.   Hayes,   137   N.   Y.   29,   32   N.    K.  nio:inor,  unless  the  law  expressly  de- 

llfl5.     See  State  v.  Harr.  (W.  Va.),  noniinntes    it    a    felony.      U.    S.    v. 

17   S.   E.   794.      Confinement   in   the  Vijril  (N.  M.),  34  Pacific  530.    The 

penitentiary     or    the     infliction     ol'  Kansas    Statute    defines    a     felony 

death    is    the    test    in    determining  against  the  state  to  be  confinomoit 

whctliir   an    oiTense    is   n    felony   or  and  hard   labor  in  the  state  prison 

not.      ifaferty    v.    State,    1(>    S.    W.  for  two   years.      In   re   Stevens,   r)2 

728.       If    the    act    constituting    an  Kans.  CtC},  34  I'.-icific  4r)9.     8oe  .State 

offense    against    the    laws    of    the  v.  I^Ieiton,  117  Mo.  COS,  na  Mo.  App. 

United   States   was  not  criminal  at  646. 
the  common   law  and   is  not  wrong 


Divisions  of  Crimes  ix  General  27 

liberty  may  load  him  into  many  immoralities.  Individual 
and  personal  liberty  ceases  at  the  point  where  another's 
right  begins." 

§37.  Police  regulations  in  towns,  cities  and  state. 
Many  acts  are  prohibited  whicli  are  neither  moral  or  im- 
moral; thus  police  regulation  in  cities  of  large  popula- 
tions prohibit  many  acts  which  considered  independently 
of  the  place  where  committed,  are  entirely  innocent ;  such 
for  instance,  as  the  prohibition  against  leaving  animals 
hitched  to  vehicles;  against  the  running  of  animals  on 
the  streets  and  other  public  places;  against  the  construc- 
tion of  buildings,  unless  constructed  of  certain  kind  of 
material;  against  the  failure  to  keep  in  repair  streets, 
alleys,  etc. ;  against  the  failure  to  procure  a  license  to  en- 
gage in  certain  kinds  of  business;  quarantine  regulations; 
against  the  spread  of  infectious  diseases;  prohibitions 
against  occupations  which  affect  the  public  health;  laws 
against  the  killing,  trapping  and  netting  of  birds ;  catch- 
ing and  poisoning  fish;  and  all  kinds  of  game  laws.  So 
also  all  other  laws,  which  are  intended  to  regulate  the 
affairs  of  the  state,  the  county  or  the  city,  and  which  affix 
penalties  for  doing  or  not  doing  certain  things,  are  of- 
fences possessing  no  element  of  intrinsic  wrong.  A 
state  has  the  undoubted  right  to  enact  any  law,  deemed 
to  be  of  a  benefit  to  the  public;  and  for  the  violation  of 
such  laws  may  attach  penalties.  The  character  of  laws 
discussed  in  this  section  are  authorized  only  upon  the 
ground  of  public  policy  and  the  necessity  of  insuring 
protection  to  the  community.  Anything  of  the  nature 
herein  mentioned  which  affects  a  community  in  general  or 
which  affects  a  great  portion  of  it  is  the  subject  of  legis- 
lative action.  Corporations  can  be  made  to  submit  to 
proper  police  regulations  in  the  interest  of  society.^^ 
Bookmaking  is  within  the  police  power  of  a  state  or 

14 — Baker    v.    People,    15    Amer.  15 — Piatt     v.     Denver     Canal     & 

Dec.  332.  Milling  Co.    (Colo.),  30  Pacific  68. 


28  Ceiminal  Law 

city."  Regulating  water  closets  in  private  houses  in 
cities  come  within  municipal  authority.^'''  Regulating  the 
sale  of  meats  and  groceries;  the  manufacture,  sale  and 
carrying  of  firearms ;  the  sale  of  cigarettes  and  explosives 
all  may  be  reached  by  the  police  power  of  the  state.^' 

§  38.  Of  the  classes  of  police  regulation,  etc.  Police 
laws  are  divided  into  two  classes:  (1)  Restrictive  or 
prohibitive;  (2)  negative  or  emissive. 

First :  Restrictive  or  prohibitive  police  regulations  are 
such  as  restrict  and  prohibit  certain  class  of  acts.  Sec- 
ond: Negative  or  omissive  police  regulations  are  such 
as  command  a  public  dut}^  the  failure  to  do  which  is 
made  penal;  such  as  the  failure  to  contribute  to  a  public 
tax  or  to  perform  labor  in  repairing  a  road  or  bridge;  the 
failure  to  disinfect  vaults,  sinks  and  privies,  etc.,  as  re- 
quired under  sanitaiy  laws. 

§  39.  Misdemeanors  mala  prohibita,  what  are.  Mis- 
demeanors mala  prohibita  is  that  class  of  laws  which 
prohibit  certain  acts  and  which  contain  no  element  of 
wrong  doing  but  are  deemed  disadvantageous  to  the 
public.    Usually  these  laws  are  termed  police  regulations. 

§40.  Nuisances  possess  both  a  civil  and  a  criminal 
character.  One  guilty  of  maintaining  a  nuisance  may  be 
proceeded  against  in  a  civil  suit  for  damages  or  may  be 
prosecuted  criminally  for  the  injuiy  to  the  public.  A 
crhninal  nuisance  is  rather  diflicult  of  definition,  but  in 
general  those  offences  which  affect  the  good  order,  and 
the  public  economy  of  the  state:  being  those  acts  which 
disturb  the  citizen  and  destroy  his  quiet,  peace  and  com- 
fort."   These  acts  may  consist  either  in  doing  that  which 

IG— BergdcolTcr    v.    Stale,    17    S.  18— Com.   v.   IJoborts    (Mass.),  29 

W.  GIG.  N.  E.  52:\ 

17_Statc   V.   Alcson    (Minn.),   r>'2  19— The  owners  of  lots  along  tlio 

N.  W.  220.  main    street    of    a    populous    town 


Divisions  of  Crimes  iisr  General 


29 


conduces  to  the  general  discomfort  of  all  the  citizens  or 
in  the  failure  to  do  that  which  the  good  of  the  community 
requires  to  be  done.  Thus  at  the  common  law  such  busi- 
ness, trades  or  professions  which  proved  to  be  offensive 
to  the  public  through  stench,  noise  or  uncleanliness  were 
indictable  as  common  nuisances.^"  So  also  the  failure  to 
perform  any  duty  required  of  every  citizen  for  the 
benefit  of  all  or,  in  other  words,  for  the  benefit  of  the 
community  in  general,  such  as  the  repair  of  bridges, 
highways  and  the  like.  Under  the  head  ** nuisances"  is 
included  all  those  acts  and  omissions  which  affect  the 
decency,  morals,  peace  and  the  comfort  of  the  individual, 
and  the  good  order  of  the  public.     Offensive  manufac- 


where  there  were  no  sidewalk  and 
the  whole  way  being  used  by  the 
public,  and  the  same  being  enclosed 
by  barbed  wire  fence,  it  was  held 
to  be  a  nuisance  per  se  and  that  the 
authorities  had  the  right  to  remove 
the  same.  Bower  v.  Watertown, 
Borough  Pa.  Com.  Pleas,  11  Pa.  Co. 
Ct.  E.  110.  A  piggery  in  which 
swine  is  kept  in  such  numbers  that 
their  natural  odors  fill  the  air  and 
make  the  occupation  of  neighbor- 
ing houses  and  the  passage  along 
the  adjoining  highway  disagreeable, 
is  a  nuisance.  Com.  v.  Perry,  29 
N.  E.  (Mass.)  656,  139  Mass.  198; 
Gay  V.  State,  18  S.  W.  (Tenn.)  260, 
96  Tenn.  645.  Under  an  ordinance 
of  a  city,  declaring  that  every  ob- 
struction of  a  street,  except  by  au- 
thority of  a  permit,  granted  under 
it  should  be  a  nuisance,  bill  boards 
stationed  at  the  entrance  to  an 
opera  house  was  held  to  be  a  nui- 
sance. City  of  Wilkes-Barre  v.  Bur- 
gender,  7  Kulp.  63.  A  livery  stable 
is  a  nuisance  per  se.  City  of  St. 
Louis  V.  Russell,  22  S.  W.  470. 

20— Eussell  on  Cr.  318;   1  Hawk, 
P.  C.  75,  4  Bla.  166.     Neither  the 


fact  that  a  business  is  carried  on 
in  a  careful  and  prudent  manner 
and  that  nothing  is  done  by  those 
managing  it  which  is  not  a  reason- 
able and  necessary  incident  of  the 
business,  nor  the  fact  that  when 
the  business  was  commenced,  the 
lands  in  the  vicinity  were  open 
common,  will  authorize  a  continu- 
ance, in  the  midst  of  a  populous 
community,  which  constantly  pro- 
duced odors,  smoke  and  soot  of  such 
a  noxious  character  and  to  such  an 
extent,  that  they  produce  headache, 
nausea,  vomiting  and  other  pains 
and  aches,  injurious  to  health.  A 
corporation  pursuing  a  business 
which  is  injurious  to  the  inhabi- 
tants, in  producing  sickness,  may 
be  convicted  of  mainta'ining  a  pub- 
lie  nuisance.  People  v.  Detroit 
White  Lead  Works,  82  Mich.  471 
One  who  contributes  to  the  pollu- 
tion of  a  stream  of  water  is  guilty 
of  a  public  nuisance.  State  v 
Smith  (Iowa),  48  N.  W.  727. 
Playing  a  baseball  game  on  Sun- 
day, if  not  in  the  vicinity  of  habt 
tations.  Com.  v.  Mej-ers,  8  Pa.  Co 
Ct.  435,  is  not  a  nuisance. 


30 


Ckiminal  Law 


tories  in  thickly  inhabited  neighborhood,  a  pig  sty,  a  pow- 
der house  and  the  like  are  common  nuisances.  It  is  not 
sufficient  that  the  nuisance  disturb  the  individual  only, 
but  it  must  extend  to  the  public. ^^  If  the  discomfort  or 
the  annoyance  affects  one  person  or  family  it  is  a  private 
nuisance.  The  difference  between  this  and  a  common 
nuisance  consists  in  the  extent  of  the  injury;  in  the  one 
case  it  extends  to  the  individual  and  in  the  other  it  ex- 
tends to  the  public.  Thus  if  A  conducts  a  business  so 
near  B's  house  as  to  disturb  him  and  his  family  it  is  a 
private  nuisance,  but  conducted  in  a  thickly  settled  com- 
munity it  becomes  an  indictable  crime. 


21 — Evidence  that  a  single  person 
lived  in  vicinity  of  a  slaughter  pen 
and  that  he  was  annoyed  by  offen- 
sive odors  is  insufficient  in  a  crim- 
inal prosecution  to  show  a  public 
nuisance.  State  v.  Wolf  (N.  C), 
17  8.  E.  528.  In  a  prosecution  for 
maintaining  a  slaughter  pen,  emit- 
ting offensive  odors  as  a  common 
and  public  nuisance,  to  all  persons 
passing  along  the  highway  adjoin- 
ing it  is  necessary  to  prove  that  the 
highway  is  a  public  highway.  An 
indictment  alleging  that  the  defend- 
ant did,  on  the  public  street  or 
highway,  profanely  swear  and  curse 
and  take  the  name  of  God  in  vain, 


to  the  evil  example  and  to  tlie  coiu- 
mon  nuisance  of  the  good  citizens 
of  the  state,  does  not  charge  a  com- 
mon nuisance  in  the  absence  of  an 
averment  that  the  utterances  were 
in  the  presence  of  citizens  and  in 
their  hearing  and  -that  the  manner 
and  the  occasion  of  making  tliem 
were  of  the  offensive  and  annoy- 
ing character  necessary  to  make 
them  a  public  nuisance.  Com.  v. 
Sims,  158  Pa.  St.  22;  also  27  Atl. 
843.  For  further  discussion  of  nui- 
sances, see  Phillips  v.  The  City  of 
Denver,  34  Pacific  902;  Kelly  v. 
The  City  of  New  York,  27  N.  Y. 
164. 


CHAPTER  III 

OF  THE  MILITAEY  LAWS 

§41.  Laws    of    every    nation    neces-  §50.  No   power   in   the   civil   courts 

sarily   divided   into   two   de-  to    review   proceedings   in   a 

partnients.  court   martial,  except   for  a 

§  42.  Responsibility  to   two  laws  at  want  of  jurisdiction. 

the   same   time.  §  51.  Conviction     in     the     military 

§  43.  Military     rules     and     regula-  courts  no  bar  to  prosecution 

tions    are    not    in    a    strict  in    the    state    courts,    or    in 

sense  a  part  of  the  criminal  the  federal  courts. 

law.  §  52.  International  comity. 

§  44.  iMilitary     power     inherent     in  §  53.  Jurisdiction  is  conferred   over 

every  govermnent.  all  persons  in  the  service. 

§  45.  Of  the  martial  law.  §  54.  Jurisdiction  attaches  wlien. 

§  46.  Crimes  committed  in  the  army  §  55.  Who    is    subject    to    military 

and  navy.  duty. 

§  47.  Of  court  martial.  §  56.  State    militia    under    supervi- 

§  48.  Who    may    convene    a     court  sion    of    the    United    States 

martial.  when. 
§  49.  Of  the   territorial  jurisdiction 

of  the  military. 

§  41.  The  civil  and  military  distinction.  We  come  now 
to  the  discussion  of  another  part  of  the  law  which,  in 
contradistinction  to  the  civil  law,  is  known  as  the  mili- 
taiy  law. 

The  law  of  every  nation  is  necessarily  divided  into 
departments  which  are  practically  independent  and  dis- 
connected. It  is  necessaiy  to  the  continuance  and  per- 
petuity of  civil  society  that  these  two  be  maintained 
distinct.  The  object  of  all  municipal  law  is  the  mainte- 
nance of  equal  rights  to  all  persons,  and  this  law  in  its 
comprehensive  sense,  includes  both  the  civil  and  the  mili- 
tary. The  military  law  is  designed  for  the  government  of 
a  particular  class  of  persons  and  to  be  administered  in 
special  or  particular  tribunals.  The  navy  and  the  army 
are  maintained  by  the  civil  government  for  the  purpose 

31 


32  Ceiminal  Law 

of  giving  aid  and  support  to  the  executive  department 
of  the  government  in  enforcing  the  laws  of  the  land  in  up- 
holding the  government  itself.  The  military  law  is,  strictly 
speaking,  those  rules  and  regulations  designed  for  the 
government  of  the  army  and  navy  as  an  aggregate .  and 
distinct  community,  and  in  this  sense  is  distinct  from 
that  of  the  civil  laws  and  authorities  of  the  state.  Mili- 
tary law  and  authority,  of  course,  derives  its  authority 
from  the  state,  and  in  all  things  is  answerable  to  the  civil 
laws,  except  as  to  its  internal  government.^ 

§  42.  Responsibility  to  two  laws  at  the  same  time.  One 
engaged  in  the  army  or  the  na\^^  does  not,  for  that  reason, 
cancel  his  responsibility  to  the  civil  law.  His  liabilities 
and  responsibilities  are  twofold — that  is,  he  is  subject 
to  both.  The  soldier  is  still  a  citizen,  and  as  such  is 
amenable  to  the  civil  tribunals.^  By  electing  to  become 
a  soldier  he  assumes  additional  duties  for  which  he  is 
held  accountable.  Nothing  is  better  settled  than  that  the 
citizen  is  amenable  to  the  civil  law  in  whatever  part  of 
the  govermnent  he  may  be  engaged  or  employed.  Under 
the  statute  of  the  United  States  persons  enlisted  in  the 
military  service  of  the  United  States  are  exempt  from 
arrest  upon  civil  process  while  so  engaged,  except  for 
certain  debts  contracted  for  prior  to  their  enlistment.' 
Officers  of  the  army  and  navy  are  exempt  from  arrest 
upon  civil  process  upon  grounds  of  public  policy.  "No 
officer  or  employee  of  the  United  States  is,  by  his  position 
or  the  service  he  is  called  to  perfonn,  beyond  responsibil- 
ity to  the  legal  tribunals  of  the  country,  and  to  ordinaiy 
process  and  detentions  when  accused  of  felony  in  the 
manner  prescribed  in  tlie  constitution  and  laws."* 

1 — Benncts  Military  Law  1;  Win-  4 — United     States     v.     Kirby,     7 

throps  Military  Law  4.  Wall.   482.    The  court  further  says 

2— State  V.   RparkH,  27   Tex.   027.  that  "It  may  be   doulited   whether 

.3 — Ex  parte  McRoberts,  10  Iowa  it  is  competent  for  conpress  to  ex- 

600;    12    Am.    &   Eng.    Encly.    428.  ompt  the  employees  of  the  govern- 


Of  the  Military  Laws  33 

§  43.  Military  rules  and  reg'ulations  are  not  in  a  strict 
sense  a  part  of  the  criminal  law.  Therefore  the  military 
law  or  the  rule  and  regulations  governing  the  military 
state  are  not,  in  a  strict  sense,  a  part  of  the  criminal  law, 
but  a  treatise  on  the  criminal  laws  would  necessarily  be 
incomplete  without  noting  the  principles  which  control 
the  administration  and  enforcement  of  military  disci- 
pline.^ 

The  constitution  of  the  United  States  provides  that 
congress  shall  have  power  to  declare  war,  grant  letters  of 
marque  and  reprisal  and  to  make  rules  concerning  cap- 
tures upon  land  and  water;  to  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  use  shall  be  for  a 
longer  period  than  two  years;  to  provide  and  maintain 
a  navy;  to  make  rules  and  regulations  for  the  govern- 
ment of  the  land  and  naval  forces;  to  call  for  the  militia 
to  execute  the  law^s  of  the  Union,  suppress  insurrections 
and  repel  invasions;  to  provide  for  organizing,  arming 
and  disciplining  the  militia,  and  for  the  governing  such 
parts  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  states,  respectfully,  the 
appointment  of  the  officers.®  The  military  is  subject  to 
law  and  cannot  assume  arbitrary  power.  The  military 
forces  are  not,  however,  under  the  control  of  congress,  but 
under  the  constitution  are  placed  in  the  hands  of  the 
president,  and  it  is  his  power  and  duty  to  govern,  con- 

nient    upon    criminal    process    from  Ev.  467;   McArthur  on  Courts  Mar- 

tlie   state   courts,   when   the   charges  tial,  33-37. 

against    them    is    not    merely    mala  6 — Art.  1  sec.  8,  Con.  U.  S.  Mrs. 

prohibita,    but    mala    in    se.      But  Alexander  Cotton  v.  U.  S.,  2  Wall, 

whether    legislations    of    that    char-  404;  Miller  v.  U.  S.,  11  Wall.  268; 

acter   be   constitutional   or   not,    no  Tiler  v.  Defrees,  11  Wall.  33 ;  Cran. 

intention  to  extend  such  exemption  dell  v.   Nevada,   6  Wall.   25;   U.   S. 

should    be    attributed    to    congress  v.   Sevens,   3  Wh.   336;   Houston  v. 

unless     clearly     manifested     by     its  Moore,   5   Wh.   1 ;    Martin   v.   Moot, 

language."  12  Wh.  19;  Tex.  v.  White,  227;  Lu- 

5 — Kent's    Com.    B41 ;    3    Greenl.  ther  v.   Borden,   7   How.   51. 
C.  L.— 3 


34  Criminal  Law 

trol  and  direct  the  operation  of  the  amiy.'  The  author- 
ity over  the  militaiy  is  placed  by  the  constitution  in  two 
different  departments  of  the  government — the  legislative 
and  the  executive.  As  the  head  of  the  executive  the 
[/resident  is,  under  the  terms  of  the  constitution,  the 
ccmniander-in-chief  cf  the  army  and  navy  of  the  United 
States  and  of  the  militia  cf  the  several  states  when  called 
into  actual  service  of  the  United  States.  By  virtue  of  the 
authority  conferred  upon  the  president  as  commander-in- 
chief  of  the  araiy  and  navy  he  cannot  legally  authorize 
a  military  commission  to  try  crimes  which  may  arise  in 
a  military  district.  So  long  as  the  civil  authorities  are 
able  to  enforce  the  law  the  president,  through  his  subor- 
dinates, cannot  suspend  the  civil  laws  and  extend  over 
the  countrj^  military  authority,  except  where  congress 
grants  the  authority.  It  has  been  decided  by  the  su- 
preme court  of  the  United  States  that  congress  could 
not  confer  upon  the  president,  as  the  commander  of  the 
army  and  na\y,  power  to  try  a  citizen  of  a  state  who  is 
not  connected  with  the  militaiy  service,  and  where  the 
state  of  which  he  is  a  citizen  is  loyal  to  the  government 
and  where  the  courts  are  open  to  try  causes  free  from 
molestation.^ 

§  44.  Military  power  is  inherent  in  every  government. 
The  power  is  sovereign  and  inherent  in  every  govern- 
ment to  protect  itself  against  war,  invasion  and  rebellion, 
and  the  lessons  of  history  being  our  guide,  no  government 
can  safely  abrogate  such  power.  But  purely  arbitrary 
power  in  declaring  martial  law  and,  as  sanctioned  by 
the  ancient  usages  and  customs  of  war  in  Europe,  is 
inimical  to  the  liberties  of  a  free  people.  One  authority 
has  said:     ''The  absolute  supremacy  of  the  civil  law 

7— Art.  2,  sec.  2,  Con.  IT.  S.     Ex  v.  Van  Riswick,  92  U.  S.  202;   Par- 

parte   Williams,    38   IIpw.    308;    Ex  Roud  v.  U.  S.,  13  Wall.  156;  Ilaniil- 

partQ   Garland,   4    Wall.   333;    Arm-  ton  v.  Dillon,  21  Wall.  73. 
Htronfj'H  Foundry,  6  Wall.  766;   U.  8— Ex  parte  v.  Milligan,  4  Wall. 

8.  V.  Kline,  13  Wall.  128;  Wheclock  125. 


Of  the  Militaky  Laws  35 

and  the  subordination  to  it  of  all  military  as  well  as  civic 
authority,  at  all  times  and  at  all  places,  except  where 
courts  are  silenced  by  actual  war,  are  cardinal  prin- 
ciples of  American  as  well  as  English  jurisprudence.  It 
is  an  axiom  in  our  legal  system  that  no  man  is  so  high 
as  to  be  above  the  power  of  the  law,  and  no  man  so  low  as 
to  be  beyond  the  reach  of  its  j)rotecting  arm.  This 
wholesome  doctrine  has  been  often  emphatically  vindi- 
cated by  the  sturdy  independence  of  English  and  Amer- 
ican judges  in  times  of  great  civil  commotion,  when  the 
waves  of  arbitrary  power  were  dashing  high  against  the 
defenses  of  popular  liberty. 

The  framers  of  the  constitution,  fully  aware  of  the 
usages  of  war,  amply  protects  the  people  from  the  en- 
croachments of  the  military  power  by  declaring  that  all 
persons  for  a  capital  or  otherwise  infamous  crime  shall 
be  indicted  by  a  grand  jury;  that  they  be  infoiTiied  of 
the  charge  against  them;  that  they  be  confronted  with 
the  witness  against  them  and  that  they  have  compulsory 
process  for  witnesses  in  their  favor;  that  the  writ  of 
habeas  coitus  shall  never  be  suspended,  except  in  the 
times  of  actual  war  or  invasion  the  public  safety  may 
require  it.  As  to  the  writ  of  habeas  corpus,  a  suspension 
of  the  privileges  of  the  writ  does  not  suspend  the  writ 
itself.  Upon  application  the  writ  in  all  cases  shall  be  is- 
sued as  a  matter  of  right,  and  upon  the  return  the  court 
may  determine  whether  the  applicant  may  proceed  fur- 
ther with  it.® 

§  45.  Of  the  law  martial.  Martial  law,  so  called,  is  but 
an  incident  of  the  military.  Military  law,  as  we  have 
seen,  are  but  the  rules  and  regulations  by  authority  of 
the  state,  for  the  government  of  the  state,  and  the  com- 
mon law  may  be  resorted  to  in  explanation  of  the  stat- 

9 — United    States   v.    Milligan,    4 
Wall.   125. 


36  Ckiminal  Law 

utes,  usages  and  customs  relating  thereto."  As  anciently 
understood  and  applied,  martial  law  is,  however  arbi- 
traiy  in  its  nature  and  essentially  a  one  man's  power, 
since  it  is  the  will  of  the  commanding  general  or  the  one 
in  authority.  It  is  a  law  of  necessity  and  arises  from  the 
urgency  of  the  situation  and  extends  to  all  the  inhab- 
itants of  the  district  sought  to  be  protected.  It  tran- 
scends the  civil  laws  and  for  the  time  punishes  crime  at 
the  will  of  the  militaiy  authority.  The  oldest  and  most 
approved  authorities  held  that  the  law  martial  is  not  a 
law  at  all,  but  is  the  enforcement  of  the  will  of  the  com- 
manding general ;  that  such  will  is  not  subject  to  law,  and 
is,  from  the  nature  of  the  circumstances  authorizing  it, 
in  some  instances  verj^  severe  and  in  all  cases  is  intended 
to  be  expeditious.^^  The  right  to  declare  martial  law  is 
one  of  the  inherent  powers  of  the  state,  but  in  our  country 
is  not  without  restrictions  upon  its  operations.  The  mili- 
tary is  always  subordinate  to  the  civil  laws,  but  some- 
times the  civil  laws  are  overrun,  and  the  civil  authorities 
become  powerless  to  perform  their  legal  functions,  and 
under  such  conditions  the  military  authority  may  declare 
martial  law.  It  takes  the  place  of  the  civil  law  because  the 
usual  means  of  enforcing  obedience  to  the  rights  of  others 
is  destroyed.  In  the  case  of  the  Don*  rebellion  in  the 
state  of  Rhode  Island,  where  Dorr  and  others  undertook 
to  establish  a  different  government  to  the  then  regular 
government,  it  was  declared  by  the  supreme  court  of 
the  United  States  to  be  of  sufficient  urgency  and  necessity 
to  justify  the  enforcement  of  martial  law.  It  was  further 
declared  that  the  state  could  not  establish  a  permanent 
military  goverament,  yet  it  could  use  its  military  aulhoi- 
ity  to  put  down  all  armed  insurrection,  and  that  the  state 
could  deteiTuine  for  itself  the  extent  of  force  necessary  to 

10 — Finlayson    on     Martini    Law  11 — Lutlior  v.  Borden,  7  How.  51. 

Preface   8;    3   Grecnlonf   Evid.   468 
find  authorities. 


Of  the  Militaey  Laws  37 

quell  the  insurrection  and  to  restore  order  and  obedience 
to  its  laws.^^ 

§  46.  Crimes  committed  in  the  army  and  navy.  The  mil- 
itary law  is  independent  of  the  civil  law,  and  all  crimes 
committed  while  engaged  in  the  military  service  are  sub- 
ject to  prosecution  in  the  militarj^  courts.  In  the 
times  of  war,  insurrection  or  rebellion,  larceny,  robbeiy, 
burglary,  arson,  mayhem,  manslaughter,  murder,  assault 
and  battery  with  intent  to  kill,  wounding  by  shooting  or 
stabbing,  with  intent  to  commit  murder,  rape,  or  assault 
and  battery  with  intent  to  commit  rape,  shall  be  pun- 
ished by  the  sentence  of  a  general  court  martial  when 
committed  by  a  person  in  the  militaiy  service  of  the 
United  States,  and  the  punishment  in  any  such  case  shall 
not  be  less  than  the  punishment  for  like  offenses,  by  the 
laws  of  the  state,  territory  or  district  in  which  such  of- 
fense may  have  been  committed.  "When  any  officer  or 
soldier  is  accused  of  a  capital  crime  or  any  offense  against 
the  person  or  property  of  any  of  the  citizens  of  the 
United  States  which  is  punishable  by  the  law  of  the  land 
the  commander  and  the  officers  of  the  regiment,  troop, 
batter}^,  company  or  detachment  to  which  the  person  so 
accused  belongs  are  required,  except  in  the  time  of  war, 
upon  application  made  by  or  in  behalf  of  the  party  in- 
jured, to  use  their  utmost  endeavors  to  deliver  him  over 
to  the  civil  magistrate  and  to  aid  the  officers  of  justice  in 
apprehending  and  securing  him  in  order  to  bring  him  to 
trial.  If  upon  application  any  officer  refuses  or  willfully 
neglects,  except  in  the  time  of  war,  to  deliver  any  such 
accused  person  to  the  civil  magistrate  or  to  aid  the  offi- 
cers of  justice  in  apprehending  him  he  shall  be  dismissed 
from  the  service. ' ' 

The  foregoing  are  the  58th  and  59th  articles  of  war  of 
the  United  States,  and  it  has  been  held  under  the  former, 

12 — Luther  v.  Borden,  7  How.  51. 


38  Criminal  Law 

that  while  the  defendant  was  a  member  of  the  military, 
the  jurisdiction  to  prosecute  was  exclusively  in  the  mili- 
tary courts  for  any  crime  enumerated  in  said  articles.^' 
In  the  latter  it  has  been  held  that  while  a  soldier  in  the 
actual  military  service,  is  within  the  jurisdiction  of  the 
militar}^  authorities  and  can  be  arrested  on  civil  process 
only  in  the  manner  pointed  out  by  the  articles  of  war.  A 
soldier  on  furlough  is  not  within  the  immediate  jurisdic- 
tion of  the  military  authority,  and  may  be  arrested  and 
tried  by  the  state  authorities  for  crimes  committed  while 
on  such  furlough.^* 

§  47.  Of  court  martial.  The  constitution  confers  upon 
congress  the  power  to  provide  the  means  by  which  the 
military  may  enforce  obedience  to  its  rules  and  discipline. 
For  this  purpose  congress  has  created  the  tribunal  of 
court  martial,  in  which  tribunal  all  violations  of  the  mili- 
tary are  tried.^^  These  courts  are  criminal  tribunals, 
with  power  to  inflict  punishment  for  the  violations  of  tlie 
military  laws.  Under  the  articles  of  war  these  tribunals 
have  exclusive  jurisdiction  over  offenses  against  the  mili- 
tary laws,  but  where  the  crime  committed  is  against  the 
civil  law  then  these  have  concurrent  jurisdiction  with 
the  state  courts.^^  While  actually  engaged  in  war,  the 
law  very  justly  extends  exclusive  jurisdiction  to  the  mili- 
tary courts.  Where  the  military  tribunal  has  jurisdiction 
its  judgment,  after  it  has  been  approved  by  the  presi- 
dent or  the  officer  ordering  the  court  martial,  is  con- 
clusive and  cannot  be  reviewed  by  the  courts  of  the  civil 
law.  But  where  the  drlViulaiil  has  been  iniproix'rly  con- 
victed in  a  court  martial,  a  writ  ol'  habeas  corpus  will 
issue  to  the  circuit  or  district  courts  of  the  United 
States  and  if  found  to  be  illegally  held  will  discharge 

]3_('ol,.,n:ui     v.     Tlio     .State  of  If)— Art.    11,   sec.   8,  Const.   U.   S. 

Term.,  07   U.   8.  fjOO.  IG— Dynca    v.    Hoover,    20    How. 

14_Sco  MaHon   v.   U.   S.,   105  U.        0.1. 
S.  G96. 


Of  the  Military  Laws  39 

him."  Says  the  supreme  court  of  the  United  States  in 
Wales  V.  Whitney,  114  U.  S.  564:  ''But  neither  the  court- 
of  the  district  nor  this  court  has  any  appellate  jurisdic- 
tion over  the  naval  court  martial,  nor  over  offenses  which 
such  a  court  has  power  to  try.  Neither  of  these  courts 
are  authorized  to  interfere  with  it  in  the  perforaiance  of 
its  duty  by  way  of  a  writ  of  prohibition  or  any  other  of 
that  nature. ' '  In  England,  however,  writs  of  prohibition 
may  issue  out  of  the  high  court  of  justice  to  courts  mar- 
tial. 

§48.  Who  may  convene  a  court  martial.  The  presi- 
dent has  the  authority  to  convene  a  court  martial,  and 
by  virtue  of  the  articles  of  war  certain  other  officers  have 
the  authority  to  do  so.  Such  courts  must  in  all  cases  be 
convoked  by  proper  authority,  and  in  conformity  to  the 
laws  of  the  United  States.  By  the  power  of  the  constitu- 
tion the  authority  is  inherent  in  the  president  to  convene 
a  court  martial,  when  deemed  necessary  for  the  proper 
discipline  of  the  army,  as  the  commander-in-chief,  inde- 
pendent of  the  authority  conferred  by  the  articles  of  war, 
and  is  not  restricted  therein  to  cases  mentioned.  Other 
officers,  however,  empowered  to  call  a  court  martial  are 
restricted  to  the  provision  of  the  articles  of  war  or  under 
the  orders  of  the  president.^* 

§  49.  As  to  the  territorial  jurisdiction  of  the  military. 

The  military  courts  have  jurisdiction  co-extensive  with 
the  limits  of  the  United  States,  or  to  any  other  place 
where  the  navy  or  army  may  be,  whether  at  home,  abroad 
or  on  the  high  seas.  The  jurisdiction  is  not  confined  to 
the  territorial  limits  of  the  United  States,  but  is  co-ex- 
tens've  with  the  army  and  navy  or  any  part  thereof,  and 

17--Ex  parte  Reed,  100  U    S.  13-  In  re  Davidson,  27  Fed.  Ecp.  618; 

25;    Ex    parte    Mason,    105    U.    S.  Re  Esmon,  5  Moek  (D.  C)  64. 

697;   Wales  v.  Whitney,   114  U.  S.  18— Swaim  v.  United  States,  165 

564;  Barnet  v.  Crane,  16  Vt.-240;  U.  S.  553;  In  re  Grain,  84  Fed.  788. 


40  Cbiminal  Law 

the  orders  and  judgments  of  courts  martial,  for  and  upon 
account  of  the  same  being  rendered  beyond  the  territorial 
jurisdiction  of  the  United  States,  may  not  be  questioned 
because  of  the  lack  of  jurisdiction.  The  trial  of  an  of- 
fender against  the  militaiy  law  may  take  place  at  any 
point  designated  by  the  authorities  and  a  general  court 
may  assemble  there,  although  the  place  may  not  be  con- 
venient to  the  immediate  locality  where  the  offense  was 
committed,  but  for  this  reason,  nor  for  any  other,  may  the 
accused  complain  of  the  place  of  the  convening  of  the 
court.^^ 

§  50.  No  power  in  the  civil  courts  to  review  proceed- 
ing in  a  court  martial  except  for  want  of  jurisdiction. 
The  jurisdiction  of  a  general  court  martial  may  always 
be  inquired  into,  where  such  exceeds  its  authority  and 
undertakes  to  try  and  punish  a  person  not  within  its 
jurisdiction,  by  any  court  of  competent  jurisdiction  of 
the  parties.  Any  such  judgment  rendered  by  a  court 
martial  is  void  absolutely.^"  Neither  the  supreme  court 
of  the  District  of  Columbia  nor  the  supreme  court  of  the 
United  States  have  any  appellate  jurisdiction  over  a 
naval  court  martial  or  any  offense  over  which  the  court 
has  power  to  try.'^^  The  proceedings  and  the  sentence  of 
a  court  martial  having  jurisdiction  of  the  person  accused 
and  of  the  offense  charged  and  acting  within  the  scope  of 
its  lawful  powers  cannot  be  reviewed  or  set  aside  by  the 
civil  courts  for  errors  in  the  admission  of  evidence  or 
other  matters  of  procedure.'^^  AVithin  the  sphere  of  their 
jurisdiction  the  judgments  and  sentences  of  a  court  mar- 
tial are  as  final  and  conclusive  as  those  of  civil  tribunals 
of  last  resort  and  the  only  authority  of  the  civil  courts 

19—1    Winthrops'    Military    Law  20— "Ram-It    v.    TToi)kins,    7    Fed. 

93;   Swaim  v.  U.  S.,  165  U.  S.  553,  312. 

41  L.  cd.  823;  Colciuan  v.  Tennessee,  21— Wales  v.  Whitney,  114  U.  8. 

97    U.   S.    509;    U.   8.   v.    Clark,   31  504;  Swaim  v.  U.  S..  1G5  U.  S.  553; 

Fed.  Rep.  710;  In  re  Naglc,  135  U.  U.  S.  v.  (Jriniley,  137  U.  S.  147. 

a.  1,  34  L.  ed.  55.  22— Swaim  v.  U.  S.,  165  U.  S.  553. 


Of  the  Military  Laws  41 

is  to  inquire  whether  the  military  authorities  are  pro- 
ceeding regularly  w^ithin  their  jurisdiction.  Mere  errors 
of  judgment  or  irregularities  occurring  in  the  trial  of 
the  cause  are  not  subject  to  review  or  to  be  questioned 
in  any  manner.^^ 

§  51.  Conviction  in  the  military  court  no  bar  to  prose- 
cution in  the  state  court  or  in  the  federal  courts.  A  per- 
son convicted  in  militaiy  court  martial  for  a  violation 
of  a  civil  offense  over  which  the  militaiy  courts  have 
jurisdiction  is  not  a  bar  to  a  subsequent  prosecution  in 
the  state  court.  The  general  rule,  however,  is  that  where 
a  court  trying  a  cause  over  which  it  has  jurisdiction  of 
the  person  as  well  as  the  offense,  a  judgment  and  sentence 
therein  will  bar  a  subsequent  trial  in  court  of  concurrent 
powers  and  jurisdiction,  for  the  same  or  a  like  offense 
growing  out  of  the  same  transaction.^*  In  the  case  of 
Mason  v.  United  States,  where  the  defendant,  being  a 
soldier  on  duty,  was  charged  with  a  malicious  attempt  to 
kill  Guiteau,  who  was  a  prisoner  at  the  time,  the  defend- 
ant being  tried  and  convicted  by  a  court  martial  under  the 
provisions  of  sixty-second  article  of  war  and  sentenced  to 
eight  years  in  the  penitentiary,  the  supreme  court  upon 
the  cause  coming  before  it,  held  that  a  general  court  mar- 
tial had  jurisdiction  to  try  him,  notwithstanding  it  was 
against  the  civil  law  as  well.  The  court  further  says  that 
since  the  proper  steps  were  not  taken  to  have  him  pro- 
ceeded against  by  the  civil  authorities  that  it  was  clearly 
the  duty  and  the  power  of  the  military  tribunal  to  assume 
the  jurisdiction,  and  that  the  question  whether  the  de- 
fendant could  be  prosecuted  in  the  civil  tribunals  after 
the  conviction  in  the  military  courts  was  not  necessary 
to  be  decided.     It  was  enough  that  the  military  court 

23— In  Ee  McVey,  23  Fed.  Eep.  145;    Coleman   v.    Tenn.,    97   U.    S. 

878.      See    In    Re    White,    17    Fed.  506;  24  L.  ed.  1118;  In  re  Fair,  100 

Rep.  685.  Fed.  Rep.  149. 

24— State    v.    Rankin,    44    Tenn. 


42  Criminal  Law 

had  jurisdiction  to  proceed  in  the  premises.  But  tlie 
authorities  are  all  one  way  to  the  effect  that  the  prose- 
cution of  the  military  tribunals  is  no  bar  to  a  subsequent 
prosecution  in  either  the  federal  or  state  court  for  the 
same  offense.^^ 

§  52.  International  comity.  International  comity  will 
permit  the  passage  of  a  foreign  army  through  the  ter- 
ritoiy  of  a  friendly  nation,  and  while  such  army  is  in 
course  of  passage  it  is  free  from  interference  of  the  laws 
of  such  state.  The  law  in  this  respect  appears  to  be  the 
same  whether  the  army  is  permitted  to  do  so  upon  the 
express  license  of  such  nation  or  not.  At  least  if  a  for- 
eign army  is  permitted  to  pass  through  a  friendly  coun- 
try, or  to  be  stationed  in  it,  it  is  exempt  from  the  laws 
and  criminal  jurisdiction  of  such  country.  The  army,  so 
long  as  it  is  an  organized  entity,  is  governed  by  its  own 
laws  and  regulations  under  its  code.  So  if  an  army  in- 
vades another  state  it  is  free  from  the  jurisdiction  of  the 
local  laws  of  such  country,  and  has  its  own  jurisdiction 
to  enforce  its  laws.  In  the  case  of  Coleman  v.  the  State 
of  Tennessee  the  court  says  that  if  an  army  marching 
through  a  friendly  countiy  would  thus  be  exempt  from 
its  civil  and  criminal  jurisdiction,  a  fortiori,  would  an 
army  invading  an  enemy's  country  be  exempt.  The 
fact  that  the  war  is  waged  between  two  countries  nega- 
tives the  jDossibility  of  jurisdiction  being  exercised  by  the 
tribunals  of  one  countiy  over  persons  engaged  in  the 
military  service  bi  the  other  for  offenses  committed  while 
in  such  service.  Aside  from  this  want  of  jurisdiction, 
there  would  be  something  incongi'uous  and  absurd  in 
permitting  an  officer  or  soldier  of  an  invading  country 
to  be  tried  by  his  enemy,  whose  countiy  he  has  invaded.'® 

25— Mason   v.    II.    S.,    105    U.    R.        No.     11,711;     U.    S.    v.    CaHliicr,    I 
696,  26  L.  cd.  12i:!;  U.  S.  v.  Clark,       Hu^lics  (U.  S.)   500. 
31  Fed.  Kep.  (1887)  710  Fed.  Cases  26— Coleman     v.     the     State     of 


Of  the  Military  Laws  43 

§  53.  Jurisdiction  is  confined  over  all  persons  in  the 
service.  All  persons  eni>aged  in  the  militaiy  service  are 
subject  to  the  military  tribunals  and  may  be  punished 
in  accordance  with  the  rules  and  requirements  of  the  mili- 
tary law,  whether  he  became  a  member  of  the  service 
voluntarily  or  was  drafted,  or  whether  he  was  called  into 
the  service  as  a  member  of  militia  or  whether  he  belongs 
to  the  navy  as  an  officer  or  as  a  marine  detached  for  mili- 
tary duty  with  the  army.  Members  of  the  state  militia 
are  subject  to  the  military  discipline  provided  by  the 
state  government  when  they  are  in  the  service  of  the 
state  only.  But  when  the  state  militia  is  called  into  the 
service  of  the  United  States,  in  the  case  of  crimes  com- 
mitted, a  court  martial  called  under  the  United  States 
military  laws  has  jurisdiction  over  them.  Every  person 
connected  with  this  branch  of  the  public  service  is  amen- 
able to  the  jurisdiction  which  congress  has  created  for  its 
government,  and  while  thus  serving  surrenders  his  right 
to  be  tried  by  the  civil  courts."  The  judgment  of  a  court 
martial  that  the  accused  belongs  to  the  military  service, 
is  not  such  a  judgment,  as  may  not  be  attacked  and  en- 
quired into  upon  a  writ  of  habeas  coi*pus.  The  question 
of  jurisdiction,  either  over  the  person,  the  subject  mat- 
ter, or  the  infliction  of  punishment  forbidden  by  law, 
though  approved  by  an  officer  having  advisory  powers, 
may  be  enquired  into  in  the  civil  courts  and  proper  relief 
will  be  given.  Jurisdiction  confers  validity  upon  a  judg- 
ment, when  otherwise  regular,  and  may  not  be  ques- 
tioned, but  if  jurisdiction  is  wanting  over  the  person,  or 
subject  matter,  or  the  punishment,  the  judgment  is  ab- 
solutely void.^' 

Tennessee,    97    U.    S.    509;    and    7  28— Dynes    v.    Hoover,    20    How. 

Cranch.  139;  15  Am.  &  Eng.  Encly.  65;    Ex  parte  Eeed,   100  U.   S.   13; 

of  Law,  462.  Ex  parte  McVey,  23  Fed.  Kep.  878. 

27— Ex   parte    Milligan,    4    Wall. 
123. 


44  Criminal  Law 

§  54.  Jurisdiction  attaches  when.  The  authority  of  a 
court  martial  over  an  officer  begins  at  the  time  of  the  ac- 
ceptance of  his  commission  and  continues  till  his  death 
or  discharge,  or  until  his  resignation  is  accepted;  with  a 
common  soldier  it  begins  at  the  time  of  his  enlistment 
and  ends  with  his  death  or  discharge.^^  In  the  case  of 
the  militia  it  is  well  settled  by  a  decision  of  the  supreme 
court  of  the  United  States  that  the  authority  of  a  court 
martial  does  not  begin,  under  the  articles  of  war,  until 
the  arrival  at  the  place  of  rendezvous.  In  this  connection 
it  was  further  decided  that  a  militia  man  who  refused  to 
respond  to  the  order  of  the  president  to  march  to  the  ap- 
pointed place  of  rendezvous  might  be  tried  and  convicted 
in  a  court  martial  under  the  jurisdiction  of  the  state. 
The  question  particularly  decided  in  this  case  was  that 
the  act  of  congress,  1795,  did  not  grant  exclusive  juris- 
diction of  court  martial  to  the  United  States  upon  the 
refusal  of  a  militia  man  to  respond  to  the  call  of  the 
governor  on  the  requisition  of  the  president,  but  affirma- 
tively decided  that  a  state  may  assume  a  jurisdiction  for 
the  purpose  of  trying  such  offenders  by  state  court  mar- 
tial, but  such  a  judgment  would  not  bo  a  bar  to  a  subse- 
quent trial  in  a  court  martial  under  the  act  of  congress. 
It  is  further  decided  that  a  militia  man  who  refuses  to 
obey  the  call  of  the  president  *'Is  not  employed  in  the 
service  of  the  United  States"  and  for  that  reason  cannot 
be  subject  to  a  court  martial  under  the  articles  of  war, 
but  is  liable  under  the  fifth  section  of  the  same  act.  The 
main  reason  is  that  at  the  time  a  militia  man  who  refuses 
to  respond  to  the  orders  of  the  president  is  not  employed 
in  the  service  of  the  United  States  until  he  goes  to  the 
phice  of  appointed  rendezvous  and  who  by  this  affinua- 
tive  act  places  himself  witliin  the  jurisdiction  of  tlie  mili- 
tary power  of  the  United  States. ^° 

29— Tvlcr  V.  Ponicroy,  8  Allen  Martin  v.  Mott,  12  Wli.  10;  Com. 
(Mass.)    480,  v.  Cuahing,  11  Mass.  7;  Whitemore 

30— Houston  V.  Moore,  5  Wh.   1 ;        v.  Ranlmrn,  8  Me.  310. 


Of  the  Military  Laws  45 

§  55.  Who  is  subject  to  military  duty.  Every  able 
bodied  male  citizen  of  the  respective  states,  resident 
therein,  who  is  of  the  age  of  18  years  and  under  the  age 
of  45  years,  shall  be  enrolled  in  the  militia.^^  In  addition 
to  the  power  to  raise,  support  and  regulate  armies,  con- 
gress is  vested  by  the  constitution  with  the  power  to  pro- 
vide for  the  organizing,  arming  and  disciplining  the 
militia  and  for  calling  them  into  the  service  of  the  United 
States  to  execute  the  laws  of  the  Union,  to  suppress  in- 
surrection and  to  repel  invasions,  and  for  governing 
them  when  employed  in  the  national  service.  Under  this 
power  congress  has  the  exclusive  power  to  determine  who 
shall  constitute  the  militia,  and  all  persons  coming  in  the 
class  designated  by  congress  become  members  of  the 
militia  independent  of  any  act  of  their  own.^^  All  persons 
within  the  qualifications  of  militia  men  are  to  be  enrolled 
and  after  the  notification  provided  by  the  state  laws  of 
their  enrollment  in  the  militia,  become  members  of  the 
same,  and  are  thereby  placed  under  the  rules  and  disci- 
pline of  the  military  and  may  be  tried  for  the  violation 
of  military  rules  by  a  court  martial,  either  according  to 
the  state  or  the  federal  laws,  as  the  case  may  be. 

§  56.  State  militia  under  supervision  of  United  States 
when.  The  organization  and  constitution  of  the  militia  is 
under  the  supervision  of  the  states  governments  until  it 
is  actually  called  into  the  service  of  the  United  States. 
The  state's  authority  over  the  militia  comes  to  an  end 
at  the  point  the  federal  government  begins.  The  power 
rests  with  the  state  to  control  the  militia  until  needed  for 
the  national  service.  The  militia  organized  by  the  state 
is  not  a  part  of  the  standing  army  of  the  United  States, 
nor  can  it  in  any  sense  be  regarded  as  troops,  but  are  the 

31— Eev.    Stat.    U.    S.,    sec.    1625.        (Mass.)    64;    Tyler    v.    Pomeroy,    S 
32— Art.    1,    sec.    80,    16    Const.       Allen  (Mass.)  480. 
U.  S.  Opinion  of  Justices,  14  Gray. 


46 


Criminal  Law 


active  militia — a  legally  aiTQed  force  subject  to  the  call 
of  the  governor  to  enforce  the  laws,  to  suppress  insur- 
rections and  to  repel  invasions  of  the  state.^^ 


33 — In  the  case  of  Houston  v. 
Moore,  5  Wh.  1,  the  court  says: 
*'So  long  as  the  militia  are  acting 
under  the  military  jurisdiction  of 
the  state  to  which  they  belong,  the 
power  of  legislation  over  them  are 
concurrent  in  the  general  and  state 
governments.  Congress  has  no  power 
of  organizing,  and  disciplining  them 
and  this  power  being  unlimited,  ex- 
cept, in  two  particulars,  of  officering 
and  training  them  according  to  the 
discipline  provided  by  congress.   But 


as  state  militia,  the  power  of  the 
state  governments  to  legislate  on  the 
same  subjects,  having  existed,  prior 
to  the  formation  of  the  constitution, 
and  not  having  been  prohibited  by 
that  instrument  it  remains  with  the 
state  subordinate,  nevertheless,  to 
the  paramount  law  of  the  land,  op- 
erating upon  the  same  subject.  It 
is  conceded  that  when  called  into 
service  of  the  United  States,  the 
authority  is  in  the  general  govern- 
ment exclusively. ' ' 


CHAPTER  IV 

INTEENATIONAL  LAW  AS  AFFECTING  CRIMES 

§  57.  Offenses  against  nations.  §  66.  Slave  trade. 

§  58.  International  law.  §  67.  Ambassadors. 

§  59.  Each  nation  is  sovereign.  §  68.  Surrender    of    fugitives    from 
§  60.  Committee  of  nations.  justice. 

§  61.  Allegiance  of  the  citizen.  §  69.  Between  the  states. 

§  62.  Of  piracy.  §  70.  Trial  for  crime  other  than  the 
§  63.  Jurisdiction.  crime  extradited. 

§  64.  Laws  of  the  United  States. 
§  65.  The  laws  of  the  United  States 
as   to    foreigners. 

§  57.  Offenses  against  nations.  It  shall  not  be  our  pur- 
pose to  enter  into  the  discussion  of  international  law  ex- 
cept so  far  as  it  is  connected  with  the  principles  of  the 
criminal  law.  We  shall  incidentally  refer  to  the  law  of 
nations  in  a  subsequent  chapter  on  the  jurisdiction  of 
the  courts  in  the  apprehension  and  trial  of  offenders. 
Our  present  discussion  is  divided  and  subdivided  as  fol- 
lows: (1)  Offenses  against  the  laws  of  nations.  (2)  Of 
the  exemption  of  certain  classes  of  persons  from  the  laws, 
both  civil  and  criminal,  whilst  resident  abroad.  (3)  Of 
those  persons  who,  charged  with  crime  in  one  country, 
escape  into  the  jurisdiction  of  another.  It  is  a  general 
rule  that  all  persons  who  reside  in  or  who  are  temporarily 
in  the  territorial  jurisdiction  of  a  state  are  subject  to  the 
laws  of  that  state.  As  a  general  rule,  a  foreigner  or 
an  alien  cannot  claim  exemption  from  responsibility  to 
the  laws  of  the  countiy  where  he  may  reside  or  where 
he  may  temporarily  be,  because  he  holds  citizenship  in 
and  owes  allegiance  to  another  state.  There  are,  how- 
ever, exceptions  to  these  general  rules,  of  which  we  shall 
touch  in  subsequent  pages.* 

1 — Kent  Com.  36;  People  v.  Mc- 
Herd,  37   American  Decisions,  415. 

47 


48  Criminal  Law 

§  58.  International  law.  International  law  or  the  law 
which  governs  the  relations  of  nations  to  each  other, 
is,  in  a  sense,  a  part  of  the  criminal  law.  We  mean  by 
this  that  the  duties  and  obligations  of  one  nation  to  an- 
other, as  sovereign  and  independent  nationalities  are 
founded,  in  reason,  upon  the  same  principle  as  are  the 
duties  and  obligations  of  one  person  to  another.  The 
criminal  law,  however,  in  the  nature  of  things,  cannot  be 
applied  by  one  nation  to  another.  But  when  one  nation 
offends  another  by  violating  the  laws  of  nations,  it  may 
become  an  act  of  war.  At  this  time  the  proposition  before 
the  people  of  the  United  States  is  that  the  League  of  Na- 
tions, as  signed  at  Paris  in  1919,  be  adopted  for  the  pur- 
pose of  governing  nations  by  rules  of  specific  agreements 
of  all  the  nations  which  have  force  of  law.  If  this  pact 
is  adopted  by  the  nations  international  law,  as  hereto- 
fore understood,  in  a  great  part  shall  become  obsolete, 
and  a  new  era  shall  be  marked  in  the  march  of  civiliza- 
tion as  the  legitimate  offspring  of  the  greatest  cataclysm 
of  the  world. 

§  59.  Each  nation  is  sovereign.  A  state  is  sovereign 
when  it  is  independent  and  free  from  the  control  of  any 
superior  power.  International  laws  consist  in  those  rules 
of  right  and  comity,  dictated  by  the  laws  of  nature.  A 
nation,  being  an  aggregation  of  individuals  bound  to- 
gether by  the  laws  of  necessity  for  mutual  protection,  has 
all  the  rights  of  defense  that  an  individual  would  have 
in  a  mere  state  of  nature.  The  same  laws  that  would  jus- 
tify one  individual  in  protecting  his  person  or  his  prop- 
erty from  the  encroachments  of  another  would  justify  a 
nation,  considered  as  an  entity.  It  is  ini])()ssiblo,  in  the 
nature  of  things,  to  have  a  system  of  international  laws 
based  upon  any  other  considerations  than  those  of  nat- 
ural justice,  found  by  the  laws  of  nature  and  experience 
to  be  due  one  nation  to  another.  Any  of  tliese  intenia- 
tional  rights  are  common  to  all  nations  and  recognized  by 


International  Law  as  Affecting  Crimes  49 

each.  There  are  others  which  are  special  or  particular 
and  are  enforceable  only  between  the  nations  particu- 
larly interested.  And  these  are  such  as  are  derived  from 
special  contracts  and  treaties. 

§  60.  Comity  of  nations.  Therefore  comity  of  nations 
should  be  characterized  by  justice,  honesty  and  fairness. 
It  is  apparent  that  all  nations  have  the  undisputed  right 
to  protect  themselves,  the  lives  and  property  of  their 
citizens,  from  the  interference  of  other  nations.  All  in- 
dependent and  sovereign  states  are  equal  in  the  sight 
of  the  law\  The  rights  of  each  are  not  estimated  by 
their  importance  in  the  family  of  nations,  their  territo- 
rial extent  or  their  importance  in  any  other  respect. 

§  61.  Allegiance  of  the  citizen.  All  persons  are  sup- 
posed to  owe  allegiance  to  some  government,  and  that, 
in  return,  the  government  of  which  they  are  citizens  owes 
them  a  corresponding  obligation  of  protection.  This 
means  that  their  lives,  property  and  personal  safety 
shall  be  protected  by  the  government,  so  long  as  they  do 
nothing  to  forfeit  their  citizenship,  and  when  occasion 
arises  may  demand  redress  of  other  nations  for  any  in- 
jury to  them.  So  this  takes  us  to  the  discussion  of  those 
crimes  which  are  punished  by  all  nations. 

§  62.  Of  piracy.  This  is  an  offense  against  the  laws  of 
nations.  It  may  be  punished  by  the  infliction  of  death, 
with  reference  to  the  laws  of  the  nation  to  which  the 
accused  may  owe  allegiance.  Correctly  speaking,  a 
pirate  is  not  a  citizen  of  any  country — he  is  an  enemy 
of  all  mankind  and  cannot  claim  protection  from  any 
government.  Each  nation  has  the  right  to  tiy  and  con- 
vict any  one  guilty  of  piracy  according  to  its  own  laws. 
He  is  an  universal  outlaw  upon  which  every  community 
may  lay  its  hands.  Says  Dr.  Brown:  ''Piracy  is  dep- 
redation without  authority  from  any  prince  or  state,  or 
c.  L.— 4 


50  Criminal  Law 

transgression  of  authority  by  despoiling  beyond  its 
warrant."  Unlawful  depredation  is  of  the  essence  of 
piracy.^  Says  Beawers:  "A  pirate  is  a  sea  thief,  or  an 
enemy  of  humankind;  also  aims  at  enriching  himself  by 
marine  robberies,  committed  either  by  force,  or  fraud,  or 
surprise,  on  merchants  or  other  traders  at  sea."^  Mar- 
shall says:  ''The  crime  of  piracy  is  robbeiy  on  the  high 
seas,  is  an  offense  against  the  universal  law  of  society." 
Sir  Leoline  Jenkins  says :  ' '  They  are  outlaws  as  I  might 
say  by  the  laws  of  nations:  This  is  out  of  the  protection 
of  princes  and  all  laws  whatever.  Eveiybody  is  com- 
missioned and  aimed  against  them  as  rebels  and  traitors 
to  subdue  and  rout  them  out.  That  which  is  called  rob- 
beiy upon  the  highway,  the  same  is  called  piracy  upon 
the  high  seas." 

§  63.  Jurisdiction.  Piracy  comes  within  the  jurisdic- 
tion of  all  nations.  It  of  course  seems  to  be  in  accord 
with  common  justice  that  not  more  than  one  nation  may 
have  jurisdiction  over  the  same  act.  The  doctrine  of 
auter  fois,  acquit  or  convict,  would  be  a  good  defense 
upon  a  subsequent  trial  by  another  nation.*  The  con- 
stitution of  the  United  States  provides  that  congress 
shall  have  power  to  punish  piracies  and  otlier  felonies 
committed  on  the  high  seas,  and  offenses  against  the  laws 
of  nations.  The  several  States  of  the  United  States  have 
jurisdiction  over  the  crime  of  piracy.  While  the  con- 
stitution has  not  in  express  terms  prohibited  the  states 
from  passing  laws  against  piracy,  yet  the  relations  of 
the  states  to  the  federal  govermncnt  take  from  the  states 
the  general  jurisdiction  to  punish  such  a  crime.  The 
several  states  are  not  nations,  but  only  a  ])art  of  the 
nation  of  the  United  States  of  America,  and  would  not 

2—2   Civil    and    Adm.    Law,  4G1-           4— U.    S.   v.    Smifh,    5   Wh.    153; 

462.  U.  S.  V.  FiM-loiiR,  5  Wh.  184;   U.  S. 

3— U.   S.   V.    Pirates,   5   Wli.  181,        v.    Pirates.    S    Wh.    189;    U.    S.    v 

U.  S.  Rep.  18  21  page  62,  Baker,  5  Blatch.  6. 


Internatioxal  Law  as  Affecting  Crimes  51 

have  jurisdiction  of  the  crime,  even  if  committed  in  the 
bays,  estuaries  or  arms  of  the  sea  within  the  jurisdiction 
of  the  state.  Any  offense  committed  against  the  laws  of 
the  states  which  grew  out  of  the  piracy,  such  as  murder, 
robbery  and  the  like,  it  seems  might  be  punished  by  the 
state  laws. 

§  64.  Laws  of  United  States.  The  act  of  congress  April 
30,  1790,  section  8,  is  in  words  as  follows:  **Be  it 
enacted  that  if  any  person  or  persons  shall  commit  on 
the  high  seas  or  in  any  river,  haven,  basin  or  bay  out  of 
the  jurisdiction  of  any  particular  state,  murder  or  rob- 
beiy  or  any  other  offense,  which  if  committed  within  the 
body  of  the  countiy  would  by  the  laws  of  the  United 
States  be  punishable  with  death:  or  if  any  captain  or 
mariner  of  any  ship,  or  other  vessel,  shall  piratically  or 
feloniously  run  away  with  such  ship  or  vessel,  or  any 
goods  or  merchandise,  to  the  value  of  fifty  dollars,  etc., 
shall  be  deemed  taken  and  adjudged  a  pirate  and  felon, 
and  being  therefor  convicted,  shall  suffer  death."  The 
United  States  supreme  court  held  that  the  crime  of  rob- 
bery committed  by  a  person  on  the  high  seas,  or  on  board 
of  any  ship  or  vessel  belonging  exclusively  to  subjects 
of  a  foreign  state,  or  persons  within  a  vessel  belonging 
exclusively  to  subjects  of  a  foreign  state,  is  not  piracy 
within  the  true  intent  and  meaning  of  such  act.^  Said 
section  is  also  held  to  extend  to  all  persons  on  all  ves- 
sels which  throw  off  their  national  character  by  cruis- 
ing piratically,  and  committing  on  other  vessels  that  gen- 
eral piracy  or  murder  or  robbery  (committed  in  the  places 
described  in  said  act)  by  persons  on  board  a  vessel,  not 
at  the  time  belonging  to  any  foreign  power,  but  in  the 
possession  of  a  crew  acting  in  defiance  of  all  law,  and 
acknowledging  obedience  to  no  government  whatever,  is 
w^ithin  the  true  meaning  of  this  act,  and  is  punishable  in 

5— U.  S.  Calmer  v.  U.  S.,  3  Wh.  144;  V.  S.  v.  Furlong  et  al.,  5 
Wh.    610;    U.    S.    V.    Klintock,    5       Wh.  182. 


52  Chimin AL  Law 

the  courts  of  the  United  States.    A  vessel  loses  its  na- 
tional character  by  engaging  in  piratical  conduct. 

§65.  Laws  of  United  States  as  to  foreigners.  The 
court  also  held  that  under  the  eighth  section  of  the  act  of 
1790,  that  murder  committed  upon  a  foreignev  by  a 
foreigner,  upon  the  high  seas,  would  not  come  within  the 
jurisdiction  of  the  courts  of  the  United  States ;  but  further 
held  that  the  courts  of  this  countiy  would  have  jurisdic- 
tion over  murder  committed  upon  an  American  citizen, 
although  at  the  time  engaged  in  foreign  service.  Piracy 
being  an  offense  against  all  nations  is  punishable  by  all, 
whether  upon  its  own  citizens  or  upon  citizens  of  other  na- 
tions. Chief  Justice  Marshall,  in  the  case  of  United  States 
v.  Panner,  argues  that  the  constitution  having  conferred 
on  congress  the  power  of  defining  and  punishing  joiracy, 
that  there  could  be  no  doubt  of  the  power  of  congress  to 
enact  laws  punishing  piracy,  although  they  be  foreigers, 
and  may  not  have  committed  any  particular  act  or  offense 
against  the  laws  of  the  United  States.  But  the  juris- 
diction of  the  United  States  did  not  extend  over  foreign- 
ers in  a  foreign  vessel.  This  section  of  the  act  of  1790 
has  been  carried  into  the  statute  of  1874,  section  5372. 
Repealed  §  1777,  P.  C.  341.  Congress,  however,  leaves 
the  jurisdiction  in  the  hands  of  the  nation  whose  citizen 
is  accused.  The  effect  of  these  American  decisions  is  that 
any  nation  may  by  statute  make  any  offense  committed 
upon  the  high  seas,  in  its  own  vessels,  piracy,  and  that  it 
has  exclusive  jurisdiction  to  tiy  and  punish  the  same.^ 

§  66.  Slave  trade.  The  importation  and  trade  of  slaves 
is  an  offense  against  the  hiws  of  nations.  History  con- 
firms the  custom  of  owning  property  in  human  beings — 
in  both  ancient  and  mo(hM-n  times.  By  a  common  con- 
sent among  all  nations,  until  n  comparatively  recent  pe- 

(»— I'aniior  v.  U.  S.,  ;;  Wli.  01 U; 
U.  S.  V.  I'irutcs,  5  Wli.  iHt;  I'.  S. 
V.  Smith,  5  Wli.    144. 


International  Law  as  Affecting  Crimes  53 

riod,  it  has  been  in  perfect  accord  with  sound  morality 
and  notions  of  justice  for  one  man  to  hold  ownership  in 
another.  At  this  time  most  nations  in  Christendom  look 
upon  ownership  in  men  as  the  most  outrageous  of  crimes 
— a  universal  crime,  punishable  by  all  nations  as  a  vio- 
lation of  national  laws,  independent  of  treaties  and  stat- 
utes. There  are  treaties  in  all  nations,  however,  in  Europe 
and  America,  which  prohibit  the  dealing  in  or  importation 
of  slaves.  Now  that  the  greatest  iniquity  that  ever  dis- 
graced the  human  family  has  been  suppressed,  we  realize 
its  evil.  Our  own  country  and  we  believe  all  Christian 
countries  have  ample  statutes  punishing  ownership  in 
men  and  the  strides  in  civilization  has  left  behind  it  this, 
the  greatest  relic  of  cruelty  and  barbarism.  With  this 
security  for  the  frontispiece  of  the  twentieth  century, 
who  would  venture  to  predict  the  possibilities  of  the 
future.  It  is  useless  to  pursue  this  subject  further,  since 
it  is  now  so  universally  abhorred  and  punished,  when 
committed,  that  as  a  crime  it  has  become  almost  extinct.' 

§  67.  Ambassadors.  Modern  political  usage  as  well  as 
the  common  law  has  built  up  a  custom  among  nations  to 
establish  resident  representatives  at  the  seat  of  govern- 
ment of  other  nations,  whose  duty  it  is  to  represent  such 
nation,  in  all  questions  of  international  nature.  The  term 
ambassadors  may  in  a  general  way  apply  to  all  repre- 
sentatives of  a  government,  resident  or  abroad.  It  is  now 
a  settled  principle  of  public  law  that  such  persons  are  by 
a  fiction  of  law  considered  within  the  jurisdiction  of  their 
respective  governments,  and  are  exempt  from  the  opera- 
tion of  the  government  to  which  they  are  accredited. 
It  is  also  a  well  recognized  principle  of  public  law  that 
it  is  a  breach  of  public  duty  for  such  ambassadors  to  be 
injured  in  their  person  or  property. 

7— Vol.  II  Am.  &  Eng.  Eney.  of 
Law,  1492;  See  Vattels  Law  of 
Nations;  1  Kent's  Com.  99. 


54  Ceiminal  Law 

§  68.  Surrender  of  fugitives  from  justice.  The  third 
subdivision  of  our  discussion  of  international  laws  in- 
volves the  question  of  the  surrender  by  one  govermnent 
to  another  of  any  person  domiciled  therein  who  is 
charged  with  a  criminal  violation  of  the  laws  of  such 
other  government.  The  authorities  are  indeed  very 
conflicting.  Many  authorities  hold  that  it  is  the  duty 
of  every  government  to  withhold  an  asylum  to  fugitives 
from  other  governments.  Others  that  there  is  no 
obligation  upon  one  government  to  deliver  any  person 
who  has  been  permitted  to  become  domiciled  therein, 
to  another  jurisdiction  for  trial  for  a  crime  charged  to 
have  been  committed  therein.®  In  view  of  the  high 
authorities  involved  in  these  conflicting  views,  the 
statement  may  be  ventured,  that  no  such  rule  of  public 
law,  in  the  absence  of  extradition  treaties,  is  rec- 
ognized among  nations.  In  crimes  of  great  aggravation 
— crimes  mala  in  se — demand  that  all  persons  charged  in 
a  foreign  nation  should  be  surrendered  in  order  that  they 
might  be  tried  in  accordance  with  the  law  of  the  country 
where  the  offense  was  committed,  yet  while  there  are 
many  reasons  which  would  warrant  the  surrender  in  such 
cases,  yet  such  is  not  believed  to  be  the  law. 

§  69.  Between  the  states.  Under  the  provisions  of  the 
Constitution  of  the  United  States,  ''any  person  charged 
witli  treason,  felony  or  other  crime,  who  shall  flee  from 
justice  and  be  found  in  another  state,  shall  upon  the  de- 
mand of  the  executive  of  the  state  from  which  he  lied,  be 
delivered  up,  to  be  removed  to  the  state  having  jurisdic- 
tion of  tlie  crime."  It  has  l)ecn  held  by  the  supreme 
court  of  the  United  States  tliat  treasons,  felonies  and 
other  crimes  include  all  crimes  made  punishable  by  the 
laws  of  the  state,  whether  treasons,  felonies  or  misde- 

9 — 4    Johns.    Ch.     lOG;     Coin.     v.        v.    .Jcnisnn,    14    Pot.    .140;    Kx    ii:irt(> 
Deacon,   10   Ser^.   &   R.    125;    U.   S.        Holmes,   12   Vt.  0.11. 
V.    Davis,    2    Sumner    486;    Ilolnies 


International  Law  as  Affecting  Crimes  55 

meanors.  This  provision  of  the  constitution  confers  upon 
the  executive  of  the  state  the  absolute  right  to  demand 
of  another  state  any  person  who  has  escaped  into  its 
borders,  to  be  delivered,  upon  the  presentment  to  the 
executive  authority  of  such  state,  proper  evidence  of  the 
fact  that  he  is  charged  with  crime.  The  proof  may  be 
in  the  nature  of  an  affidavit  or  indictment,  or  in  any  other 
manner  required  by  law,  in  the  state  from  which  such 
person  fled.  But  the  question  whether  such  affidavit,  in- 
formation or  indictment  is  sufficient  in  law  cannot  be  de- 
termined by  the  executive.  Such  question  is  for  the 
courts,  from  which  such  person  fled.  There  is  a  moral 
obligation  upon  the  several  states  to  grant  the  surrender 
of  such  persons  as  shall  be  demanded  of  another  state. 
But  upon  the  refusal  of  any  state,  through  its  governor, 
to  grant  such  surrender,  there  is  no  authority  in  the 
United  States  to  compel  compliance  with  the  provisions 
of  the  constitution.  The  governor  upon  whom  the  de- 
mand is  made  is  not  authorized  to  look  beyond  the  proof 
that  the  person  sought  to  be  apprehended  is  improperly 
or  unlawfully  charged.  He  cannot  enter  into  the  ques- 
tion of  innocence  or  guilt,  but  his  duties  are  purely  min- 
isterial and  not  judicial.  If  he  is  satisfied  from  the 
face  of  the  paper  submitted  that  such  person  stands 
properly  charged  in  another  state,  it  becomes  his  duty 
to  grant  his  surrender.^** 

§  70.  Trial  for  crime  other  than  for  the  crime  extra- 
dited. The  rule  is  well  established  that  no  foreign  state, 
as  a  matter  of  right,  can  demand  of  another  nation  that 
it  deliver  up  fugitives  finding  asylum  there.  Each  sov- 
ereignty may  for  itself  determine  whether  it  will  grant 
or  deny  a  fugitive  asylum  within  its  territory.  The  right 
of  asylum  may  be  granted  where  there  is  no  treaties  pro- 

10— state  of  Ky.  v.   Denison,   2-^   collated.    See  also   3   Vroom,   32  N. 
How.  66-110-65  U.  S.  717,  16  L.  ed.       J.  L.  141. 
717  and  note  where  authorities  are 


56 


Crimixal  Law 


liibiting  it,  and  may  be  denied  at  the  option  of  the  sov- 
ereignty. There  appears  to  be  a  considerable  conflict  of 
the  authorities  whether,  where  a  person  has  been  ex- 
tradited and  brought  back  into  the  state  for  trial  upon 
a  specific  offense,  the  court  has  jurisdiction  to  try  him 
for  Climes  committed  prior  to  his  flight  from  the  state, 
other  than  the  crime  for  which  he  was  extradited.  The 
weight  of  the  authorities,  it  is  believed,  sustains  the  view 
that  he  may.  That  it  is  immaterial  how  he  was  brought 
back.  He  may  be  made  to  submit  to  the  jurisdiction." 
This  rule,  however,  is  only  applicable  as  between  the  state 
and  the  United  States  and  the  states  themselves.  Where 
the  defendant  is  extradited  from  a  foreign  state,  he  can- 
not legally  be  proceeded  against  except  for  a  specific 
offense  named  and  included  in  the  treaty.^''  So,  where 
the  defendant  has  been  kidnapped  and  carried  back  to 
the  state  of  the  crime  the  jurisdiction  is  complete.^' 


11— Horn  V.  State,  4  Tex.  App. 
45;  State  v.  Eoss,  21  Iowa  467; 
State  V.  Stewart,  60  Wis.  587,  19 
N.  E.  429;  Waterman  v.  State, 
116  Ind.  51,  18  N.  E.  63;  Kerr 
V.  People,  110  111.  627;  People  v. 
Cross,  135  N.  Y.  536,  32  N.  E. 
246;  Harland  v.  Territory,  3  Wash- 
ington Terr.  131;  Kerr  v.  Illinois, 
119  U.  S.  436;  Mahone  v.  Justice, 
127  U.  S.  700;  Cook  v.  Gart,  146  U. 
S.  183;  State  v.  Patterson,  22  S.  W. 
(Mo.)    696. 


12— Laccellers  v.  State,  16  N.  E. 
945;  U.  S.  V.  Kasher,  119  U.  S. 
407;  Ex  parte  Foss,  21  Am.  St. 
Rep.  181,  102  Cal.  347. 

13— State  V.  Hall,  40  Kans.  338, 
19  Pac.  918;  Ex  parte  McKnight. 
28  N.  E.  (Ohio)  1034;  Cannon's 
Case,  47  Mich.  481 ;  Mahone  v.  Jus- 
tice, 121  U.  S.  700,  8  Sup.  Ct.  Rep. 
1204. 


CHAPTER  V 


JUEISDICTION 


71.  Territorial      jurisdiction      of        §    86. 

the  United  States. 

72.  Every    nation    has    jurisdie-        §    87. 

tion   over  the  high   seas. 

73.  United    States    has    jurisdie-        §    88. 

tion    of    piracy    over   high 
seas. 

74.  Maritime      and      admiralty        §    89. 

jurisdiction. 

75.  Out  of  the  jurisdiction  of  any 

particular   state.  §    90. 

76.  State  and  counties  bordering 

on  sea  coast. 

77.  Criminal      offenses      of      the       §    91. 

United   States,   in   the   cir- 
cuit  and  district  courts. 

78.  The  jurisdiction  of  the  state       §    92. 

is    commensurate    with    its 
boundaries. 

79.  Of     the     validity     of     judg-       §    93. 

ments. 

80.  Judgment  in  court  of  general        §    94. 

jurisdiction.  §    95. 

81.  A  judge  has  no   jurisdiction 

to   render  judgment   where        §    96. 
interested. 

82.  Consent     of     parties     cannot        §    97. 

confer  jurisdiction. 

83.  Courts    must    be    held    where        §    98. 

law  provides. 

84.  Courts    of    concurrent    juris-        §    99. 

diction.  §  100. 

85.  As  to   superior  and   inferior       §  101. 

courts. 


Presumption  of  courts  of 
record,   judgments   of. 

Jurisdiction  conferred  ])y 
constitutions   and   laws. 

Courts  have  no  jurisdiction 
over  mere  political  ques- 
tions. 

State  courts  have  no  jurisdic- 
tion places  ceded  to  United 
States. 

Generally  courts  may  not  in- 
terfere in  the  perform- 
ance  of  duties  of  officers. 

Larceny  jurisdiction  of  at 
common  law,  as  to  differ- 
ent counties. 

Difference  of  larceny  com- 
mitted in  foreign  state, 
and  state  of  Union. 

Jurisdiction  as  to  larceny, 
continued. 

Continued. 

Jurisdiction  as  to  conspira- 
cies. 

Jurisdiction  of  homicide  on 
border   state. 

Jurisdiction  as  to  false  pre- 
tenses, cheats,  etc. 

Where  a  crime  is  committed 
in  two  jurisdictions. 

Same,  continued. 

Same,  continued. 

Same,  continued. 


§  71.  The  territorial  jurisdiction  of  the  United  States. 
The  jurisdiction  extends  a  marine  league  from  the  sea 
shore,  along  the  western  coast  of  the  Atlantic  ocean, 

57 


58  Ckiminal  Law 

from  New  Bmnswick  to  Florida  bay,  and  along  the 
northern  coast  of  the  Gulf  of  Mexico,  from  Florida  bay 
to  the  mouth  of  Rio  Grande  river;  along  the  eastern 
coast  of  the  Pacific  ocean  from  the  northern  boundary 
of  Lower  California  north  to  the  strait  of  Georgia,  and 
along  the  whole  extent  of  the  Alaskan  coast,  compris- 
ing many  miles  of  sea  boundary;  also  the  islands  com- 
prising the  Hawaiian  group  of  islands  and  what  is 
known  as  the  Philippine  islands  and  Porto  Rico.  The 
territorial  jurisdiction  of  any  given  state  possessing  a 
sea  coast  extends  outward  into  the  ocean  a  marine 
league,  supposed  to  be  the  distance  of  a  cannon  shot  from 
shore.  The  most  approved  authorities  on  public  law  base 
the  rule  upon  the  presumption  of  a  physical  fact,  and 
its  object  was  to  afford  as  great  a  degree  of  security  to 
the  inhabitants  as  possible  against  the  attacks  of  other 
nations,  who  in  the  absence  of  the  rule  could  readily 
harbor  hostile  ships  under  the  very  walls  of  a  city.  The 
rule  is  founded  upon  the  dictates  of  natural  justice,  for 
at  the  time  of  its  adoption  by  the  nations  as  a  rule  of 
comity  it  in  reality  afforded  substantial  protection 
against  the  secret  attack  of  a  belligerent.  Under  the  con- 
ditions existing  at  the  time  of  its  adoption  its  wisdom 
is  apparent,  but  at  this  time  when  the  character  of  the 
navies  has  been  so  greatly  changed  and  the  propelling 
force  of  explosives  has  been  so  greatly  improved,  the 
reason  for  the  rule  is  greatly  impaired.^ 

§  72.  Every  nation  has  jurisdiction  over  the  high  seas. 
Every  nation  has  jurisdiction  over  the  high  seas  for  the 
purpose  of  commerce  and  fisheries,  and  no  one  nation  has 
exclusive  right  or  jurisdiction  over  the  seas  to  the  ex- 
clusion of  others.  It  is  a  well  settled  rule  of  public  law 
that  IK)  nation  can  assume  exclusive  dominion  over  the 
liigh  seas.  All  nations  are  entitled  to  use  these  free 
for  the   puri)ose   of  navigation,   connnerce   and   fishing. 

1—1  Kent 'a  Com.  2G. 


Jurisdiction  59 

Tlicy  are  also  entitled  to  dominion  over  the  arms  of  the 
sea,  bays  and  inlets,  suitable  for  navigation.  Every  na- 
tion has  the  right  of  occupancy  and  control  over  adjoin- 
ing waters  of  the  coast,  for  the  purposes  of  defense  and 
protection.^ 

§  73.  The  United  States  has  jurisdiction  of  piracy  over 
the  high  seas.  The  United  States  has  jurisdiction  any- 
where upon  the  high  seas  to  apprehend  and  try  persons 
guilty  of  piracy.  She  has  jurisdiction  over  crimes  com- 
mitted upon  her  vessels  anywhere  on  the  seas,  although 
such  vessels  be  within  the  territorial  jurisdiction  of  a  for- 
eign power.  She  has  jurisdiction  over  private  vessels, 
though  operated  by  her  own  citizens.  She  has  jurisdiction 
over  ministers  and  ambassadors  resident  at  a  foreign 
court.  Jurisdiction  is  conferred  upon  the  federal  govern- 
ment in  all  cases  arising  within  the  maritime  and  admir- 
alty jurisdiction  of  the  United  States,  not  within  the  ju- 
risdiction of  any  particular  state.  This  limitation  upon 
the  jurisdiction  of  the  United  States  courts,  to  causes 
arising  out  of  the  jurisdiction  of  a  particular  state,  has 
been  construed  to  mean  a  state  of  the  American  Union.^ 

§  74.  Maritime  and  admiralty  jurisdiction.  The  con- 
stitution confers  upon  the  federal  judiciary  cognizance 
over  all  causes,  both  criminal  and  civil,  arising  upon  the 
high,  seas,  within  the  maritime  and  admiralty  jurisdic- 
tion. We  do  not  deem  it  advantageous  to  enter  into  any 
discussion  of  this  question,  for  the  reason  that  a  review 
of  the  conflicting  authorities  would  still  leave  us  con- 
fused. Those  who  desire  to  enter  into  the  discussion  are 
invited  to  review  the  following  cases : 

U.  S.  V.  Bevin,  3  Wh.  336;  U.  S.  v.  Wiltberger,  5  Wh. 

2—1  Kent's  Com.  26.  ford,    5    Whcaton    182;    U.    S.    v. 

3 — See  U.  S.  v.  Smith,  5  Wheaton  Bowers    aud    Mathews,    5    Wheaton 

152;   U.   S.   V.  Furlong,  5  Wheaton  182. 
182;    U.    S.    V.    Griffin   and    Brails- 


60  Criminal  Law 

76;  U.  S.  V.  Davis,  2  Sumner  482;  U.  S.  v.  Coombs,  12 
Peters  72;  U.  S.  v.  Cooledgel,  Gall  488;  Adams  v.  Hof- 
fards,  20  Peck  127.  There  are  many  other  authorities 
both  pro  and  con,  English  and  American,  which  may  be 
looked  into  with  profit. 

Our  conclusion,  after  investigation,  is  that  the  mari- 
time and  admiralty  jurisdiction  extends  as  far  as  the 
tide  ebbs  and  flows. 

§  75.  Out  of  the  jurisdiction  of  any  particular  state. 
The  Rev.  Statutes  of  the  United  States  provide  that  mur- 
der committed  upon  the  high  seas,  in  any  arm  of  the  sea, 
or  in  any  river,  haven,  creek,  basin,  or  bay,  within  the 
maritime  and  admiralty  jurisdiction  of  the  United  States 
and  out  of  the  jurisdiction  of  any  particular  state,  is  in 
the  jurisdiction  of  the  United  States.  As  we  have  seen, 
the  courts  have  constnied  the  clause,  "out  of  the  juris- 
diction of  any  particular  state,"  to  mean  a  state  of  the 
American  Union,  and  was  not  intended  to  limit  the  juris- 
diction in  such  waters,  in  a  foreign  state.  The  same 
court  held,  however,  that  under  the  act  of  April  30,  1790, 
the  courts  of  the  United  States  have  no  jurisdiction  of 
manslaughter  committed  by  the  master  upon  one  of  the 
seamen  on  board  of  a  merchant  vessel  of  the  United 
States  lying  in  the  river  Tygres,  in  the  empire  of  China, 
thirty-five  miles  from  its  mouth,  about  one  hundred  yards 
off  the  shore,  in  four  and  a  half  fathoms  of  water  and 
below  low  water  mark.  This  section  of  the  law  of  1790 
has  been  construed  not  to  include  any  arm  of  the  sea, 
river,  haven,  creek,  basin,  or  bay  as  being  on  the  liigli 
seas.  Hence  the  conclusion  is  reached  that  the  term 
"high  seas"  does  not  mean  an  arm  of  the  sea,  basin,  bay, 
river,  etc.,  below  low  water  mark.'* 

§  76.  States  and  counties  bordering  on  the  sea  coast. 

The  jurisdiclioii  of  tlie  sevei'al  stales  is  iudepciKleiit  of 

4— U.  S.  V.  Wiltl.crgcr,  5  Wh.  U.  S.  v.  Rors,  1  Gallis  C12;  U.  S. 
76;   U.   S.   V.    Pirates,   5   Wh.    180;        v.  Hamilton,  1   Mason  152. 


Jurisdiction  61 

each  other,  and  of  the  United  States.  Those  states  and 
counties  bordering  on  the  coast  are  limited  in  the  extent 
of  their  jurisdiction  by  that  of  the  maritime  and  ad- 
miralty courts.  Prior  to  the  enactment  of  the  statute 
of  the  14th  and  15th  Richard  II,  the  maritime  and  ad- 
miralty courts  extended  to  and  included  in  their  jurisdic- 
tions all  causes,  both  civil  and  criminal,  arising  upon 
the  high  seas,  or  in  any  rivers,  bays,  or  basins  or  arms 
of  the  sea,  as  far  as  the  tide  ebbed  and  flowed.  This 
statute  was  construed  by  the  courts,  after  a  long  and 
acrimonious  contention,  and  seems  to  have  settled  the 
([uestion,  that  every  county  bordering  on  the  coast  is 
bounded  by  the  shore  and  in  no  event  extends  beyond  low 
water  mark. 

Lord  Coke  contended,  however,  that  the  body  of  the 
county  comprehended  all  navigable  waters,  where  a  per- 
son could  see  from  one  side  to  the  other:  or  rather  from 
a  point  where  one,  standing  on  one  side  of  the  land, 
could  see  what  was  being  done  on  the  other.  Lord 
Hale  intimates  that  an  araa  of  the  sea  may  be  in  the  body 
of  a  county,  where  a  man  may  reasonably  see  from  shore 
to  shore.^  It  seems  to  be  settled  in  the  United  States  that 
the  admiralty  jurisdiction  extends  to  and  includes  all 
bays,  basins,  creeks  and  amis  of  the  sea,  as  far  as  the 
tide  ebbs  and  flows.  Hence  we  conclude  from  these  au- 
thorities that  the  jurisdiction  of  the  state  courts  may 
extend  to  and  include  all  navigable  waters,  rivers,  bays, 
basins,  creeks  and  harbors,  to  high  water  mark.^ 

§77.  Criminal  jurisdiction  of  the  United  States  dis- 
trict court.  Exclusive  jurisdiction  is  vested  in  the  courts 
of  the  United  States: 

Of  all  crimes  and  offenses  cognizable  under  the  au- 
thority of  the  laws  of  the  United  States. 

5—4  Blaekstone's  Com.  268;  4  470;  U.  S.  v.  Wiltsberger,  5  Wh. 
Coke's  Inst.  140.  "6  and  note. 

6— De    Levio    v.    Bait,    2    Gallis 


62  Criminal  Law 

Of  all  suits  for  penalties  and  forfeitures  incurred  un- 
der the  laws  of  the  United  States.    . 

Of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion; saving  to  suitors,  in  all  cases,  the  right  of  a  com- 
mon-law remedy,  where  the  common  law  is  competent  to 
give  it. 

Of  all  seizures  under  the  laws  of  the  United  States  on 
land  or  on  waters  not  within  admiralty  and  maritime 
jurisdiction;  of  all  prizes  brought  into  the  United  States: 
and  of  all  proceedings  for  the  condemnation  of  property 
taken  as  prize. 

Of  all  cases  arising  under  the  patent-right  or  copy- 
right laws  of  the  United  States. 

Of  all  matters  and  proceedings  in  bankruptcy. 

Of  all  controversies  of  a  civil  nature,  where  a  state  is  a 
party,  except  between  a  state  and  its  citizens,  or  between 
a  state  and  citizens  of  other  states,  or  aliens. 

Of  all  suits  and  proceedings  against  ambassadors,  or 
other  public  ministers,  or  their  domestics,  or  domestic 
servants,'  or  against  consuls  or  vice  consuls. 

The  United  States  district  courts  have  an  original  ju- 
risdiction of  all  crimes  and  offenses  cognizable  under  the 
laws  of  the  United  States.^ 

There  are  no  appeals  in  criminal  cases  from  the  dis- 
trict court.  But  the  manner  of  having  a  judgment  in  a 
criminal  cause  reviewed,  is  by  writ  of  error  from  the  cir- 
cuit court  to  the  district  court.®  Only  final  judgments  in 
criminal  cases  are  reviewable  b}^  the  circuit  court  of  ap- 
peals." 

§  78.  The  jurisdiction  of  a  state  is  commensurate  with 
its  boundaries.  'Vhv  jurisdiction  of  a  court  is  the  power 
and  auUioiily  to  delerniino  all  questions  of  law  and  fact' 

7_f5cction  24,     U.     S.     Judk-ial  9 — Section  128,  Judicial  Code,  U. 

fodp.  B. 

8_Scction  24,     U.     S.     .Judicial  10— Whitworlh     v.     U.     S.,     114 

Code.  Fc'l-  302. 


Jurisdiction  63 

that  may  arise  in  the  trial  of  a  cause.  There  are  many 
kinds  of  jurisdiction  incident  to  a  court,  all  of  which  must 
concur  and  exist  in  the  court  at  the  same  time,  in  order 
to  confer  validity  upon  its  judgments. 

1.  Territorial  jurisdiction,  which  confines  the  authority 
of  the  court  to  act  within  prescribed  bounds. 

2.  Jurisdiction  of  the  person,  which  consists  in  the 
authority  of  the  court  over  certain  individual  or  certain 
classes  of  individuals,  who  may  or  may  not  be  within  the 
territcrial  jurisdiction  of  the  court. 

3.  Jurisdiction  over  the  subject  matter  in  controversy, 
which  may  or  may  not  be  within  the  territorial  jurisdic- 
tion of  such  court. 

The  judicial  officer  must  be  empowered  to  try  and  de- 
termine the  cause,  within  the  bounds  and  over  the  per- 
sons and  things  included  in  the  foregoing  subdivisions. 
These  requisites  are  essential  to  the  validity  of  a  judg- 
ment. No  judgment  can  be  valid  where  the  judge  trying 
the  cause  had  no  authority  to  try  it.  Nor  where  the  court 
had  not  acquired  jurisdiction  over  the  person  or  over  the 
subject  matter:  nor  where  the  judgment  is  rendered  out 
of  the  territorial  boundaries  of  the  court.  If  these 
requisites  do  not  coexist  it  becomes  the  imperative  duty 
of  the  court  to  decline  to  do  more  than  to  declare  that  it 
has  no  power  to  examine  into  and  determine  the  merits 
of  the  controversy  either  as  to  the  law  or  the  facts.^^ 

§79.  Of  the  validity  of  judgments.  The  foregoing 
requisites  to  the  validity  of  a  judgment  of  a  court  are 

11 — Robertson  v.  State   (Ind.),  7  says  that  "The  power  to  hear  and 

West.   R.   481;    Whiteman   v.   Kras-  determine    a   cause    is   jurisdiction; 

ner,  20  Ala.  464;   Goodman  v.  Win-  it  is  coram  judice,  whenever  a  case 

ter,  64  Ala.  410;  Tramwell  v.  Town  is     presented     which     brings     this 

of  Russellville,  34  Ark.   105;    Bueh  power     into    action.       If    the     pe- 

V.    Hanson,   70   111.    480;    Ex   parte  titioner    presents    such    a    case,    in 

Burnett,  44  Qa\.   84;   Brownville   v.  his  petition,  that  on  demurrer,  the 

Bosse,  43   Tex.  440;    State  v.  Wit-  court    would    render    judgment    in 

ford,  54  Wis.  150157;  U.  S.  v.  Ar-  his  favor,   it  is  an  undoubted   case 

renda,    6   Pet.    691-709.      The   court  of  jurisdiction.     Whether  on  an  an- 


64  Cbimixal  Law 

essentials  in  all  courts  whether  of  special  or  general 
jurisdiction;  whether  superior  or  inferior;  whether  of 
exclusive  or  of  concurrent  jurisdiction;  whether  a  court, 
appellate  or  of  trial;  whether  a  court  of  civil  or  criminal 
powers,  or  both,  or  whether  state  or  federal. 

§  80.  Judgment  in  courts  of  general  jurisdiction.  In  a 
court  of  general  jurisdiction  it  is  not  necessary  for  the 
record  to  show  upon  its  face  the  facts  and  the  evidence 
necessary  to  sustain  its  judgment. ^^  A  court  of  general 
jurisdiction,  as  distinguishable  from  a  court  of  limited 
jurisdiction,  is  thus  drawn  by  Mr.  Justice  Baldwin  in  the 
case  of  Grignon  et  al.  v.  Aston  et  al.  before  the  supreme 
court  of  the  United  States  in  1844,  appealed  from  the 
state  of  Wisconsin:  ''The  true  line  of  distinction  be- 
tween courts,  whose  decisions  are  conclusive,  if  not  re- 
moved to  an  appellate  court,  and  those  whose  proceed- 
ings are  nullities  if  their  jurisdiction  does  not  appear  on 
their  face,  is  this:  A  court  which  is  competent  by  its 
constitution  to  decide  on  its  jurisdiction,  and  to  exercise 
it  to  a  final  judgment  without  setting  forth  in  their  pro- 
ceedings the  facts  and  evidence  on  which  it  is  rendered, 
whose  record  is  absolute  verity,  not  to  be  impugned  by 
averment  or  proof  to  the  contrary,  is  of  the  first  descrip- 
tion; there  can  be  no  judicial  inspection,  behind  the 
judgment,  save  by  appellate  power.  A  court  which  is  so 
constituted  that  its  judgment  can  be  looked  into  for  the 
facts  and  evidence,  which  is  necessary  to  sustain  it,  whose 
decision  is  not  evidence  of  itself  to  show  jurisdiction  and 
its  lawful  exercise,  is  of  the  latter  description." 

There  seems  to  be  very  little  if  any  distinction  be- 
tween courts  of  ** general"  jurisdiction  and  courts  of 

Hwer  denying  and   putting   in   issue  taining  all  (he  requisites  and  in  the 

the  allcgationa  of  the  petition,  the  manner  prescribed  by  Inw. " 

petitioner    makes    out    his    case,    is  12— Grignon    v.    Aston.    2    Wall. 

the    exercise    of    jurisdiction,    con-  342. 
f erred  by  the  filing  a   petition  con 


Jurisdiction  65 

*' record."  Courts  of  general  jurisdiction  and  courts  of 
record  seem  to  impart  the  same  idea,  that  the  judgment 
in  either  cannot  be  questioned;  that  all  things  necessary 
to  confer  jurisdiction  have  been  done,  and  is  presumed 
to  be  in  all  things  regular,  without  resort  to  the  record 
to  show  the  power  by  which  it  acted.  Courts  of  limited 
jurisdiction,  and  courts  not  of  record,  in  order  to  give 
effect  to  their  judgments  must  show  in  their  proceed- 
ings facts  sufficient  to  confer  jurisdiction." 

§  81.  A  judge  has  no  jurisdiction  to  render  judgment 
where  interested.  No  judge  can  legally  render,  or  assume 
jurisdiction  to  render  a  judgment  in  a  cause  in  which  he 
is  interested.  It  is  a  maxim  of  the  common  law  and  one 
of  the  fundamental  principles  of  the  power  to  determine 
a  cause  in  a  judicial  proceeding,  that  no  one  should  be 
a  judge  in  his  own  behalf  or  in  his  own  case.  The  leg- 
islature cannot  abrogate  this  fundamental  right  of  lit- 
igants to  have  a  fair,  impartial  trial  of  their  causes.^* 
This  is  a  right  founded  upon  the  plainest  and  most  evi- 
dent principles  of  justice.  All  merely  formal  acts  and 
proceedings  required  to  be  performed  by  a  judge  inter- 
ested in  a  cause,  in  order  to  transfer  it  to  the  proper 
tribunal,  are  justified  in  the  necessity  of  the  surround- 
ings.^^ A  judge  has  the  inherent  power  to  determine  the 
question  of  jurisdiction  of  a  cause  to  be  tried  before 
him.^^ 

§  82.  Consent  of  parties  cannot  confer  jurisdiction  over 
subject  matter.    Consent  cannot  confer  jurisdiction  over 

13 — Freeman  on  Judgments,  Vol.  15 — Cooley    Con.    Lim.    510;    Cy- 

I,  sec.  122.  press  Pond  Draining  Co.  v.  Hooper, 

14— Oclius    V.    Sheldon,    13    Fla.  2   Met.    (Ky.)    350;    Ames   v.    Port 

138;    Buckingham  v.   Davis,   9   Md.  Huron  Log  Driving  &  Booming  Co., 

324;    Com.    v.    Eyan,    5    Mass.    90;  11  Mich.  139. 

Bank    of    North    America    v.    Pitz  16 — Cooley   Con.  Lim.   551;   Hey- 

Simmons,  2  Binn.   (Pa.)   454.  denfelt  v.  Towns,  27  Ala.  423. 
C.  L.— 5 


56  Criminal  Law 

the  subject  matter.  Consent,  though,  will  confer  juris- 
diction over  the  person,  where  it  has  jurisdiction  over 
the  matter  in  controversy."  It  seems  to  be  settled  that 
where  the  trial  court  has  no  jurisdiction  over  the  per- 
son, that  such  person  may  appear  and  appeal  the  same 
to  a  higher  court,  and  that  such  appearance  will  confer 
jurisdiction  in  the  cause.  Not  so,  however,  w^here  the 
trial  court  had  no  jurisdiction  over  the  subject  matter. 
Parties  cannot  by  agreement  confer  jurisdiction  to  try 
a  cause  where  it  would  not  otherwise  have  jurisdiction." 
Thus  where  the  statute  in  certain  things  gives  jurisdic- 
tion to  a  particular  court,  it  cannot  be  changed  to  a  dif- 
ferent court  by  consent  of  parties.^® 

§  83.  A  court  must  be  held  where  the  law  provides  for 
holding.  When  the  law  prescribes  when  and  where  a 
court  shall  be  held,  it  is  essential  to  the  jurisdiction  that 
it  be  held  in  accordance  with  the  terms  of  the  law,  other- 
wise its  judgment  will  be  null  and  void.^®  Where  the 
law  grants  the  authority,  or  contemplates  the  doing  of 
some  act,  it  is  necessaiy  that  it  be  exercised  at  term 
time,  unless  the  power  is  expressly  conferred  to  perform 
such  acts  or  duties  in  vacation.'^^  Generally  all  acts  and 
judgments  of  a  court  are  void,  if  performed  or  rendered 
after  the  adjournment  of  the  terms,  because  of  the  want 
of  jurisdiction. 

All  the  powers  conferred  upon  a  court  must  be  exer- 
cised as  provided  by  law.  If  a  judge  intentionally,  pur- 
posely or  negligently  does  anything  in  reference  to  a 
cause  pending  before  him,  not  allowed  by  law,  he  may  be 
removed  from  office  or  impeached.     If  lie  makes  a  mis- 

]7_Whitc  V.  Gibbcs,  20   (U.  S.)  19— Gcriiunid    v.    Pc-ople,    1    Hill. 

How.    541;    (Jiiiiimott   v.    Askcn,    48  N.     Y.    343;     iVo]il('    v.    .loiios,    20 

Ark.    151;    Smith    v.    Curti.s,   7    Cal.  Ciil.   51. 

584;    Cami.hcll    v.    Wilson,    6    Tp.\.  20— State     v.      h'oliorls,     8     Nov. 

379;    KaiHJolpli  Co.   v.   Holls,    18   111.  239;   (larlick  v.   Dunn,  42   Ala.  404. 

39;   Wasson  v.  Cone,  8(5  111.  4<).  -'I      St;.t.'   v.   .ludgf.   21    La.    Ann. 

ly—Bee  notes  40  and  47,  15  Stjjnd  I  10. 
ard  Ency.  of  Procedure. 


Jurisdiction  67 

take  in  his  judgment  or  errs  in  his  construction  of  the 
law,  the  same  may  be  corrected  by  an  appeal.  If  he 
should  err  in  his  judgment  concerning  the  exercise  of 
jurisdiction,  his  judgment  may  be  corrected  by  the  writ 
of  habeas  corpus.'^'' 

§  84.  Courts  of  concurrent  jurisdiction.  Courts  of  con- 
current jurisdiction  are  of  equal  jurisdiction,  within  cer- 
tain territorial  bounds  and  over  the  same  subjects  and 
persons.  C  ourts  of  concurrent  jurisdiction,  first  acquiring 
control  over  the  cause,  are  entitled  to  complete  jurisdic- 
tion in  making  a  final  disposition  of  it.^^  The  judgment 
of  the  one  is  res  adjudicata  as  to  the  other.  If,  however, 
the  judgment  in  the  one  did  not  extend  to  all  matters  in- 
volved, the  other  would  acquire  jurisdiction. 

§  85.  As  to  superior  and  inferior  courts.  The  distinc- 
tion between  superior  and  inferior  courts  is  not  very 
easy  of  definition.  The  term,  however,  seems  to  have  been 
used  generally  to  denote  whether  the  court  in  the  one  in- 
stance possessed  supervisory  or  appellate  jurisdiction 
over  the  other.  Bouvier  says  that  "All  tribunals  other 
than  the  supreme  court  are  inferior  courts.  These  courts 
have  in  general  original  jurisdiction  in  cases,  both  at  law 
and  equity.  Unlike  a  supreme  or  superior  court,  an  in- 
ferior tribunal  is  a  court  of  limited  jurisdiction  and  it 
must  appear  on  the  face  of  its  proceedings  that  it  had 
jurisdiction,  or  its  proceedings  will  be  void.^*     In  this 

22 — Smith    v.    Chichester,    1    Cal.  305  and   note;    Spiller  v.  Wells,  96 

409;    Bates   v.   Gage,   40    Cal.    183;  Va.  598,  70  A.  S.  R.  881  and  note; 

Stark    V.    Jenkins,    1    Wash.    Ter.  Ober   v.    Gallagher,   93   U.    S.    199; 

421;  In  re  Fain,  100  Fed.  Eep.  149.  Ex  parte  Eobinson,   6  McLean    (U. 

23— Young  V.   Hamilton,   135  Ga.  S.)  244;  Ex  parte  Bushnell,  8  O.  H. 

339,     60     S.     E.     593,     Ann.     Cas.  St.   599;    Taylor  v.   Ft.   Wayne,   47 

1912  A    144,   31    L.    R.   A.    (N.    S.)  Ind.    274;    Beatty    v.    Ross,    1    Fla. 

1057;     Leigh    v.     Green,     62    Neb.  198. 

344,   86   N.   W.   1093,   89   A.   S.   R.  24—3     Bouvier 's     Inst.     70.      Ex 

75;   Plume  and  Atwood  Mfg.  Co.  v.  parte  Knowels,  5  Cal.  301. 
Caldwell,  136  111.  162,  29  A.  S.  R. 


68  Criminal  Law 

definition  Mr.  Bouvier  undertakes  to  make  the  point  that 
inferior  courts  are  courts  of  limited  jurisdiction,  and 
hence  in  order  to  give  validity  to  their  judgments,  it 
must  appear  in  the  record  that  such  courts  possessed 
jurisdiction  to  tiy  and  determine.  This  definition  does 
not  appear  to  be  strictly  accurate  in  this,  for  many  courts 
which  are  not  supreme  or  appellate,  yet  are  courts  of 
general  jurisdiction,  whose  judgments  are  absolute  verity, 
and  admit  of  no  proof  to  the  contrary.  In  California  all 
courts  except  the  supreme  courts  are  regarded  as  in- 
ferior, although  they  be  courts  of  record.^^  The  true 
distinction  between  inferior  and  superior  courts  is,  that 
all  courts  from  which  an  appeal  is  taken  are  inferior 
courts,  with  respect  to  the  court  to  which  the  appeal  is 
taken,  but  such  court  may  not  be  in  a  strict  sense  an 
inferior  court  because  it  may  be  a  court  of  general  ju- 
risdiction, over  persons  and  objects  within  its  jurisdic- 
tion. The  term  "inferior  court"  applies  to  courts  of  spe- 
cial and  limited  jurisdiction,  which  are  erected  on  such 
principles  that  their  judgments,  taken  alone,  do  not  im- 
port absolute  verity.  The  circuit,  district  and  terri- 
torial courts  of  the  United  States  have  been  held  to  be 
courts  of  limited  jurisdiction,  but  that  it  is  not  necessaiy 
to  set  forth  in  their  proceedings  the  facts  and  evidence  of 
its  jurisdiction.^^ 

§  86.  Presumptions  of  courts  of  record,  judgments  of. 

Tlie  pivsum})ti()n  is  indulged  in  favor  of  the  jurisdiction 
of  a  court  of  record  of  general  jurisdiction.  But  there  is 
no  such  presumption  in  favor  of  the  judgments  of  courts 
of  limited  jurisdiction.  In  such  courts  the  power  to  act 
niid  the  authority  to  render  the  judgment  must  appear 
iil)()ii  the  face  of  the  proceedings."     Generally  we  may 

O.j — Ex  parte  Kiiowlea,  5  Cal.  ^.W^.  127— CoTiip  v.  TiOsson,  67  Cal.  139; 

26— Ex  parte  WatkiiiH,  .S  Pot.  ( n.  St.Tin.iin      v.      Davis,      Selk.      404; 

S.)   19.'{;  Kemp's  Lessee  v.  Kenefly,  Kcinpe's   Loshoo   v.   Kenedy,   1   Pet. 

r,  francli.    (U.   S.)    175-18;{.  U.    S.    30;     Com 'ers    Court     Tallo 


Jurisdiction  69 

regard  the  terms  ^'courts  of  record,"  ''superior  courts" 
and  ''courts  of  general  jurisdiction"  as  synonymous. 
So,  also,  "inferior  courts,"  "courts  not  of  record"  and 
"courts  of  limited  jurisdiction"  are  the  same  in  general 
meaning.^®  The  former  are  protected  by  the  presump- 
tion of  jurisdiction,  and  the  latter  are  subject  to  attack 
dehors  the  record,  but  where  jurisdiction  is  shown,  the 
presumption  prevails  that  everything  was  done  neces- 
sary to  authorize  the  entry  of  the  judgment. 

§  87.  Jurisdiction  conferred  by  constitutions  and  laws. 

In  a  preceding  chaj)ter  we  have  called  attention  to  the 
division  of  powers  of  government,  to  wit :  the  legislative, 
judicial,  and  executive,  all  of  which  have  independent 
powers  and  authority.  The  judicial  power  of  the  United 
States  is  vested  by  the  constitution  in  the  supreme  court 
and  such  other  courts  as  congress  may  create.  The  con- 
stitution confers  upon  the  supreme  court  certain  juris- 
diction, and  it  has  been  held  that  congress  has  no  power 
to  confer  a  greater  or  a  less  extended  jurisdiction  upon 
such  court.  Where  the  constitution  creates  a  particular 
court  and  fixes  its  jurisdiction  it  is  not  competent  for  the 
legislature  to  pass  any  statute  abolishing  the  court  or  en- 
larging or  abridging  its  jurisdiction.  Congress  cannot 
confer  jurisdiction  upon  the  states  courts  nor  can  the 
state  legislature  confer  jurisdiction  upon  the  federal 
courts. 

§  88.  Courts  have  no  jurisdiction  over  merely  political 
questions.  The  United  States  courts  have  no  jurisdic- 
tion over  merely  political  questions.  This  belongs  to  the 
jurisdiction  of  the  legislative  and  executive  and  what- 
ever is  determined  by  them  the  courts  are  bound  to  fol- 

deger     County     v.     Thompson,     18  28 — Freeman  on  Judgments,  Vol. 

Ala.  694;   Kruse  v.  Wilson,   79  111.  I,    122;    Miller   v.    U.    S.,    11   Wall. 

233;  Sears  v.  Terry,  36  Conn.  273;  (U.  S.)   268. 
Mennar  v.  Goggins,  121  U.  S.  253. 


70  Criminal  Law 

low.  The  question  whether  a  state  constitution  was 
legally  and  regularly  adopted  was  held  to  be  a  political 
matter  and  not  within  the  jurisdiction  of  the  courts.^" 

§  89.  State  courts  have  no  jurisdiction  over  places 
ceded  to  the  United  States.  The  United  States  courts 
have  jurisdiction  over  ceded  places  within  the  jurisdic- 
tion of  the  United  States.  The  state  courts  cannot  take 
cognizance  over  such  ceded  places  after  they  have  been 
ceded  to  the  United  States.  The  inhabitants  of  such 
places,  at  the  time  of  the  cession,  cease  to  be  citizens  of 
the  state  of  which  it  was  a  part,  and  become  in  all  things 
citizens  of  the  United  States.  The  state  may,  however,  in 
its  articles  of  cession  retain  the  power  to  assess  taxes 
and  the  like.^*^ 

§  90.  Generally  courts  may  not  interfere  in  the  per- 
formance of  duties  of  officers.  Generally  the  courts  can- 
not interfere  in  the  performance  of  the  duty  of  a  state 
officer.  Where,  however,  the  law  provides  that  an  officer 
shall  perfomi  certain  acts  which  are  placed  beyiond  the 
exercise  of  a  discretion,  the  courts  may  enforce  the  per- 
fonnance  by  mandamus.  It  seems  that  all  acts,  min- 
isterial and  not  merely  discretionaiy,  may  be  enforced 
by  resort  to  the  judiciary,  and  to  that  ext(Mit  the  state 
officer  may  be  compelled  to  act.^^ 

§  91.  Larceny,  jurisdiction  of  at  common  law,  as  to  dif- 
ferent counties.     It   is  the  rule  of  the  coininoii  law  tliat 

30 — Com.   V.  Coin 'era,  37   Pa.   St.  Com.    v.    Clary,   8   ^la.ss.   72;    Senks 

237;    Gibson    v.    Temple,    62    Tex.  v.    Reeves,    19    Ohio    St.    306;    Ft. 

555;   U.  S.  V.  Moore,  3  Cr.   (U.  S.)  Leavenworth    v.    Lowe,    114    U.    S. 

159- 170'     P:x     parte     McCardle,     7  525;    People   v.   Godfroy,   17   .lohns. 

Wall.  506.  (N.  Y.)   225. 

32 — Galons     v.     Virjrini:i,     (i     Wii.  33— Towlo   v.    State,   3    Flii.   302; 

U.     S.     424,    2     Story    cont.     122(i;  I'coidc    ex    rd.     L.-i^'niiin,.    v.    State 


Jurisdiction  71 

where  larceny  is  committed  in  one  county  and  the  prop- 
erty carried  into  anotlier,  jurisdiction  iniglit  be  exercised 
by  the  courts,  either  in  the  county  where  committed  or 
in  any  county  into  which  it  had  been  carried.  A  prose- 
cution in  one  was  a  bar  to  a  subsequent  prosecution  in 
the  other.  Many  of  tlie  states  in  the  United  States  have 
held  that  the  larceny  committed  in  one  of  the  states  of 
the  United  States  and  the  property  carried  into  a  sister 
state  came  within  the  principle  of  the  common  law  and 
jurisdiction  might  be  exercised  by  the  courts  of  the 
state  into  which  the  stolen  property  had  been  carried.^* 
There  is  no  contention  in  any  of  the  states  whose  courts 
have  held  to  this  doctrine  that,  at  the  common  law,  the 
English  courts  had  jurisdiction  over  theft  committed  in 
a  foreign  country.  The  ground  of  their  contention  seems 
to  be  based  upon  the  theory  that  the  states  of  the  United 
States  are  not  foreign  states  in  the  usual  acceptation, 
but  are  the  integral  parts  of  the  whole  government,  and, 
in  a  general  sense,  sustain  the  same  relation  to  each  other 
as  one  county  sustains  to  another.  The  answer  to  this  is 
met  in  the  suggestion  that  the  several  states  are  sov- 
ereign and  independent  of  each  other,  having  a  privity 
only  in  the  prohibitions  placed  upon  them  in  the  con- 
stitution of  the  United  States.  In  all  other  respects  they 
are  to  each  other  as  foreign  states.  It  is  not  in  harmony 
with  reason  and  with  the  spirit  of  the  law  that  one  state 
should  have  the  right  to  punish  an  act  committed  in  an- 
other. Upon  principles  of  international  polity,  one  state 
could  acquire  jurisdiction  over  theft  committed  in  an- 
other, where  the  stolen  property  had  been  brought  into 

Treasurer,  24  Mich.  468;  State  v.  185,  8  Am.  Dec.  175;  State  v.  Bart- 
Doyle,  40  Wis.  175,  32  Am.  Eep.  lett,  11  Vt.  650;  Watson  v.  State, 
692;  Int.  R.  Co.  v.  Bledsoe,  40  Tex.  36  Miss.  593;  State  v.  Johnson,  2 
527.  Oregon  115;  State  v.  Burnett,  14 
34— Hamilton  v.  State,  11  Ohio  Iowa  479;  Terrel  v.  Com.,  1  Duvall 
St.    435;    State    v.    Ellis,    3    Conn.  153;    Com.  v.   Collins,   1   Mass.   116. 


72  Crimixal  Law 

its  territory.  But  nowhere  do  we  meet  with  the  conten- 
tion that  theft  is  such  a  universal  crime  as  deserves  to 
be  punished  wherever  the  property  may  be  found.  Upon 
principle  therefore  we  contend  that  jurisdiction  cannot 
be  exercised  by  the  courts  of  the  state  into  which  the 
stolen  property  has  been  carried,  except  upon  the  ground 
that  it  is  a  crime  to  bring  propertj^  into  the  state  which 
is  larcenously  in  the  possession  of  the  person  charged. 
The  cases  in  Massachusetts,  Vermont,  Ohio,  Connecticut, 
]\Iaine,  Mississippi,  Iowa,  Oregon  holding  that  a  person 
found  with  stolen  property  in  his  possession,  w^liich  had 
been  stolen  in  another  state,  proceeded  upon  the  theory 
that  "stare  decisis"  long  sustained  the  rule  in  those 
states  that  it  could  be  prosecuted  in  the  jurisdiction 
where  the  property  is  found.  Most  of  these  cases  do  not 
attempt  to  justify  the  rule  upon  the  principles  of  the 
common  law  but  stare  decisis  only.  No  doubt  can  be 
entertained  that  a  state  might  by  statute  punish  the  act 
of  bringing  stolen  property  into  its  territory,  which  had 
been  stolen  in  a  foreign  jurisdiction,  but  we  cannot  sub- 
scribe to  the  doctrine  that  the  theft  itself  can  be  pun- 
ished out  of  the  jurisdiction  where  committed.^® 

§  92.  Difference  of  larceny  committed  in  foreign  state 
and  states  of  Union.  There  is  quite  a  diJleieiice  in  prin- 
ciple between  exercising  jurisdiction  over  theft  committed 
in  one  county  and  carried  into  that  of  another  and  theft 
committed  in  a  foreign  state  and  carried  into  another. 
In  the  fonner  all  jurisdiction  is  derived  from  the  state 

35 — People   v.   Gardner,   2   Johns.  son    bringinj;    stolon    pro])ert,v    inio 

477;  People  V.  Scheak,  2  Johns.  479;  that    state    from    another    coultl    lie 

.Simpson    v.   State,   4   Humph.    A'jG;  convicted   of   larceny   committed    in 

Bcall  V.  State,  15  Ind.  378;  State  V.  such    state    but    further    holds   that 

Rcnnols,   14  La.  Ann.  278;   Stanley  tlie  state  of  Ohio  had  no  jurisdic- 

V.  State,  24  Ohio  St.  166;    15  Am.  tiou  and  could  not  convict  another 

Rep.  604.     This  case  holds  that  tlio  lor  l)ringing  stolen  property  therein 

rule  lias  long  been  in  tliat  state  thai  stolen  in  tlio  Dnmiiiion  nf  rnn;id;i. 
jurisdiction    tittaclwd    ;ind    any   ]K'r 


Jurisdiction  73 

and  each  county  belongs  to  the  same.  In  the  latter  there 
is  not  the  slightest  privity  except  on  the  principles  of  in- 
ternational law.  They  are  as  widely  divergent  as  the 
poles.  They  have  no  common  connection.  Between  the 
counties  of  the  same  state  the  closest  relations  are  main- 
tained; each  in  a  general  sense  have  the  same  rights  and 
derive  their  power  from  the  same  source.  The  true 
reason  assigned,  why  the  county  into  which  the  stolen 
goods  have  been  removed  might  assume  jurisdiction,  pro- 
ceeds upon  the  theory  that  each  step  taken,  after 
the  original  felonious  taking,  constitutes  a  new  theft  of 
tliG  goods,  or  trespass,  and  thus  each  county  through  or 
into  which  the  goods  were  carried  acquires  jurisdiction, 
not  of  the  original  theft,  but  of  the  new  theft.^^  This  is 
nothing  more  than  the  mere  fiction  of  law.  The  reason 
why  the  common  law  adopted  this  rule  is  not  definitely 
known.  The  principle,  however,  is  firmly  imbedded  in 
the  American  jurisprudence. 

§93.  Jurisdiction    as    to    larceny — Continued.      The 

states  of  Massachusetts,  Vermont,  Connecticut,  Missis- 

36 — State    v.    Newman,    9    Nev.  he  carries  the  stolen  property,  upon 

48,  16  Am.  Eep.  3.     The  court  says:  the   ground  that  the  title  being  in 

"It  was  shown  by  the  evidence,  so  the     true     owner     every     moment's 

far  as  there  was  any  sliowing  that  continuance  of  felonious  possession, 

the    property,    subject    of    the    lar-  is    a    new    crime    under    the    same 

eeny,  was  stolen  in  Utah  Ter.     The  law.     As  every  state  of  this  union, 

indictment  was  for  larceny  in  Lin-  as  to  its  laws  and  their  administra- 

coln     county,     State     of     Nevada.  tion,   is  a   foreign  country  to   each 

This   statement   of   fact   brings   up  other,  there  can  be  no  analogy  be- 

the  often  and  variously  decided  ob-  tween  the   cases;    and   thus   despite 

joction,   that   no   conviction   can   be  the   very   considerable   authority   in 

had,  in  one  state  of  this  Union  for  the  affirmation  of  this  proposition, 

larceny    committed    in    another    or  the  weight  of  precedent  and  reason 

in  a  territory  thereof.     Thus  badly  is   against   it.    In   Mass.   and   other 

put,    of   course    no    authority   could  states    where   the    doctrine   prevails, 

be    found    to    sustain;    but    convic-  it    is    evidently    more    because    the 

tions    have    been    had,    upon    the  rule  is  established;  while  the  reason 

principle  which  allows  one  stealing  is      clearly      with      the      dissenting 

in  one  county  of  a  state  to  be  in-  judges."  , 
dieted   and   tried   in   another   which 


74  Ckiminal,  Law 

sippi,  Oregon,  Ohio,  Iowa  and  Kentuckj*  in  the  main 
base  their  right  to  jurisdiction  upon  tlie  ground  that 
ownership  of  the  property  remains  in  the  owner,  notwith- 
standing the  original  larceny  had  been  committed  in  a 
foreign  jurisdiction;  that  the  right  to  inquire  into  the 
ownership  of  property  in  the  possession  of  the  inhabitants 
of  the  state  rests  with  the  courts,  and  if  the  possession 
is  found  to  be  feloniously  acquired  in  another  state  and 
brought  into  it  by  the  thief  or  his  confederates,  by  a  legal 
fiction,  the  theft  is  considered  as  having  been  committed 
in  the  latter.  The  court  in  the  case  of  State  v.  New- 
man says:  ''It  amounts  to  the  proposition  that  "A," 
in  the  possession  of  property  of  "B,"  with  felonious  in- 
tent to  steal,  take  and  carry  away  the  same,  is  guilty  of 
larceny.  This  is  not  enough.  A  larceny  under  the  cir- 
cumstances of  this  case  must  be  complete  in  itself,  upon 
its  own  suiToundings.  There  is  no  convenient  legal 
fiction  to  help  out  the  haulting  fact,  and  of  course  it  is 
a  self  evident  proposition  in  the  abstract,  that  the  mere 
possession  of  another's  property  with  intent  to  steal,  is 
no  larceny  until  the  intent  is  ripened  into  act."  ^"^ 

§  94.  Jurisdiction  of  larceny  continued  and  discussed. 
Even  in  those  states  where  a  conviction  for  larceny  is 
permitted  upon  proof  that  the  property  was  stolen  in  one 
state  and  carried  into  anotlier,  have  abandoned  the  theory 
tliat  the  property  stolen  out  of  the  United  States  and 
brought  into  the  United  States  would  confer  jurisdiction 
over  the  larceny  here.  Thus  in  the  state  of  Massachusetts 
where  the  property  was  stolen  in  the  Dominion  of  Can- 
ada, brought  into  and  held  criminally,  is  confined  to  the 
violation  of  her  own  laws.'* 

It  is  a  general  rule  that,  for  the  purpose  of  redress,  it 
is  immaterial  where  a  wrong  was  comniittod;  in  other 

37 — .state    v.    Ncwmsin,    9    Nov.  38— Com.    v.    Ui)iicliiir(l,    3    Gray 

98;    Stanley   v.   Hfato,   24   Ohio   lf)6,        434;  State  v.  Stanley,  134  Ohio,   166 
IT)    Am.    R<|..    (in.j.  Cooley   on    'I'ort.s,   47(1. 


Jurisdiction  75 

words,  the  wrong  being  personal,  redress  may  be  sought 
for  wherever  the  wrongdoer  may  be  found.  See  Jones  on 
Chattel  Mortgages,  sec.  299,  3rd  Ed. 

§  95.  Jurisdiction  as  to  prosecution  of  conspiracies.  It 
is  a  well  established  principle  that  a  conspiracy  may  be 
prosecuted  in  anj^  county  in  which  an  overt  act  is  com- 
mitted, and  this  is  true  although  the  agreement  was  en- 
tered into  in  another  country.^®  Conspiracy  entered  into 
in  one  state  and  an  overt  act  committed  in  another  gives 
jurisdiction  to  the  latter.*"  Thus,  w^here  a  resident  of 
the  state  of  New  York  forged  a  draft  in  that  state  and 
placed  it  in  the  hands  of  an  innocent  party  to  be  for- 
warded to  Boston,  where  it  was  paid  and  the  same  was 
remailed  to  the  defendant  in  New  York,  ^vho,  during  the 
transaction  did  not  leave  the  state  of  New  York,  it  was 
held  in  Massachusetts,  where  he  was  indicted  for  uttering 
a  forged  check,  that  that  state  had  jurisdiction  notwith- 
standing the  broker  w^as  his  agent,  and  also  resided  in  the 
state  of  New  York.  In  a  Texas  case  a  conspiracy  was 
entered  into  in  the  city  of  Austin,  but  the  final  act  of 
forgery,  the  object  of  the  conspiracy,  was  completed  in 
the  city  of  Chicago ;  the  court  held  that  the  Texas  courts 
had  jurisdiction.  The  defendant  in  this  case,  however, 
was  a  resident  of  the  state  of  Texas  and  through  his  part- 
ner in  the  conspiracy  had  the  forgeiy  completed  in 
Chicago.  Again,  in  a  case  in  the  state  of  Pennsylvania,  it 
was  held  that  a  conspiracy  entered  into  in  the  state  of 
New  York  for  the  pui'pose  of  selling  lotteiy  tickets  in  the 
state  of  Pennsylvania  through  an  agent,  an  overt  act  com- 
mitted in  the  latter  state  by  selling  tickets  conferred 
jurisdiction  upon  the  courts  of  Pennsylvania  over  the 
citizen  of  New  York.    From  these  cases  the  rule  may  be- 

39 — U.   S.   V.   Davis,  2  Sum.   485.  Adams,  3   Denio.   190,  45  Am.  Dec. 

40— Com.   V.   Gillespe,   7   S.   &   E,  469;    Ex    parte    Eodgers,    10    Tex. 

469,    10    Am.    Dec.    475;     Com.    v.  App.  655. 
Harvej',  8   Am.   Jur.   69;   People  v. 


76  Criminal  Law 

deduced  tliat  where  a  conspiracy  is  shown  to  exist  and  an 
act  done  toward  carrying  out  the  common  design  by  an 
agent  of  the  conspirators  or  by  the  conspirators  them- 
selves, jurisdiction  is  conferred  over  the  parties  to  the 
conspiracy  in  the  state  where  the  overt  act  is  perfomied, 
and  that  w^hether  the  members  or  any  of  them  be  within 
the  teiTitorial  jurisdiction  of  such  state. 

§  96.  Jurisdiction  as  cases  of  homicide,  committed  on 
border  of  state.  It  is  a  well  settled  rule  in  America,  in 
cases  of  homicide  that  jurisdiction  is  in  the  place  where 
the  wound  is  inflicted  and  not  where  death  takes  place. 
If  the  blow  or  the  means  is  set  in  motion  in  one  county  or 
in  one  state  and  the  consequent  death  takes  place  in  an- 
other, jurisdiction  is  controlled  by  the  place  where  the 
blow  was  given  which  resulted  in  death.  Prior  to  the 
amendment  of  the  statute  of  2  and  3  Edw.  VI  the  rule 
seems  to  have  been  in  substantial  accord  with  the  above. 
Yet,  however,  there  are  authorities  for  the  contention 
that  prior  to  this  statute  jurisdiction  could  attach  in 
either  county,  where  the  blow  was  given  in  one  county 
and  the  death  resulted  in  another.  The  weight  of  author- 
ity, however,  is  against  this  contention,  and  it  seems  to 
be  pretty  generally  conceded  that  jurisdiction  was  in  the 
place  where  the  blow  was  inflicted,  jirior  to  the  enact- 
ment of  this  statute.  One  of  the  reasons  that  lead  to 
the  conclusion  that  jurisdiction  was  in  the  place  of  the 
blow  was  that,  by  the  early  common  law,  juries  of  the 
counties  were  to  inquest  the  dead  body.*^ 

§97.  False  pretenses,  cheats,  etc.  In  cases  of  cheats 
and   false   pretenses,   whore    tlie   false    and   fraudulent 

41 — state   V.  Kelly,   76   Mc.   045;  jurisdiction;  Green  v.  .St:itc,  6G  Ala. 

this  was  a  case  where  the  blow  was  4(i,    41    Am.    Rep.    744;    Riggs    v. 

given  in  a  fort  over  which  the  juris-  Slate,  26  Misa.   .'51  ;   People  v.   (lill, 

diction     extended,     held     that     llic  <>    ("al.    6.'57. 
ffnirts  of  the  state  (if  Maine  had   no 


Jurisdiction  77 

statements  are  made  in  one  county  and  the  property  de- 
livered in  that  of  another  county,  the  Texas  court  has 
held  that  the  prosecution  could  not  be  maintained  in  the 
county  where  the  false  pretenses  were  used.  But  the 
offense  being  deemed  to  have  been  committed  where  the 
property  was  delivered,  such  countj^  had  jurisdiction 
only.*^ 

§  98.  Where  a  criminal  offense  is  committed  in  two 
jurisdictions.  Where  a  criminal  offense  is  partly  com- 
mitted in  two  jurisdictions  the  right  of  trial,  conviction 
and  sentence  may  be  exercised  by  either.*^  Upon  prin- 
ciples of  law  in  civil  actions  where  the  act  of  negligence 
takes  place  in  one  jurisdiction,  i.  e.,  in  one  state,  and 
the  damages  result  in  another,  suit  may  be  maintained  in 
either.**  In  the  state  of  Massachusetts  it  was  held  that 
where  a  dog  kept  in  that  state  strayed  away  into  the  state 
of  New  Hampshire  and  committed  a  trespass  there,  suit 
could  not  be  maintained  in  the  fonner  under  a  law  grant- 
ing damage  done  by  a  dog.*^  In  Texas  where,  upon  a 
charge  of  abortion,  the  proof  showed  that  the  means  and 
the  medicine  administered  were  taken  in  one  county  and 
the  abortion  occurred  in  another,  the  court  held  that  upon 
principles  of  the  common  law  jurisdiction  over  the  of- 
fense was  properly  had  in  the  county  where  the  means 
which  produced  the  abortion  were  put  in  motion.  It  did 
not  expressly  decide  that  jurisdiction  might  not  be  ac- 
quired in  the  county  in  which  the  abortion  occurred, 

42— Sims  V.  State,  28  Tex.  App.  W.   930    (Texas);   U.  S.  v.  Guiteau 

447,    cites    Robertson    v.    State,    16  3rd  Cr.   Mag.   680.     This  case  was 

Tex.  App.  54.  tried  District  of  Columbia  Supreme 

43 — For  a  full  discussion,  see  the  Court.    §  100  this  work, 

following:    Riley  v.  State,  9  Umph.  44— Cooley  on  Torts,  470-471-472. 

464;    Rigs   v.    State,    26    Miss.    51;  45— LeFrost      v.      Tillman,      117 

State  V.   Kelly,  26  Me.  331;    Green  Mass.    109;    Thayer    v.    Brooks,    17 

V.  State,  66  Ala.  40,  41  Am.  Rep.  Ohio    489;     Holmes    v.    Barclay,    4 

744;     Nash     v.     State,     2     Greene  La.  Ann.  63. 
(Iowa)   286;  Abbey  v.  State,  36  S. 


78  Criminal  Law 

but  the  inference  is  that  jurisdiction  was  confined  to  the 
county  where  the  means  were  put  in  motion.*^ 

§  99.  Bases   of   doctrine   of   preceding   section.     The 

doctrine  of  the  preceding  section  is  founded  upon  the 
theory  that  the  act,  if  completed  into  a  crime,  would 
be  criminal  in  both  localities.  Where  one  puts  in 
operation  a  force,  or  does  an  act,  or  procures  another  to 
act  for  him,  either  consciously  or  unconsciously,  which 
is  an  act  innocent  and  permissible  by  the  law  where  he 
resides,  which  culminates  in  a  crime  against  the  laws  of 
another  state,  the  latter  has  jurisdiction  to  try,  convict 
and  sentence  such  persons.  Thus  the  business  of  selling 
lotteiy  tickets  through  an  agent  in  a  state  where  it  is  a 
violation  of  the  penal  code  to  sell  lottery  tickets,  the  court 
of  such  state  has  jurisdiction  to  try  the  principal  who 
resides  out  of  the  state.*'''  Every  state  is  the  judge  of 
what  acts  are  inimical  to  the  morals,  trade,  commerce  and 
common  weal,  and  to  that  end  may  punish  all  persons 
who  violate  its  laws,  although  such  persons  reside  in 
other  states,  and  also  notwithstanding  such  violations  are 
procured  tlirough  an  agent.  Examples  of  which  are  found 
in  combinations  and  conspiracies  in  restraint  of  trade; 
trusts  and  other  means  resorted  to  by  residents  abroad 
for  the  purpose  of  controlling  the  prices  of  commodities, 
etc."  The  circulation  of  a  libel  through  an  agent  by  one 
abroad  will  subject  him  to  punishment  in  the  place  of 
circulation.*^    A  false  pretense  whereby  one  abroad  in- 

46— Moore   v.   State,   40th    S.   W.  48— llatli\v;iy   v.   State,   :16  S.  W. 

287    (Texas).     "The  appellant   put  465   (Tex.). 

in  operation  a  force  in  one  county  49 — State  v.  Fiver,  74  Wash.  96, 

which    produced    its    results    in    an-  i:}2,    p.    858,    Anno.    Cas.    1915    A, 

otlier   and    we    hold   that   he   is   re-  695  and  note,  49  L.  R.  A.   (N.  S.) 

sponsible   in    the    former,   where   he  941  and  note;  Baker  v.  State,  97  Ga. 

performs  the  acts  which  resulted  in  452,  25  S.  E.  'M\  ;  Com.  v.  McCloon, 

the  abortion."  101  Mass.  1,  100  Am.  Dec.  89;  State 

47— Com.    V.   Gilipsic,    7    S.   &    H.  v.   Husloii,  10  S.  D.  644,  104  N.  W. 

469,   10   Am.  Dec.  475.  4.11,  117  A.  S.  R.  970. 


JiTRISUICTION  79 

duces  another  to  part  with  his  property  may  be  punished 
in  the  jurisdiction  where  the  false  pretense  is  affected. ^° 
This  principle  extends  to  all  criminal  offenses  which  may 
be  committed  by  an  agent. 

§  100.  Division  line  between  states.  Where  one  stands 
near  the  line  of  division  between  two  states,  fires  and 
kills  another  in  a  different  state,  it  seems,  upon  principles 
of  the  common  law,  to  have  done  the  act  in  the 
other  state  and  not  where  he  put  in  operation  the 
force  which  produced  the  death.  However,  upon 
analogy  of  the  recent  case  in  Texas,  where  all  the 
means  of  producing  an  abortion  were  put  in  motion  in 
one  county  and  the  abortion  took  place  in  another, 
the  court  held  that  the  first  county  had  jurisdiction, 
seems  to  confer  jurisdiction  upon  the  courts  of  the 
state  where  the  shot  was  fired.^^  This,  too,  under  the 
peculiar  conditions  and  formation  of  our  government, 
seems  to  be  more  in  agreement  with  reason  and  justice. 
For  if  the  jurisdiction  is  conferred  upon  the  state  where 
the  deadly  missile  took  effect,  the  apprehension  and  pun- 
ishment of  such  offender  would  depend  upon  the  law  of 
comity  of  the  states,  and  he  could  only  be  reached  through 
extradition.  In  an  early  case,  where  a  shot  was  fired 
from  an  American  vessel  and  a  seaman  on  a  foreign  ves- 
sel in  a  foreign  harbor  was  killed,  it  was  held  that  the 
United  States  did  not  have  jurisdiction,  and  that  the 
jurisdiction  was,  in  legal  contemplation,  where  the  shot 
took  effect.^^ 

§  101.  There  are  a  few  adjudicated  cases  which  hold 
that  where  one  resident  beyond  the  limits  of  a  state 

50— Com.  V.  Van  Floyd,  1st  Met.  U.   S.   v.   Davis,   2   Sum.   482;    Hat 

(Ky.)  1;  State  v.  House,  55  Iowa  field  v.  Com.,  12  S.  W.  309  (Ky.) 
666;    Norris   v.   State,   25   Ohio   St.  52— U.  S.  v.  Davis,  2   Sum.  482: 

217;   18  Am.  Rep.  291,  2  Am.  Crim.  State  v.  Hall,  114  C.  N.  909,  28  L 

Eep.;   State  v.  Wycoff,  31  N.  J.  L.  R.  A.  59,  41  A.  S.  R.  822,  19  S.  E 

68;   State  v.  Dennis,  80  Mo.  594.  602;    State  v.   Wykoff,  31   N.  J.   L 

51— State  V.  Moore,  40  S.  W.  287 ;  65. 


80 


Criminal  Law 


procures,  advises  or  abets  another  in  the  commission  of  a 
felony  in  another  state  is  not  answerable  to  the  laws  of 
the  latter.^^  All  parties  to  a  conspiracy  are  equally 
guilty  and  are  principals,  whether  the  object  of  the  con- 
spiracy is  completed  or  not  or  whether  the  object  of  the 
conspiracy  is  completed  in  the  same  jurisdiction.  Those 
states  where  the  statutes  have  abolished  those  distinc- 
tions between  accessories  before  the  fact  and  principals,  a 
procuror  may  be  indicted  in  the  jurisdiction  where  the 
crime  was  in  fact  committed. 


53 — Hatfield  v.  Commonwealth, 
12  S.  W.  (Ky.)  309.  The  court 
says:  "The  appellant,  Valintine 
Hatfield,  was  not  actually  present 
when  the  wholesale  murder  took 
place,  but  remained  with  his  gun 
on  the  West  Va.  side  of  the  river 
some  two  or  three  hundred  yards 
distant  (from  where  the  other  par- 
ties on  the  Kentucky  side  of  the 
river  committed  the  murder)  ready 
and  near  enough  to  give  aid  and 
assistance  should  an  attempt  be 
made  to  rescue  the  prisoner  and 
to  administer  an  oath  to  each  of 
his  forces  on  the  return  from  the 
murder  of  this  little  boy,  that  they 
would  never  reveal  the  action  of 
any  connected  with  the  brutal  act. 
The  indictment  in  this  case  charges 
a  conspiracy  on  the  part  of  these 
nppcllants  and  many  others  who  are 
indicted  with  tliem,  to  commit  this 
crime  and  tliose  not  guilty  of  the 
actual  shooting,  as  being  present, 
aiding  and  abetting  the  commission 
of  tlie  crime.  It  is  argued  that 
what   transpired    with    reference   to 


the  offense  or  the  custody  of  these 
boys,  on  the  Virginia  side  of  the 
Hue,  is  incompetent,  because  it  con- 
stituted an  offense  against  the  laws 
of  that  state  and  not  against  that 
of  Kentucky,  and  that  the  accused 
Hatfield  being  on  the  Virginia  side 
of  the  boundary  line,  could  not  in 
contemplation  of  law  have  aided 
and  abetted  a  murder  in  Kentucky, 
so  as  to  bring  him  within  the  juris- 
diction of  the  Kentucky  courts. 
Again  that  he  was  not  near  enough 
to  the  parties  on  the  ninth  of  Au- 
gust when  the  wrong  was  perpe- 
trated to  have  aided  and  abetted  at 
its  commission,  and  therefore  can- 
not be  convicted  as  principal.  It 
is  not  pretended  that  the  courts  of 
one  state  can  enforce  its  laws  be- 
yond the  state  boundary,  but  it  is 
well  settled  that  where  one  puts 
into  operation  the  force  of  power 
that  causes  tlie  injury,  he  is  re- 
sponsible where  the  wrong  is  per- 
petrated, althougli  ho  may  not  be 
actually   prosoiit. 


CHAPTER  VI 

IDIOTS— MOEAL    INS ANITY— INTOXICATION— INFAIS'  TS— M AR- 

EIED  WOMEN— DURESS— CORPORATIONS— IGNORANCE 

OF  THE  LAWS— IGNORANCE  OF  FACTS 


nnoTs 

§  102.  Persons   exempt   from   crime. 
§  103.  Idiots     and     lunatics     freed 

from   responsibility. 
§  104.  Lucid  interval. 
§  105.  Different  species  of  insanity. 
§  106.  The     decision     in     the     Mc- 

Naughten  case. 
§  107.  The   rule   in  insane   delusion, 

as  to  supposed  and  unreal 

facts. 
§  108.  The  right  and  wrong  theory 

of  insanity. 
§  109.  The  burden  is  on  the  defend- 
ant to  show  incapacity. 
§  110.  Not   in  accord  with   doctrine 

of   irresistible   impulse. 

MORAL    INSANITY 

§  111.  Defined. 

§  112.  Irresistible  impulse  defined. 

§  113.  Must  be  act  diseased  mind. 


§  119.  Application    of    the    rule    to 

hypnotic   influences. 
§  120.  Involuntary  intoxication, 

what  is. 
§  121.  The     defendant    in    criminal 

case     is     presumed    to     be 

sane. 
§  122.  Further    discussion. 
§  123.  Pleadings    of    the    defendant 

in. 
§  124.  Of  the  amount  and  extent  of 

proof,  etc. 
§  125.  Proof   of   malice   in   criminal 

cases  must  be  beyond  rea- 
sonable doubt. 
§  126.  Insanity    shown   is   presumed 

to  continue. 
§  127.  Dissenting         opinions         of 

judges. 
§  128.  Non-expert    witnesses. 
§  129.  Expert  witnesses. 
S  130.  Where  the  defendant  becomes 

insane  after  conviction. 


INTOXICATION 

INFANTS 

§  114.  Intoxication    may    be    shown 

as     a     mitigation     of     the  §  131.  Infants  under  seven  years  of 

crime      and      to      negative  age. 

malice.  §  132.  Persons    under    the    age    of 
§  115.  Where  one  imbibes  liquor  to  fourteen. 

nerve    Iiimself    to    commit  §  133.  Rule  in  the  southern  states. 

crime. 
§  116.  Result    of    experience    as    to  married   women 

those  who  commit  crime. 

§  117.  The  result  of  involuntary  in-  §  134.  Presumption    as    to    married 

toxication   in  homicide.  women. 


81 


C.  L.— 6 


.1       !'  i 


82 


Criminal  Law 


§  135.  Presumption  does  not  extend 

to  felonies. 
§  136.  Common  law  rule  modified  by        §  145. 

statute. 
§  137.  Is  a  prima  facie  presumption       S  146. 

only. 

§  147. 
DURESS 

§  138.  Defendant    not    responsible, 

he  is  forced  to  commit.  §  148. 

§  139.  Fraud  or  subterfuge   duress. 

§  140.  Guilt    always    follows    those        §  149. 
who  have  the   intent.  §  150. 

CORPORATIONS 

§  141.  Corporations  held  for  crime 
mala  prohibita. 

§  142.  Early     history     of     corpora-        §  151. 
tions. 

§  143.  For  what  acts  a  corporation       S  152. 
may   be   indicted.  S  153. 

S  144.  "Where  the  common  law  can- 
not reach,  the  legislature 
may. 

§  102.  All  persons   are   capable 
except  as  set  forth  in  this  chapter. 


IGNORANCE   OF   THE   LAWS 

Ignorance  of  the  law  excuses 

no  man. 
Justice  requires  that  general 

rule  have  exceptions. 
Exception    to    the    rule    that 

all    persons    are    presumed 

to  know  the  law. 
Exceptions    in    the    case     of 

larceny. 
Further    discussion. 
Wlierc    the    laws    are    plain 

and  beyond  doubt. 

IGNORANCE   OF    FACTS 

Ignorance  of  facts  excuse 
crime. 

Mistake. 

Homicide  committed  under 
misconception  of  facts  ex- 
cusable. 


of  committiiiii-  crime 


IDIOTS 

§  103.  Idiots  and  lunatics  freed  from  responsibility.  An 
idiot  is  one  who  from  natural  causes  from  birth  is  men- 
tally unable  to  distinguish  right  from  wrong.  Under 
this  head  is  included  persons  non  compos  mentis.  A 
lunatic  is  one  whose  intellect  is  permanently  or  tem- 
porarily impaired  by  disease  or  other  cause.  Jjunatics 
are  freed  from  responsibility  of  crime  if  at  the  time  of 
the  act  they  do  not  know  that  the  act  is  wrong.  It  is 
the  rule  of  the  common  law  that  a  crime  committed  dur- 
iiig  a  lucid  interval  is  just  as  culpable  as  if  the  accused 
was  entirely  sane.^ 


1 — When   at   the   time   of   an   of- 
fense, a   person   liaa   auHicient  men 


lal    (\-4iacity    In    uikIcisI  and    llic    iia 
tare   and   quality    of    the    particular 


Idiots,  Etc. 


83 


Non  compos  mentis  signifies  a  total  lack  of  reason  or 
power  to  reason,  equivalent  to  idiocy,  but  as  the  term  is 
generally  used,  it  means  a  weakness  and  imbecility  of 
mind  existing  to  such  an  extent  as  to  deprive  the  person 
of  the  capacity  to  conduct  the  ordinary  affairs  of  life.'' 

§  104.  Lucid  interval.  A  crime  committed  during  the 
pendency  of  a  lucid  interval  is  the  act  of  reason,  but  the 
difficulty  presents  itself  when  the  jurist  undertakes  to 
arrive  at  the  precise  point  where  lunacy  is  suspended  and 
reason  begins.^  There  is  not,  perhaps,  in  all  the  phases 
of  criminal  responsibility,  so  widely  differing  opinions 
among  jurists,  psychologists  and  medical  experts  as  pre- 
sented in  the  question  of  insanity.  The  proposition  is 
plain  and  incontrovertible  that  in  the  absence  of  mental 
power  to  discern  the  difference  between  right  and  wrong, 
or  to  know  that  the  particular  act  is  wrong  will  relieve 
the  perpetrator  of  responsibility.     The  important  ques- 


aet  or  acts,  constituting  tlie  crime, 
and  mental  capacity  to  kno^v 
whether  t!iey  Jo  right  or  wrong,  ho 
is  responsible  for  his  conduct  but  if 
he  does  not  possess  this  degree  of 
capacity,  he  is  not  responsible.  The 
truest  test  is  whether  the  defendant 
is  able  to  have  and  did  have  a  crim- 
inal intent  and  ability  to  judge  of 
the  right  and  Avrong  of  the  act 
charged.  Buckhard  v.  State,  18 
Tex.  App.  500. 

2— Com.  V.  Shriner,  58  Pa.  St. 
828;  Land  Coster  Bank  v.  Moose, 
78  Pa.  St.  407,  21  Am.  Eep.  24,  and 
note;  Hovey  v.  Chase,  52  Me.  304, 
83  Am.  Dec.  514;  Jackson  v.  King, 
4  Cow.  (N.  Y.)  207,  15  Am.  Dec. 
354. 

3 — For  a  discussion  of  the  lucid 
interval,  see  Rodger  v.  Walker,  6 
Pa.  St.  371;  Saxon  v.  Whitaker,  30 
Ala.  237;  Collins  v.  Ulmer,  45  Ala. 
378.      In    the    case    of    Overall    v. 


State,  15  La.  Ann.  515  showed  that 
the  defendant  was  subject  to  oc- 
casional or  temporary  attatks  of 
insanity  and  was  visited  by  one  of 
such  attacks  just  before  the  com- 
mission of  the  offense  and  was  not 
shown  to  have  recovered;  it  Avas 
held  that  the  law  presumed  the  in- 
sane condition,  continued  to  the 
commission  of  the  offense.  11th 
Amer.  &  Eng.  p.  112.  Lunacy  be- 
ing once  established  the  burden  is 
upon  the  party  claiming  through 
some  of  the  acts  of  the  lunatic  (in 
civil  cases)  to  show  that  it  was 
done  in  a  lucid  interval  and  a  re- 
turn of  sanity  being  proved,  the 
burden  is  upon  the  party  claiming. 
A  party  claiming  that  an  act  of 
a  lunatic  having  been  done  during 
a  lucid  interval  in  order  to  bind 
him  must  produce  clear  evidence  of 
his  return  to  sanity.  Gowart  v. 
Sellars,  5  Daw.  231. 


84  Criminal  Law 

tion  to  be  determined  is  how  to  discover  that  the  act 
complained  of  is  not  the  act  of  one  possessed  of  his 
faculties.* 

§  105.  Different  species  of  insanity.  In  the  Bellingham 
case,  for  the  murder  of  Sir  Spencer  Percival,  Lord  Chief 
Justice  Mansfield  observes  in  his  charges  to  the  jury: 
"That  there  are  various  species  of  insanity;  some  human 
beings  are  void  of  all  power  to  reason  from  their  birth; 
such  persons  cannot  be  guilty  of  any  crime.  There  is 
another  species  of  madness  in  which  persons  are  subject 
to  temporary  paroxysms  in  which  they  are  guilty  of 
extravagance.  This  is  called  lunacy.  If  these  persons 
were  to  commit  a  crime  when  they  are  not  affected  with 
the  malady  they  would  be,  to  all  intents  and  purposes, 
amenable  to  justice.  So  long  as  they  could  distinguish 
good  from  evil,  so  long  would  they  be  answerable  for 
their  conduct.  There  is  a  third  species  of  insanity,  in 
which  the  person  fancied  the  existence  of  an  injury,  and 
sought  an  opportunity  of  gratifying  revenge  by  some  hos- 
tile act.  If  such  persons  are  capable  in  other  respects  of 
distinguishing  right  from  wrong,  then  there  is  no  excuse 
for  any  act  of  atrocity  which  they  might  commit  under 
this  description  of  derangement.^ 

§  106.  The  decision  of  the  judges  in  the  McNaughton 
case.  In  the  McNaughton  case  the  House  of  Lords  put 
various  questions  to  the  fifteen  judges  and  they  agreed 
on  the  rule  of  insanity  to  be:  Question  1.  "What  is  the 
law  respecting  alleged  crimes  committed  by  persons  in- 
flicted with  insane  delusion  in  respect  to  one  or  more 

4 — Ruther  v.  State,  25  Tex.  623;  affected  with  insanity,  and  such  af- 

liuckliard    v.    State,    18    Tex.    599;  fection  was  the  cfllciont  cause  of  the 

King  V.  State,  9  Tex.  515.     A  just  act,    and    tliat    he    Avould    not   have 

and  a   reasonable  tost  in  all  cases  done  the  act,  l)ut  that  for  that  af- 

would  be  that,  whenever  it  should  fection  he  oujjht  to  ])e  acquitted." 

appear  from  all  the  evidence,  that,  5 — Bocks   Medical    .Turisprudcnco, 

at  the   time  of  doing  the  act,  the  vol.  1,  page  TC?. 
])riHonor  was  not  of  .sound  mind,  but 


Idiots,  Etc.  85 


particular  subjects  or  persons?  As,  for  instance,  where 
at  the  time  of  the  commission  of  an  alleged  crime  the 
accused  knew  he  was  acting  contrary  to  law,  but  did  the 
act  complained  of  with  the  view  and  under  the  influence 
of  some  insane  delusion  of  redressing  some  supposed  in- 
jury or  grievance  or  of  producing  some  supposed  public 
benefit. ' '  Answer  1.  ' '  The  opinion  of  the  judges  is,  that 
notwithstanding  the  party  committed  a  wrong  act  while 
laboring  under  the  idea  that  he  was  redressing  a  sup- 
posed grievance  or  injury,  or  under  the  impression  of 
obtaining  some  public  or  private  benefit,  he  was  liable  to 
punishment."  Question  2.  ''What  are  the  proper  ques- 
tions to  be  submitted  to  the  jury  when  a  person,  alleged 
to  be  afflicted  with  insane  delusion  respecting  one  or 
more  particular  subjects  or  persons,  is  charged  with  the 
commission  of  crime,  murder  for  example,  and  insanity 
is  set  up  as  a  defense?"  Answer  2.  "The  jury  ought,  in 
all  cases,  to  be  told  that  every  man  should  be  considered 
of  sound  mind  until  the  contrary  is  clearly  proven.  That 
before  a  plea  of  insanity  should  be  allowed  undoubted 
evidence  ought  to  be  adducted  that  the  accused  was 
of  diseased  mind  and  at  the  time  he  committed  the  act 
he  was  not  conscious  of  right  and  wrong.  The  opinion 
relates  to  every  case  in  which  a  party  is  charged  with 
an  illegal  act  in  which  a  plea  of  insanity  is  set  up.  Every 
person  is  presumed  to  know  the  law,  and  therefore  noth- 
ing can  justify  a  wrongful  act,  unless  it  is  clearly  proven 
that  he  does  not  know  right  from  wrong.  If  that  is  not 
satisfactorily  proved  the  accused  is  liable  to  punish- 
ment, and  it  is  the  duty  of  the  judge  to  so  instruct  the 
jury."  Question  4.  ''If  a  person  under  an  insane  de- 
lusion as  to  existing  facts  commits  an  offense  in  conse- 
quence thereof,  is  he  thereby  excused?"  Answer  4.  "If 
the  delusion  was  only  partial  the  party  accused  was 
equally  liable  with  the  person  of  sane  mind.  If  the  ac- 
cused killed  another  in  self  defense  he  would  be  entitled 
to  acquittal,  but  if  the  crime  was  committed  for  any  sup- 


86 


Criminal  Law 


posed  injury  lie  would  be  liable."  These  rulings  were 
made  in  1845  and  they  have  been  followed  in  the  Amer- 
ican courts.®    • 


6 — See  following  authorities : 
Boswell  V.  State,  63  Ala.  307;  2 
Law-son's  Cr.  Def.  352;  McAllister 
V.  State,  17  Ala.  434;  Lawson's  In- 
sanity, 219,  231,  221;  State  v.  Fel- 
ter,  35  La.  Ann.  67;  State  v.  Pike, 

49  N.  W.  399;  U.  S.  v.  Guiteau,  10 
Fed.  161;  Hopp  v.  People,  31  111. 
385,  83  Am.  Dec.  231;  Bradley  v. 
State,  31  Ind.  492;  Harris  v.  State, 
18   Tex.  App.   287;   State  v.  Jones, 

50  N.  H.  369;  Com.  v.  Kodgers,  7 
Met.  50,  867.  The  court  says:  "In 
every  case  although  the  accused 
may  be  laboring  under  partial  in- 
sanity, if  he  still  understands  the 
nature  and  character  of  his  act  and 
its  consequences,  and  has  a  knowl- 
edge that  it  is  wrong  and  criminal, 
and  a  mental  power  sufficient  to  ap- 
ply that  knowledge  to  his  own  case, 
and  to  know  that  if  he  does  the  act 
lie  will  do  wrong  and  receive  jnin- 
ishment,  and  possesses  will  sufficient 
to  resist  the  impulse  that  may  arise 
from  a  diseased  mind;  such  is  not 
sufficient  to  exempt  him  from  re- 
sponsibility to  the  law  for  his 
crimes. ' ' 

If  tlio  dotVndaiit  kill("(l  his  wife 
in  a  manner  that  would  be  (rimiiinl 
ind  unlawful  if  the  defendant  wore 
Han«,  the  verdict  should  be  "not 
guilty  ''  Ity  reason  of  insanity,  if  the 
killing  was  the  offspring  or  product 
of  mental  disease,  in  the  defendant. 
(2)  Neither  the  knowledge  or  delu 
flion  of  right  or  wrong,  nor  design 
nor  cunning  in  planning  and  execut- 
ing the  killing  and  escaping  or  evad- 
ing detection,  nor  ability  to  rorog 
nizc  ac(juaint!inc('s,  or  to  l.-ilmr  or 
to     triiiiHiii't     liiisincss,     or     manage 


affairs,  is  a  matter  of  law  to  test 
mental  disease:  but  all  tests  and 
symptoms  of  mental  disease  are 
purely  matters  of  fact,  to  be  deter- 
mined by  the  jury.  Whether  the 
defendant  had  a  mental  disease  and 
whether  the  killing  of  his  wife  was 
the  product  of  such  disease,  are 
questions  for  the  jury.  Insanity  is 
a  mental  disease  of  the  mind.  If 
the  defendant  had  a  mental  disease, 
which  irresistibly  compelled  him  to 
kill  his  wife,  if  the  killing  was  the 
product  of  mental  disease  in  him, 
he  is  not  guilty;  he  is  innocent — as 
innocent  as  if  the  act  had  been  pro- 
duced by  involuntary  intoxication, 
or  by  another  person  using  his  hand 
against  his  utmost  resistance.  An 
act  produced  by  mental  disease  is 
not  a  crime.  Insanity  is  not  inno- 
cent unless  it  produced  the  killing 
of  his  wife.  If  the  defendant  had 
an  insane  impulse  to  kill  his  wife, 
and  could  have  successfully  resisted 
it,  he  was  responsible.  Whether  it  is 
irresistible  is   the   question  of   fact. 

Whether  in  this  case  the  defend- 
ant had  an  insane  impulse  to  kill 
his  wife,  and  whether  he  could  have 
resisted   it  arc   (juestions  of   fact. 

(4)  Whether  an  act  may  bo  pro 
(luccil  by  ]):irtial  insanity,  when  no 
connection  can  be  shown  betwe<^n 
the  act  and  the  disease,  is  a  ques- 
tion of  fact.  (5)  The  defendant  is 
to  bo  acquitted  on  the  ground  of 
insanity,  unless  the  Jury  are  satis- 
fied beyond  a  reasonable  doubt,  that 
the  killing  was  produced  by  mental 
disease.  See  50  N.  H.  369.  James 
v.  State,  Ladd  judge,  in  rendering 
Ihc     opinidM     nf     the     conrt     says: 


Idiots,  Etc.  87 

§  107.  The  rule  in  insane  delusion;  as  to  supposed  and 
unreal  facts.  The  principle  seems  to  be  well  established 
in  insane  delusion  cases  that  if  the  delusion  produces  such 
an  impression  on  the  mind  of  tlie  accused  as  to  cause 
supposed  facts  to  appear  real  when  in  fact  they  do  not 
exist,  and  if  the  act  committed  under  such  delusive  im- 
pressions would  be  justifiable  or  a  good  defense  if  true, 
then  the  accused  should  not  be  punished."^  An  insane 
delusion  is  a  defense  to  crime,  where  it  would  excuse  the 
crime  if  the  facts  about  which  it  exists  are  true.  The 
doctrine  announced  in  the  above  is  predicated  upon  the 
McNaughton  case,  and  is  combated  by  some  very  re- 
spectable authorities. 


"When  the  defendant  had  mental 
disease  seems  to  be  as  much  a  ques- 
tion of  fact,  as  whether  thirst  and 
quickened  impulse  are  the  product 
of  fever.  That  it  is  a  difficult  ques- 
tion does  not  change  the  matter  at 
all.  The  difiiculty  is  intrinsic  and 
must  be  met  from  whatever  direc- 
tion it  may  be  approached.  They 
are  all  clearly  matters  of  evidence 
to  be  weighed  by  the  jury  upon  the 
question,  whether  the  act  was  the 
offspring  of  insanity.  If  it  was,  a 
criminal  intent  did  not  produce  it, 
and  if  it  was  a  criminal  intent  that 
produced  it,  it  is  a  crime. ' ' 

7— State  V.  Bowling,  16  S.  W. 
Ark.  658;  20  Neb.  333;  State  v. 
Lewis,  22  Pa.  241 ;  Parsons  v.  State, 
81  Ala.  577;  60  Am.  Rep.  193; 
Stone,  judge,  dissenting  summarizes 
as  follows:  (1)  Insanity  when  relied 
on  as  a  defence  to  a  prosecution  for 
crime,  is  a  mixed  question  of  laAv 
and  facts.  (2)  It  is  a  complete  de- 
fence to  an  accusation  of  crime,  if 
the  accused  at  the  time  he  committed 
the  act  was  afflicted  with  mental 
disease,  to  such  an  extent  to  render 


him  incapable  of  determining  be- 
tween right  and  wrong,  or  of  per- 
ceiving the  true  nature  and  quality 
of  the  act.  (3)  When  it  is  satis- 
factorily shown  that  the  accused 
was  mentally  diseased  at  the  time 
he  did  the  act,  which  is  the  conse- 
quence solely  of  such  mental  disease, 
without  it  would  not  have  been  done, 
this  is  a  complete  defence,  even  the 
defendant  knew  the  act  was  wrong. 

(4)  When  at  the  time  of  committing 
the  act  charged,  the  defendant  was 
laboring  under  a  diseased  mind, 
known  as  a  delusion,  illusion  or 
hallucination  and  the  act  done  was 
solely  the  result  of  such  mental  dis- 
ease, connected  with  and  growing 
out  of  it,  as  effect  follows  cause 
without  which  the  act  would  not 
have  been  done,  the  defendant  should 
be  acquitted  on  the  plea  of  insanity. 

(5)  No  form  of  emotional  or  moral 
insanity  is  a  defence  against  a 
criminal  accusation.  Eyan  v.  Peo- 
ple (Colo.),  1917  C,  Anno.  Cas.  605; 
60  Colo.  425,  153  Pac.  756.  See 
note  1917  C.  Anno.  Cas.  609. 


88  Criminal  Law 

§  108.  The  right  and  wrong  theory  of  insanity.  In  the 
Parsons  case  it  was  held  to  be  the  law :    That  where  there 
is  no  capacity  to  distinguish  right  from  wrong,  as  applied 
to  the  particular  act,  there  is  no  legal  responsibility. 
Where  there  was  such  a  capacity  the  defendant  is  never- 
theless not  legally  responsible  if  by  reason  of  duress  or 
mental  disease  he  has  so  far  lost  the  power  to  distinguish 
right  from  wrong  as  not  to  avoid  doing  the  act  in  ques- 
tion, so  that  his  free  agency  at  the  time  the  alleged  crime 
was  committed  was  so  connected  with  the  said  disease, 
in  the  relation  of  cause  and  effect,  as  to  have  been  the 
product  of  insanity  or  offspring  of  insanity.®    1.  It  is  very 
ably  contended  by  the  learned  Judge  Summerville,  ren- 
dering the  opinion  for  the  court,  that  insanity  is  purely 
a  disease  and  physical  defect  of  the  mind,  and  the  ques- 
tion whether  a  person  is  sane  is  purely  one  of  fact  for 
the  juiy  to  determine  upon  all  the  evidence  before  them, 
and  there  is  no  question  of  law;  in  other  words,  it  is  con- 
tended that  the  courts  have  no  authority  upon  any  given 
statement  of  facts  to  say  to  the  jury  that  such  facts  make 
a  case  of  sanity  or  insanity.     He  sums  up  as  follows: 
''If  the  defendant  at  the  time  of  the  commission  of  the 
offense  is,  as  a  matter  of  fact,  afflicted  with  a  disease  of 
mind  so  as  to  be  either  idiotic  or  otherwise  insane.   2.  If 
such  be  the  case,  did  he  know  right  from  wrong,  as  ap- 
plied to  the  particular  question?    If  he  did  not  have  the 
knowledge  he  is  not  legally  responsible.    3.  If  he  did  not 
have  such  knowledge  he  may,  nevertheless,  not  be  legally 
responsible  if  the  two  following  conditions  concur:     1. 
If  by  duress  of  such  mental  disease  he  so  far  lost  the 
power  to  choose  between  right  and  wrong,  to  avoid  the 
act  in  question,  his  fre'e  agency  must  at  the  time  be  de- 
stroyed; 2.  and  at  the  time  the  alleged  act  was  committed 

8_St!ite  V.   Parsons,  21  So.  854;        :!    S.   W.   539;    Rather   v.   State,   25 
Louche  V.  State,  22  Texas  App.  279;        Tex.  App.  62;}. 
r,H   A  til.   Kcp.  6.^8,  :t  S.  W.  5:!9;   I<1. 


Idiots,  Etc.  89 

such  mental  disease  existed,  in  tlie  relation  of  cause  and 
effect,  as  to  have  been  the  product  of  it  solely." 

§  109.  The  burden  is  on  the  defendant  to  show  inca- 
pacity. The  defendant  must  show,  the  burden  of  proof 
being  on  him,  that  he  did  not  know,  at  the  time  of  the 
act,  right  from  wrong  as  to  the  particular  act.  It  is  not 
enough  that  the  defendant's  intellect  had  been  impaired 
by  disease  or  other  cause,  but  it  must  be  shown  by  evi- 
dence satisfactory  to  the  jury  that  by  reason  of  the  dis- 
ease or  injury  at  the  time  of  the  act  that  he  could  not 
distinguish  right  from  wrong,  and  that  he  did  not  know 
at  the  time  the  nature  and  the  quality  of  the  act.^ 

§  110.  The  above  rule  is  not  in  accord  with  the  doctrine 
of  irresistible  impulse.  It  seems  that  in  cases  where  the 
defense  is  that  there  was  an  irresistible  impulse  to  commit 
the  crime  the  rule  in  the  preceding  section  would  not  be 
the  law,  for  it  is  generally  conceded  by  the  authorities 
upon  this  subject  that  one  may  be  so  mentally  diseased 
as  to  be  conscious  of  the  nature  and  the  quality  of  the 
act,  and  at  the  same  time  be  so  wanting  in  will  power  as 
to  render  them  incapable  of  resisting  the  doing  of  the 
act.^®  The  doctrine  of  irresistible  impulse  as  a  defense  to 
crime  will  be  noticed  further  as  we  proceed,  but  the  ten- 
dency of  the  authorities  is  to  no  longer  permit  this  char- 
acter of  defense. ^^ 

9— State    V.    Lane,    93    Mo.    547,  (Midi.)   533,  90  Mich.  448;  Smith  v. 

5  S.  W.  889;  State  v.  Leach,  3  S.  W.  State,  55  Ark.   259,   19   S.  W.   237; 

539;   State  v.  Mowry,  37  Kan.  369,  Com,  v.  Gerade,  145  Pa.  St.  289,  22 

15  P.  282;  State  v.  Eeidell,  9  Houst.  Atl.  464;  Bowling  v.  State,  54  Ark. 

(Del.)    470,   14   Atl.   550;    State   v.  588;  People  v.  Wood,  126  N.  Y.  249, 

Giebel    (Tex.),   12   S.   W.   591;    Id.  27  N.  E.  362;   People  v.  McNulty, 

28  Tex.  App.   151;    State  v.  Lewis,  93  Cal.  427;   People  v.  Bowden,  90 

20  Nev.   333,  8  Am.   Cr.   Rep.   594,  Cal.   195,  27  Pac.  201;    Kearney  v. 

22  Pac.  241;   Com.  v.  Farris,   (Ky.)  State,  68  Miss.  233;  Miller  v.  State, 

1    S.   W.   729;    People   v.    Nolen,    7  3  Wyb.  657,  29  Pac.  136. 
N.  Y.  Com.  Rep.   134.  11— People    v.    Hubert,    119    Cal. 

10— People    V.    Slack,    51    N.    W.  210,   63    Am.   St.   Rep.   72,   51   Pac. 


90  Criminal  Law 

Emotional  or  moral  insanity,  being  a  perverted  and  a 
generally  evil  inclined  turn  of  mind,  is  no  longer  regarded 
by  the  authorities  as  a  sufficient  defense  to  the  commis- 
sion of  crime  when  unconnected  with  disease  or  injury 
to  the  mind.  Nor  is  that  of  irresistible  impulse,  resulting 
from  a  mere  moral  perversity  or  wicked  propensities 
and  habits.  A  partially  insane  condition  of  the  mind 
may  be  a  defense,  if  the  act  is  in  response  to  and  in  fur- 
therance of  the  promptings  of  the  disease.  It  must,  how- 
ever, arise  out  of  the  disease,  and  that  but  for  the  dis- 
ease it  would  not  have  been  committed. 

MORAL  INSANITY 

§  111.  Moral  insanity  defined.  There  is  another  class 
of  insanity  tenned  by  specialists  on  mental  diseases  and 
disorders,  "moral"  insanity.  The  existence  of  this  kind 
of  insanity  is  now  denied  by  the  authorities  and  has  no 
place  in  our  jurisprudence  as  a  defense  to  crime.  It  is 
defined  to  be  "a  morbid  perversion  of  the  natural  feel- 
ings, affections,  inclinations,  tempers,  habits,  and  moral 
disposition,  without  any  notable  lesion  of  the  intellect, 
and  particularly  without  any  maniacal  hallucinations. 
It  is  characterized  by  a  waywardness  of  disposition  and 
loss  of  moral  force  and  general  malignant  conduct,  but 
with  full  knowledge  of  the  character  of  the  reprehensible 
conduct.  Mr.  Wharton  in  his  exhaustive  work  on  the  crim- 
inal law  defined  moral  insanity  as  a  supposed  insanity  of 
tlic  moral  system,  co-existent  witli  nuMilnl  sanity.  It 
appears  that  nuuiy  cases  have  been  before  the  courts,  but 
it  nowhere  appears  that  this  character  of  derangement  of 
the  moral  system,  independent  of  mental  imbecility,  is 
sufficient  to  excuse  legal  responsibility.  It  is  established 
in  America  that    moral   iii^atiily,  as  (lisiiiinMiisluMJ    from 

:J29;    iVoplo   V.    M<-C;irlliy,    llf)    (.'.-il.         ndr    In    I'mpl,.    \.     Ihihrit,    d:!    Am. 
L'.o.'j,    »(i    I':ic.     107:'..      Sfc    c.xtciiHivi-        SI.    K.-p.    l(l(i  lOl. 


Idiots,  Etc. 


91 


irresistible  impulse,  cannot  be  invoked  as  a  defense  to 
crime.  ^'^ 


IREESISTIBLE  IMPULSE 


§  112.  Irresistible  impulse  defined,  etc.    Irresistible  im- 
pulse is  an  irresistible  morbid  inclination  to  do  a  par- 


12— Bei^k  on  Med.  Jour.,  Vol.  2, 
page  22;^.  The  doctrine  of  moral  or 
irresistil>lo  impulse  coexistent  with 
mental  sanity  has  no  foundation  in 
psychology  nor  support  in  law. 
Boswell  V.  State,  35  Am.  Eep.  20. 
The  defense  is  peculiarly  liable  to 
abuse  in  criminal  cases,  that  the  ut- 
most care  and  cii'cumspection  should 
be  required  on  the  part  of  the  court, 
in  presenting  to  the  jury  the  legal 
principles  relating  to  it.  Moral  in- 
sanity to  be  available  as  an  exemp- 
tion for  crime,  must  be  shown  to  ex- 
ist with  such  violence,  as  to  render 
it  impossible  for  the  party  to  do 
otherwise  than  to  yield  to  its 
promptings;  and  whether  this  im- 
possibility of  resistance  arises  from 
the  subversion  of  the  intellect  by  the 
morbid  impulse  or  propensity,  or 
from  an  overwhelming  destruction 
of  the  faculties  of  the  mind,  to  the 
extent  of  rendering  the  party  incap- 
able of  governing  his  actions,  is  a 
point  of  not  much  practical  impor- 
tance."  Scott  V.  Com.,  83  Am.  Dec. 
461.  The  jury  should  consider 
moral  maria,  if  satisfied  of  its  ex- 
istence, in  determining  the  degree 
of  crime  and  they  should  give  it 
such  weight,  as  it  is  entitled  to  un- 
der the  circumstances.  People  v. 
Hai,  45  Am.  Eep.  651 ;  Anderson  v. 
State,  21  Am.  Eep.  669;  Looney  v. 
State,  38  Am.  Eep.  646.  The  court 
in  Parson 's  case  says  on  page  208, 
60  Am.  Eep.  that  ' '  It  is  almost 
needless  to  sav  that  where  one  does 


not  act  under  duress  of  diseased 
mind  or  insane  delusion,  he  cannot 
claim  to  be  shielded  from  the  pun- 
ishment for  crime  on  the  ground  of 
insanity.  Insanity  proper  is  more 
or  less  a  mental  derangement  coex- 
isting, it  is  true,  with  the  disturb- 
ance of  the  emotions,  affection  and 
other  moral  powers.  A  mere  emo- 
tional or  moral  insanity,  so  uncon- 
nected with  disease  of  the  mind  or 
irresistible  impulse,  resulting  from 
a  mere  moral  obliquity  or  wicked 
propensities  or  hal)its,  is  not  recog- 
nized as  a  defense  to  crimes  in  our 
courts." 

' '  This  character  of  insanity  is 
variously  styled  moral,  or  emo- 
tional, or  impulsive  or  paroxysmal 
insanity.  It  is  known  among  medi- 
cal writers,  as  lesion  of  the  will.  This 
peculiarity  is  said  to  be  that,  while 
the  mental  perception  is  impaired, 
the  mind  is  powerless  to  control  the 
will;  that  its  unhappy  subject  knows 
the  right  and  desire  to  pursue  it ; 
that  some  mysterious,  uncontrollable 
impulse  compels  him  to  commit  the 
wrong.  The  possibility  of  such — 
the  existence  of  such  submental  con- 
dition is  too  doubtful,  the  theory  is 
too  problematical  and  too  incapable 
of  practical  solution  to  afford  a  safe 
basis  for  adjudication.  Hawe  v. 
State,  11  Neb.  537,  38  Am.  Eep. 
375;  Gentry  v.  State,  32  Am.  Eep. 
99;  Steven  v.  State,  99  Am.  Eep. 
634. 


92  Criminal  Law 

ticular  act  or  a  series  of  acts  connected  with  the  same 
thing,  with  which  the  propensity  toward  the  commission 
of  the  act  is  so  powerful  and  overwhelming  that  the  will 
to  resist  is  overcome,  although  the  person  may  know  the 
criminality  of  the  act. 

It  impels  the  commission  of  a  particular  act.  Moral 
insanity  prompts  all  kinds  of  badness;  being  a  general 
maliciousness  and  loss  of  moral  recognition  co-existent 
with  sanity.  The  difference  being  that  in  the  former 
the  will  is  overcome  by  a  counteracting  and  opposing 
inclination  of  impulse.  In  the  latter  the  will  is  free  to 
act,  but  chooses  to  act  in  a  general  malicious  manner.^^ 

§  113.  Must  be  act  of  diseased  mind.  General  imbe- 
cility or  weakness  of  the  mind  by  any  cause,  which  is  suf- 
ficient to  overcome  free  agency  and  action  of  the  mind 
having  its  seat  in  a  diseased  mind  will  be  sufficient  to 
excuse  crime.  If  there  is  sufficient  will  force  to  resist 
the  impulse  it  will  not  excuse  the  act. 

If  by  reason  of  perverted  and  morbid  propensities  pro- 
duced by  disease  or  injury  to  the  mental  faculties,  not 
amounting  to  the  overthrow  of  reason  the  act  would  be 
regarded  as  that  of  a  sane  person. 

The  ''right"  and  ''wrong"  theory  and  the  "uncon- 
trollable impulse"  each  have  support  in  the  decision  of 
the  courts,  but  as  we  have  already  stated,  the  doctrine  of 
"uncontrollable  impulse"  is  not  generally  recognized  by 
the  courts,  but  the  latter  has  much  support  in  the  reasons 
advanced  by  both  decisions  of  the  court  as  well  as  by 
the  medical  profession.  Why  should  criminal  responsi- 
bility be  attached  if,  in  fact,  the  accused,  because  of  his 

13 — Smith  V.  State,  55  Ark.  25,  ant,  or  if  some  controlling^  mental 
18  S.  W.  237;  Leach  v.  State,  22  or  physical  disease  was  in  truth  tlie 
Tex.  App.  279,  held:  If  it  is  true  acting  power  within  him,  which  ho 
that  the  defendant  took  the  life  of  could  not  resist,  and  he  was  im- 
the  deceased  and  at  the  time  the  polled,  without  intent,  reason  or 
mental  and  physical  machine  had  purpusc,  ho  could  not  be  account- 
slipped    from   cfintrol   of   flic   (b'fcnd  ;ililf    In    tin'    l;i\v. 


Idiots,  Etc.  93 

mental  condition,  had  no  will  to  resist  the  impulse?  If 
it  is  true  that  such  a  condition  is  possible,  why  should 
one  be  held  to  criminal  responsibility  for  an  act  he  had 
no  volition  in  committing.  The  law  has  always  recog- 
nized the  infirmity  and  frailty  of  the  human  mind,  and 
in  response  to  this  principle  has  reduced  homicide  in  the 
heat  of  passion  to  man-slaughter  upon  the  theory  that  the 
mind  was  incapable  of  cool  reflection.  If  the  impulse  is 
of  such  a  nature  as  to  destroy  the  will  entirely  as  to  the 
particular  act,  in  what  does  it  differ  from  the  case  of 
sudden  anger,  except  in  degree?  The  ''right"  and 
''wrong"  theory  is  predicated  upon  the  reason  that  the 
perpetrator  does  not  know  that  the  act  is  wrong,  and  the 
uncontrollable  impulse  is  upon  the  reason  that  the  perpe- 
trator has  no  volition  in  staying  the  physical  act.  In 
support  of.  these  two  theories  see  the  authorities  below, 
notes  ^*  and  ^^. 

INTOXICATION 

§  114.  Intoxication  may  be  shown  as  a  mitigation  of 
the  crime  and  to  negative  malice.     Mania  a  portu,  or 

14— The  recent  decisions  from  the  Tenu.   198,   180   S.  W.   168;    Hogue 

jurisdictions  previously   repudiating  v.  State  (Tex.),  150  S.  W.  627;  Mi- 

the  irresistible  impulse  doctrine  ad-  keska  v.   State    (Tex.),   182   S.   W. 

here  to  the  view  and  recognize  the  1127;  State  v.  Mevrhinney,  43  Utah 

"right  and  wrong  test"  as  the  sole  135,  Ann.  Gas.  1916  C  537,  134  Pac. 

criterion  of  responsibility.     State  v.  632,   L.   E.    A.    1916  D    590. 

Riddle,    245    Mo.    451,    Ann.     Gas.  15 — The  doctrine  that  an  irresist- 

1914  A,  896,  150  S.  W.  1044,  43  L.  ible   impulse   resulting   from   a   dis- 

R.     A.     (N.     S.)     150;     People    v.  ordered  mind  relieves  from  criminal 

Schmidt,  216  N.  Y.  324,  Ann.  Gas.  responsibility  though  the  person  is 

1916  A,  978,  110  N.  E.  945,  L.  R.  A.  capable    of    distinguishing    between 

1916  D,  519;    State  v.   Gooper,   170  right  and  wrong  with  respect  to  the 

N.  C.   719,  87   S.   E.   50;    Adair  v,  act  in  question  finds  support  in  a 

State,  6  Okla.  Grim.  284,  118  Pac.  number  of  recent  decisions.     Bell  v. 

416,  44  L.  R.  A.    (N.  S.)    119;   Al-  State,  120  Ark.  530,  180  S.  W.  186; 

berty  v.  State,  10  Okla.  Grim.  616,  Hall    v.    Gom.,    155    Ky.    541,    159 

140  Pac.  1025,  52  L.  R.  A.   (N.  S.)  S.    W.    1155;    State   v.    Leakey,   44 

248;  Smith  V.  State,  (Okla.)  155  Pac.  Mont.  354,   120  Pac.  234;   Doherty 

699;    State  v.  Hassing,  60  Ore.   81,  v.  State,  73  Vt.  380,  50  Atl.  1113; 

118  Pac.  195;  Watson  v.  State,  133  Lowe  v.  State,  118  Wis.  641,  96  N. 


94 


Criminal  Law 


delirium  tremens,  is  an  excuse  for  crime  when  it  is 
shown  that  at  the  time  of  the  commission  of  a  crime  the 
party  was  in  such  a  condition.  There  is  no  difference 
between  insanity  produced  by  the  use  of  intoxicating 
liquors  than  insanity  produced  by  any  other  means,  pro- 
vided the  effect  has  been  to  produce  delirium  tremens, 
or  any  other  settled  impairment  of  the  mind  or  fixed 
insanity.  Temporaiy  insanity  produced  by  the  voluntary 
use  of  liquors  will  not,  of  itself,  be  an  excuse  for  crime 
committed  w^hile  in  that  condition.^®  A  state  of  intoxi- 
cation at  the  time  of  the  commission  of  a  crime  may  be 
proven  for  the  purpose  of  showing  a  lack  of  a  criminal 
intent.  Thus  in  the  case  of  murder  it  is  proper  for  the 
defendant  to  show  that  he  was  in  such  a  condition  that 
he  could  not  have  formed  a  criminal  intent  at  the  time  of 
the  homicide.^'  In  the  courts  of  Missouri  voluntaiy  in- 
toxication cannot  be  shown  by  the  defendant  for  the  pur- 
pose of  mitigation  of  the  crime  committed  while  in  that 
condition. ^^ 


W.  417.  And  see  the  reported  case. 
See  also  State  v.  Kelley,  74  Vt.  278, 
52  Atl.  434. 

16— Mayfield  v.  State,  44  Tex. 
59;  "Voluntary  drunkenness  fur- 
nishes no  excuse  or  justification  for 
crime.  However,  if  you  lind  that  he 
was  so  drunk,  and  was  unable  to 
form  the  criminal  intent  necessary 
to  commit  the  crime  charged,  then 
you  will  acquit  him";  the  court  in 
Scott  V.  State,  12  Tex.  App.  ;n. 
See  Ward  v.  State,  19  Tex.  App.  234 
for  a  discussion  of  insanity  pro- 
duced by  hal)itual  intoxication.  See 
72  Am.  Dec.  484;  Carter  v.  State, 
62  Am.  Dec.  3.19;  People  v.  Travers 
(Cal.),  26  Pac.  88;  Id.  88  Cal.  233. 

17_l«eople  V.  King,  27  Cal.  507, 
87  Am.  Dec.  95;  People  v.  Hnrris, 
29  Cal.  683;  Wliilefonl  v.  Cdiii.,  IS 
Aril.   \)i'c.  782  note;    Kccinm  \.  ('iiin., 


44  Pa.  St.  56,  84  Am.  Dec.  414  and 
note. 

18 — State  V.  Deustrow,  the  court 
speaking  through  Garrett,  judge, 
says:  "that  if  the  jury  believes 
that  the  defendant  has  been  volun- 
tarily addicted  to  the  use  of  in- 
toxicants for  a  long  period  of  time, 
prior  to  the  homicide,  and  that 
shortly  or  immediately  before  the 
homicide,  the  defendant  drank  vol- 
untarily large  quantities  of  intoxi- 
cants, and  that,  being  under  the 
inihu'uce  of  the  same,  shot  and 
killed  his  wife  while  laboring  under 
sucli  temporary  frenzy  or  madness, 
and  while  being  unconscious  of  the 
n;iture  and  the  (luality  of  the  act, 
.-I lid  siii-li  tciiiporary  frenzy  or  mad- 
ness, anil  siicli  iinconsciouHness,  was 
tlicii  iiiicl  tlii'iT  tlic  iinnu'diate  result 
(if    iiitdxic.'it  ill;,'     liquors,    tlicn    such 


Idiots,  Etc.  95 

§  115.  Where  one  voluntarily  imbibes  liquor  for  the  pur- 
pose of  nerving  himself  to  the  commission  of  crime,  can- 
not show  the  same  in  mitigation.  The  rule  is  well  settled 
that  defendant  while  in  the  full  possession  of  his  facul- 
ties determines  to  commit  a  criminal  act  and,  in  pur- 
suance thereof,  for  the  purpose  of  nerving  himself  for. 
the  work,  voluntarily  makes  himself  drunk,  such  drunk- 
enness will  not  mitigate  the  act.'^^  Intoxication  in  this 
case  is  always  the  cause  of  the  act,  but  the  intent  to  com- 
mit the  act  is  the  cause  of  the  intoxication.  But  if  at 
the  time  of  the  commission  of  the  crime  the  defendant  is 
drunk  and  had  no  previously  formed  or  premeditated 
design  to  commit  it,  then  he  may  show  this.^® 

§  116.  The  result  of  experience  of  those  who  commit 
crimes.  It  is  the  result  of  experience  that  perpetrators 
of  violent  crimes  frequently  nerve  themselves  for  the 
deed  by  the  free  use  of  intoxicating  liquors,  and  if  vol- 
untary intoxication  was  an  excuse  for  crime  all  crim- 
inals would  first  make  themselves  drunk  before  com- 
mitting a  crime.  Insanity  in  many  instances  is  the  result 
of  abuse  or  dissipation  voluntarily  indulged.  The  free 
and  voluntary  use  of  intoxicating  liquors  as  narcotic 
often  produces  a  fixed  and  permanent  insanity  and  im- 
pairment of  the  intellect.  In  such  cases  reason  is  de- 
throned or  totally  destroyed.  Crime  committed  by  one 
while  laboring  under  such  effects  will  be  free  from  crim- 

temporary    frenzy    or    madness   and  19 — Peojjle    v.    Gabbutt,    97    Am. 

such  unconsciousness,  afford  neither  Dec.    162,    17    Mich.    9;    People    v. 

justification,    mitigation    or    excuse  Lane,  11  Cal.  379,  id.  34  Pac.  856; 

for  the  shooting  of  his  wife,  nor  can  Ayers  v.  State,  26  S.  W.  386. 

you     consider     it     in     determining  20 — State  v.  Hanson,  25  Pac.  976 ; 

whether       defendant       deliberately.  Garner   v.    State,    28    Fla.    113,    29 

willfully  and  premeditatedly,  did  the  A.  S.  E.  232,  9  So.  845;  Springfield 

shooting.     He  is  equally  guilty  un-  v.  State  (Ala.),  11  So.  250;  State  v. 

der  the  law,  as  if  he  had  been  sober  Tom   (Ore.),  30  Pac.  307;   Kelly  v. 

at  the  time   of  the  shooting."      58  State,  20  S.  W.  357. 
S.   W.   554;    Contra   Ayers  v.   State 
(Tex.),    26    S.    W.    396;    People    v. 
Young,  36  Pac.  770,  102  Cab  411. 


96  Cbiminal  Law 

inal  intent.  It  is  the  law  in  many  states  to  measure  the 
intent  by  the  degree  of  intoxication,  that  is,  if  the  in- 
toxication is  so  overwhehning  at  the  time  of  the  perpe- 
tration of  the  act  as  to  produce  temporary  insanity,  that 
such  intoxication  will  reduce  murder  from  the  first  to 
the  second  degree,  and  it  seems  that  in  all  cases  involv- 
ing a  malicious  intent  the  degree  of  intoxication  may  be 
shown  for  the  i)urpose  of  determining  the  intent.^^ 

§  117.  The  result  of  voluntary  intoxication  in  homicide. 

Voluntary  intoxication  will  reduce  the  charge  of  murder 
from  the  first  to  the  second  degree.^^  When  the  ques- 
tion is  whether  the  defendant  committed  the  crime  with 
malice,  evidence  of  intoxication  may  be  given  to  show 
that  at  the  time  the  defendant  was  in  such  a  condition 
of  mind  that  he  could  not  form  a  malicious  intent.''^  So 
drunkenness  may  be  shown  at  the  time  of  the  act  that 
the  defendant  w^as  in  such  a  physical  relapse  that  it  was 
impossible  for  him  to  have  committed  the  crime.^*  In 
no  instance,  we  believe,  is  it  contended  that  voluntary 
intoxication  producing  a  frenzy  or  temporary  in- 
sanity is  an  absolute  excuse  for  crime  notwithstand- 
ing the  physical  fact  of  committing  the  act  might 
have  been  unknown  to  the  defendant  at  the  tiane 
of  its  committal.  This  is  the  doctrine  in  the  Deu- 
strow  case,  as  we  understand  it,  tried  in  the  Mis- 
souri courts;  however,  it  seems  to  be  generally  ad- 
mitted that  the  fact  of  intoxication  should  be  submitted 
to  the  jury  to  determine  whether  the  defendant  could 

21— McCarty  V.  state,  4  Tex.  App.  2!!— reople   v.   Young    (Cal.),   36 

461 :      If    one    becomes    voluntarily  Pac.  770 ;  Jenkins  v.  State,  18  S.  E. 

drunk,  who  prior  to  his  intoxicMtion  (Ga.)    992;    Keton   v.   Com.    (Ky.), 

intended    to    kill    another,    the    in-  92  Ky.  522;  Lyle  v.  State,  31  Tex. 

toxical  ion     would     have     no     effect  App.   103,   19   S.   W.   90.3. 

upon   the  act.     Amr.  Dig.   1892,  P.  24— Kennon     v.     Com.,     84    Am. 

2485,   sees.   2:?6-2:i7  239-240.  Dec.  414;  B:irnh:irl  v.  St:it<',  82  Wis. 

22— .TamiHon    v.    People,    14.",    111.  2:5,   51   N.   W.   lOOO. 
:(57.  :!4  N.  E.  48(5;  State  v.  O'Neil, 
51    Kan.   651,  24   L.   K.    A.   555.   ?,:>, 
I'ac.  487. 


Idiots,  Etc.  97 

have  possessed  at  the  time  sufficient  reason  to  form  a 
criminal  intent.  It  is  not  a  matter  of  law,  but  one  of 
fact.  Intoxication  may  reduce  the  killing;,  otherwise 
murder,  to  manslaughter.^* 

§  119.  Application  of  the  rule  to  those  of  hypnotic 
influences.  It  seems,  upon  principle,  that  persons 
laboring  under  hypnotic  influences  cannot  be  held  re- 
sponsible for  acts  committed  while  thus  circumstanced. 
This  will  depend,  however,  upon  the  question  whether 
the  effects  were  so  powerful  as  to  overcome  free  action 
and  volition  of  will.  That  hypnotism  occupies  the  place 
among  criminal  agencies  there  can  be  no  doubt,  and  that 
its  "influences  are  very  marked  upon  some  persons.  This 
question  appears  not  to  have  been  before  the  courts  in 
this  country  in  very  many  cases.  It  has  been  often  dis- 
cussed in  law  magazines,  but  so  far  as  we  are  advised, 
the  courts  have  not  yet  excused  hypnotized  persons  from 
criminal  responsibility.  In  the  case  of  People  v.  Ebanks, 
117  Cal.,  652,  as  an  excuse  for  the  crime  the  defendant 
offered  to  show  by  witnesses  that  he  was  an  expert  hyp- 
notist, and  that  he  had  hypnotized  the  defendant,  and  that 
when  hypnotized  defendant  made  a  statement  to  him  in 
accordance  to  his  knowledge  of  the  affair  of  which  he 
was  charged.  The  trial  court  stated  in  sustaining  objec- 
tions: "The  law  of  the  United  States  does  not  recognize 
hypnotism.  It  would  be  an  illegal  defense  and  I  cannot 
admit  it."  Upon  appeal  to  the  supreme  court  the  lower 
court  was  sustained.  In  the  note  to  the  40th  L.  R.  A., 
being  the  same  case,^®  such  scant  authorities  as  there  are 
may  be  found.  The  idea  is  advanced  that  hypnotism 
is  something  that  cannot  be  forced  upon  a  person;  and, 

25— Garner    v.    State,    28    (Fla.)  398;    Carpenter  v.   Com.,  92    (Ky.) 

113,   29    A.    S.    R.    232,   9   So.    845.  452,  18  S.  W.  9. 

On  question  of  premeditation,  Cres-  26 — People  v.  Ebanks   (Cal.),  40 

man  v.   State,   54   Ark.   283;    Fous-  L.  R.  A.  269;   People  v.  Worthing- 

ville  V.   State,   91   Ala.   39;    Lecper  ton,  105  Cal.  166. 
V.  State,  29  Tex.  App.  63,  14  S.  W. 
C.  L.— 7 


98  Criminal  Law 

therefore,  one  who,  kiiowmg  that  while  in  a  state  of  hyp- 
nosis he  may  be  compelled  to  commit  crime,  voluntarily 
suffers  himself  to  be  placed  in  that  condition  may  be  sup- 
posed to  have  anticipated  all  consequences  of  his  acts 
and  agreed  to  become  responsible  for  them,  and  that 
would  apply  to  a  case  in  which  it  was  suggested  by  the 
hypnotist  that  a  false  state  of  facts  existed,  which 
would,  if  true,  justify  a  commission  of  the  offense.^''' 

§  120.  Voluntary  intoxication,  what  is,  etc.  The  ques- 
tion may  be  asked,  what  constitutes  voluntary  intoxica- 
tion. The  proposition  that  voluntary  intoxication  "will 
not  exempt  from  the  responsibility  of  crime"  is  based 
upon  the  ground  that  the  defendant,  in  the  exercise  of 
his  will  and  free  agency,  voluntarily  chooses  to  put  him- 
self in  such  a  condition  by  the  use  of  intoxicating  agents, 
that  his  reason  is  temporarily  dethroned  and  that  such 
suspension  of  reason  is  due  to  his  own  fault.  We  find 
no  fault  in  this  doctrine.  Suppose  a  person  voluntarily 
indulging  is  of  a  peculiar  nervous  constitution  and  knows 
it  not,  and  drinks  a  small  quantity  of  liquor  only,  gets 
crazy  drunk;  suppose,  again,  that  the  defendant  is  in  the 
habit  of  drinking  small  quantities  at  regular  intervals 
without  any  damaging  effects,  and  measuring  his  capacity 
by  fonner  experience,  drinks  the  same  quantity  and  be- 
comes drunk  contrary  to  his  expectations  and  previous 
experience.  In  these  instances  is  drunkenness  volun- 
tarily assumed?  Experience  and  observation  teach  us 
that  in  some  conditions  of  the  ])hysical  system  intoxi- 
cants have  a  more  damaging  effect  upon  the  mind  than 
at  other  times.  Would  a  man,  not  knowing  iliis  peculiar 
condition,  drink  a  quantity  of  whiskey,  such  as  he  usually 
drinks  and  witliout  a  Itnd  effect,  but  at  this  jjarticular 
time  makes  him  drunk,  p.iitially  destroys  his  reason,  be 
uiiilly  of  \(»liint;ii\\'  iiiloxic.-il ion ;'  M'liese  questions 
siionld,  ill  our  oi)iiiioii,  he  snl)ini1U'(l  lo  llic  jui'v  for  tlie 

27 — '.i   Aniuriciiii    I^awycr,  o'-iij. 


Idiots,  Etc.  99 

purpose  of  showing  the  intent  and  for  the  further  pur- 
pose of  rebutting  the  presumption  that  every  person  in- 
tends the  probable  consequences  of  their  acts. 

§  121.  Defendant  presumed  to  be  sane.  In  the  prose- 
cution of  crime  the  state  is  compelled  to  establish  beyond 
a  reasonable  doubt  the  defendant's  guilt.  All  persons 
are  presumed  to  be  sane  and  in  the  full  possession  of 
their  faculties.  When  it  is  shown  beyond  a  reasonable 
doubt  that  the  defendant  is  guilty  of  the  act  charged, 
the  plea  of  insanity  being  in  the  nature  of  confession  and 
avoidance,  the  burden  is  then  on  the  defendant  to  show 
his  incapacity  to  commit  the  particular  crime  charged.''^ 

§  122.  Further  discussion  of  the  rule  of  the  preceding- 
section.  The  rule  in  the  preceding  section  is  the  general 
rule  and  is  supported  by  the  weight  of  authority,  and  the 
burden  is  on  the  defendant  in  establishing  his  insanity.^^ 

Other  courts  hold  that  sanity  is  an  element  of  a  crime, 
and  it  devolves  on  the  state  to  establish  this  element  by 
proof,  and  that  the  presumption  of  sanity  is  sufficient 
proof  of  it  until  it  is  repelled  by  the  counterposing  proof 
of  the  defendant.  The  authorities  seem  to  be  overwhelm- 
ing in  this,  that  the  party  putting  his  sanity  in  question 
is  required  to  show  his  insanity  to  the  satisfaction  of 

28— King   V.   State,   9    Tex.   App.  8  S.  E.  440,  14  A.  S.  R.  879;   Ort- 

515.     "The  burden  of  proof  to  es-  wein    v.    Com.,    76    Pa.    State    Bep. 

tablish   Ids   insanity    devolves   upon  414,   18  Am.   Eep.  420;    Howard  v. 

the    defendant,   as    every   person   is  State,  172  Ala.  402,  55  So.  255,  34 

presiuned  to  l>e  of  sound  mind,  until  L.    E.    A.    (N.    S.)    990;    Hopps    v. 

the  contrary  is  shown  by  proof.     If  People,    'M    111.    385,    83    Am.    Dec. 

the   state   has   as  before   explained,  231;   State  v.  Felter,  32  Iowa  495; 

proved  the  facts  which  constitute  the  State    v.    Lawrence,    57    Me.    574; 

offense,  your  next  inquiry  will  be.  State  v.  Eedmen,  71  Mo.  170;  Loeff- 

has    the    defendant    established    by  ner  v.  State,  10  Ohio  St.  598. 
proof,  his  plea  of  insanity,   or  has  29 — Rather    v.    State,    9    S.    W. 

it  been  established  from  any  source?  (Tex.)    70.      Ogtetrie    v.    Stat*,    28 

If  the  law  excuses  him  from  crim-  Ala.   701.     For  a   full   citation,   see 

inality    you    should    acquit    him."  Eng.  and  Amer.  Enc,  page  7276. 
State    v.    Alexander,    30    S.    C.    74, 


100  Criminal  Law 

the  juiy.  By  many  authorities  the  defendant  is  re- 
quired to  show  his  insanity  to  the  satisfaction  of  the 
jury  by  a  preponderance  of  evidence.^" 

§  123.  As  to  the  pleading  by  the  defendant.  In  some 
jurisdictions  the  defense  of  insanity  is  by  special  plea, 
and  in  others  the  question  is  placed  before  a  jury  or  a 
commission  to  detemiine  the  sanity  of  the  defendant.  In 
others  still  different  modes  of  ascertaining  the  truth  as 
to  the  mental  condition  of  the  defendant  is  provided,  but 
in  the  absence  of  a  statute  setting  out  specifically  how 
the  plea  should  be  presented,  proof  of  the  insanity  could 
be  admitted  under  the  plea  of  **not  guilty."  ^^  The  plea 
of  not  guilty  includes  every  defense  unless  the  statute 
requires  a  different  manner  of  proceeding. 

§  124.  Of  the  amount  and  the  extent  of  proof,  etc.  The 

proof  necessary  to  overcome  the  presumption  of  sanity 
appears  to  be  uncertain.  The  weight  of  authority,  how- 
ever, seems  to  be  that  evidence  of  insanity  must  be  of 
such  cogency  as  to  convince  the  jury  of  that  fact  by  the 
preponderance  of  the  evidence.^^  Sanity  is  the  normal 
and  insanity  is  the  abnormal  condition  of  persons,  and 
for  this  reason  the  burden  rests  upon  him  who  set  up 
the  plea  of  insanity  as  a  defense  to  crime.  But  the  de- 
fendant is  not  required  to  go  beyond  a  reasonable  doubt. 
Where  the  question  of  malicious  intent  is  sought  to  be 
negatived,  malice  being  an  essential  element  of  the  crime, 
the  prosecution  is  required  to  prove  it  and  if,  upon  the 
whole  case,  there  be  a  reasonable  doubt  as  to  the  malice 
there  should  be  an  acquittal.'' 

;{0— IIopps  V.  People,  31  111.  385,  516;  Boiling  v.  State,  16  S.  W.  658. 

8.'1   Am.  Dec.  231;    State  v.  Felter,  32— State  v.  Rodmore,  71  Mo.  171, 

32  Iowa  495;  State  v.  Lawrence,  57  35  Am.  Kep.  402;   Guotig  v.  State, 

Mc.  574;   State  v.  Redmon,  71   Mo.  66  Ind.  94,  32  Am.  Rep.  99;  Graves 

170;   Loefrncr  v.  State,  10  Ohio  St.  v.  State,  16  Vroom  347,  46  Am.  R<?p. 

598.  778. 

31  — W(!l.h   V.'  Stale,   !)   'IV.x.    App.  ;!;t— H.-iUht  v.  St;it<',  2.1  Tex.  Ajtp. 

■IIK);     Kin;,'    V.    State,    9    Tex.    App.  62:!,  9  S.  VV.  (i!).    Uddtli.il  wlicn  tlic 


Idiots,  Etc.  101 

§  125.  Proof  of  malice  in  criminal  cases  must  be  be- 
yond reasonable  doubt.  In  criminal  cases  involving  an 
element  of  malice,  the  malice  must  be  proved  beyond  a 
reasonable  doubt.  In  many  instances  malice  will  be  pre- 
sumed from  the  nature  of  the  act,  but  the  law  requires 
that  these  facts  be  proved  by  the  state  before  the  pre- 
sumption can  be  indulged  against  the  defendant.  It  ap- 
pears to  be  in  perfect  accord  with  the  philosophy  of  the 
criminal  law  to  require  the  state  in  all  cases  partaking  of 
and  containing  the  element  of  malice,  where  insanity 
might  be  made  a  legal  excuse  for  the  crime,  to  require 
the  state  to  establish  the  sanity  of  the  defendant  before 
insisting  on  his  conviction.  We  believe  the  rule  to  be 
well  established  by  the  bulk  of  authority  that  the  burden 
is  on  the  defendant  to  establish  his  insanity,  but  the 
burden  should  be  upon  the  state  to  establish  beyond  a 
reasonable  doubt  the  sanity,  as  upon  the  whole  case. 
This  rule,  of  course,  is  inconsistent  with  that  maxim  of  the 
law  that  all  persons  are  presumed  to  be  sane.  There  are 
many  reasons  why  the  state  should  be  required  to  show 
the  defendant's  sanity  beyond  a  reasonable  doubt:  (1) 
Where  evidence  has  been  introduced  by  the  defendant  or 
issue  raised  showing  his  insanity,  the  presumption  of 
sanity  is  put  in  question,  and  the  burden  of  proof  shifts 
to  the  state.^     (2)   The  defendant  is  presumed  to  be 

defense  of   insanity   is  relied  upon,  17  Mich.  9,  97  Am.  Dec.  162;  Hopps 

the  burden  is  on  the   defendant  to  v.  People,  31  III.  385,  83  Am.  Dec. 

establish    such    defense    by    a    pre-  231;  Stokes  v.  People,  53  N.  Y.  164, 

pondcrance  of  the  evidence  and  to  13  Am.  Eep.  492;    Peake  v.  State, 

the  satisfaction  of  the  jury;   and  if  121   Ind.   433,   23   N.   E.    273;    Mc- 

the    homicide    is    proven,    and    it    is  Doughal     v.     State,     88     Ind.     24; 

not  shown,  by  a  preponderance  of  Bradey  v.  State,  31  Ind.  492;  People 

evidence,  that  the  defendant  at  the  v.  Cohn,  76  Cal.  386,  18  Pae.  410; 

time   of   the   homicide   was   insane,  People   v.   Elliott,   80   Cal.   296,   22 

you  will   disregard   the   defense   of  Pae.  207;  Subert  v.  State,  66  Miss, 

insanity.      Note    the    case    of    the  446,  6  So.  238;  linkers  v.  State,  87 

State  V.  Webb  which  follows  in  full.  Ala.    94,    6    So.    357;     Johnson    v. 

34— Montag    v.    People;    141    111.  State,  27  Tex.  App.  188;  Twicker  v. 

7.1,  30  N.  E.  337;  State  v.  Gabbutt,  State,  27   Tex.  App.  539;    State  v. 


102  Criminal  Law 

innocent  beyond  a  reasonable  doubt  until  the  contrary  is 
proved.  (3)  The  defendant,  by  reason  of  the  plea,  is  him- 
self incapable  of  assisting  his  counsel  in  preparing  and 
presenting  his  defense.  He  is  forced  to  rely  on  his 
counsel  and  friends  who  may  volunteer  in  his  behalf,  and 
the  consequence  is  he  is  placed  at  a  disadvantage  as  com- 
pared with  other  persons  charged  with  crime.  A  person 
charged  with  crime  who  makes  his  defense  upon  the 
ground  of  insanit}',  being  devoid  of  reason,  is  required 
to  make  a  very  intricate  and  complicated  defense,  in 
fact,  the  most  intricate  and  complicated  known  to  the 
criminal  law,  while  he,  from  the  nature  of  his  defense, 
upon  the  one  hand,  is  totally  incapable  of  presenting  his 
defense  on  account  of  his  insanity,  and,  upon  the  other 
hand,  skilled  and  eminent  criminal  lawyers  and  medical 
experts  and  specialists,  whose  sole  business  it  is  to  specu- 
late in  this  boundless  sea  of  doubt,  appear  against  him, 
and  the  law  requires  him  to  make  a  defense  with  the 
same  ingenuity  as  if  he  were  sane  and  fully  possessed  of 
all  his  faculties.  Where  is  the  malice,  unless  sanity  ex- 
ists? The  veiy  law  humanely  withholds  her  judgment 
if  at  the  time  of  trial  the  defendant  is  insane,  but  very 
inhumanely,  it  appears,  requires  him  to  show  himself 
insane  before  he  is  entitled  to  his  stay  of  judgment.  En- 
lightened judiciary  should  exercise  its  humane  joreroga- 
tive  and  extend  to  an  insane  person  the  same  rights 
accorded  to  his  more  fortunate  brothers,  by  establishing 
a  more  just  nile.^^ 

Marlor,    2    Al;i.    4.'),    -"(J    Am.     Dec.  (ui   tlic   St;ilo   to   show    sanity,   or   is 

398;  State  v.  Bartlett,  43  N.  II.  224,  it    on    llio    (lolViKlant    to    ],n,v.'    in 

80   Am.  Dec.   154.  sanity? 

35 — Hurt,  J.     The  appellant  was  2.    If  the  jury  liavo  a   reasonable 

convicted  of  murder  in  the  first  do-  doubt  of  the  sanity  of  the  dcfond- 

gree,  with  the  death  penalty  affixed  ant,  should  they  acquit  or  convict, 

as  the  punishment.     The  record  pro-  sanity  being  the  only  question  in  tlie 

Honts  tlirec   questions   for   our   solu-  case? 

tion:  3.     Can    the    proof   be   so   plenary 

1.     When    till'   jilra    of   insanity    is  on   one  side  as  to  justify  the  eourt 

interposed,    is    tlic    Imrilcn    of    prnof  brluw   in   llic   rejection  of   le^^itiniate 


Idiots,  Etc. 


103 


§  126.  When  insanity  has  been  shown  to  have  existed, 


and  proper  testimony  in  Ijehalf  of 
the   other   side? 

First  proposition:  When  the  plea 
of  insanity  is  interposed,  is  the 
burden  of  proof  on  the  State  to 
show  sanity,  or  is  it  on  the  defend- 
ant to  prove  insanity?  Brush  from 
tliis  question  the  dust  of  ancient 
days,  separate  it  from  old  com- 
panions, and  its  solution  is  perfectly 
simple.  Before  entering  upon  an 
analysis  of  this  subject,  permit  us 
to  allude  to  some  very  strange  and 
inconsistent  expressions  used  by  the 
learned  judges  in  treating  of  this 
question.  The  following  are  of  the 
number  alluded  to:  "As  insanity 
excuses  the  commission  of  crime,  on 
the  ground  that  the  actor  is  not  a 
responsible  being,  etc.  The  onus 
of  proving  the  defense  of  insanity, 
or,  in  the  case  of  lunacy,  of  show- 
ing that  the  offense  was  committed 
when  the  prisoner  was  in  a  state  of 
lunacy,  lies  upon  the  prisoner. ' ' 
*  *  *  What  mind  can  compre- 
hend the  possibility  of  a  crime  be- 
ing committed  by  an  insane  person? 
If  the  prisoner  be  insane,  there  is 
no  crime.  If  there  be  crime  there 
is  no  insanity  *  *  *  (1)  San- 
ity is  an  inherent,  intrinsic  element 
of  crime.  (2)  Insanity  is  not  an  in- 
herent and  intrinsic  element,  but  is 
intrinsic  and  independent  of  the 
crime.  This  last  proposition  con- 
tains a  monstrous  fallacy,  the  fruits 
of  which  are  ^^sible  in  so  many  of 
the  text  books,  and  which  are  fol- 
lowed out -in  many  of  the  enuncia- 
tions in  the  adjudicated  cases. 

If  sanity  is  an  inherent  element 
of  crime,  no  well  ordered  mind  can 
stop  short  of  the  conclusion  that  the 
State  must  carry  its  burden  and 
prove  it.     Feeling  the  force  of  this 


writers  have  treated  it  as  an  in- 
trinsic matter,  separate  and  distinct 
from  the  question  of  guilt,  and 
hence  those  strange  and  incompre- 
liensible  expressions  above  referred 
to.  Let  us  pay  our  respects  to  this 
last  proposition,  and  see  if  by  a 
bare  touch  it  will  not  crumble  to 
dust.  ' '  Sanity  is  extrinsic. ' '  There- 
fore the  prisoner  is  to  be  tried  for 
the  act,  and  the  question  of  intent 
or  malice  is  not  drawn  in  issue. 
This  for  the  simple  reason  that  an 
issue  formed  upon  the  question  of 
intent  or  malice  irresistibly  includes 
that  of  sanity,  for  there  can  be  no 
intent  or  malice  without  sanity. 
Therefore  it  follows  from  this  er- 
roneous position  that  the  jury,  in 
viewing  the  act  sought  to  be  pun- 
ished, must  strip  it  of  the  intent 
which  prompted  it,  and  look  alone 
to  the  act.  To  this  we  enter  our 
solemn  protest.  We  now  invite  at- 
tention to  what  we  believe  to  be 
the  true  position,  which  is  that  san- 
ity is  an  inherent,  intrinsic  and 
necessary  element  of  crime.  Is  this 
a  correct  proposition?  Is  it  not  a 
self-evident  position?  If  murder 
can  be  committed  without  intent 
or  malice,  then  the  proposition  is 
false;  if  not,  it  is  true. 

But  we  do  know,  if  it  be  possible 
to  know  anything,  that,  to  consti- 
tute murder,  the  act  of  killing  must 
be  attended  not  only  with  the  intent 
to  kill,  but  with  malice;  and  we  also 
know,  with  the  same  degree  of  cer- 
tainty, that  there  can  be  no  intent 
or  malice  without  sanity.  It  there- 
fore follows,  beyond  any  shadow  of 
doubt,  that  sanity  is  an  inherent, 
intrinsic,  and  necessary  ingredient 
of  crime.  We  now  return  to  the 
first   proposition   stated   at   the   be- 


104 


Criminal  Law 


it  is  presumed  to  continue.    The  burden  is  on  the  prosecu- 


gmning  of  this  opinion,  wliicli  is 
as  follows:  "When  the  plea  of 
insanity  is  interposed,  is  the  burden 
of  proof  on  the  State  to  show  san- 
ity, or  is  it  on  the  defendant  to 
prove  insanity?"  We  have  tlius 
stated  the  proposition  because  we 
find  it  so  staled  in  the  books,  but 
it  is  not  a  practical  one.  There  is 
no  such  plea  known  to  our  code  as 
applicable  to  trial  of  a  criminal 
cause.  We  have  four  pleas — tAvo 
special,  and  the  pleas  of  "guilty" 
and  "not  guilty" — and  this  plea  of 
"not  guilty"  is  a  denial  of  every 
material  allegation  in  the  indict- 
ment. Under  it,  evidence  to  estab- 
lish the  insjinity  of  the  defendant, 
and  every  fact  whatever  tending  to 
acquit  him,  may  be  introduced.  It 
follows  that  under  this  plea  the  de- 
fendant denies  every  constituent 
element  of  the  offense  charged,  and 
this  plea  of  "not  guilty"  is  the 
same  as  if  the  defendant  had  de- 
nied specifically  each  element  of  the 
crime  charged. 

This  leads  to  the  consideration  of 
the  charge  in  this  case,  which  is 
murder,  and  is  defined  thus :  ' '  Every 
person  of  a  sound  memory  and  dis- 
cretion who  shall  unlawfully  kill  any 
reasonable  creature  in  being,  within 
this  state,  with  malice  aforethought, 
cither  express  or  implied,  shall  be 
deemed  guilty  of  murder. ' ' 

From  this  definition  it  follows 
that,  to  constitute  this  offense,  the 
slayer  must  be  "  of  sound  memory 
and  discretion";  a  "reasonable 
creature ' '  must  be  slain,  and  the 
.slayer  must  be  actuated  by  "mal- 
ice. ' ' 

Wc  liavc  tJKMi,  first,  "noiiinl  iiiciii- 
cry"  in  the  sl.'iyer;  secoiul,  .-i  "rci 
Bonablo    creature"    alain;    and    tlie 


slayer      prompted      by      ' '  malice. ' ' 
These  constitute  murder,  and  noth- 
ing less  than  all  of  these  can  con- 
stitute murder.     By  what  principle 
of  logic,  reason  or  justice  can  either 
of     these     elements     be    eliminated 
from  the  offense?    From  this  it  fol- 
lows   that    an   indictment    charging 
this    offense    embraces    all    of    the 
above   elements  whether   specifically 
named  or  not;    and  though  the  in- 
dictment  omits   to   charge   that   the 
defendant    was    of     "sound    mem- 
ory," yet  charging  "malice,"  san- 
ity   is    necessarily    included.      The 
problem    which    equals    murder    is 
composed  of  three  members:   First, 
"sound  memory"  of  slayer;  second, 
"reasonable    creature"    slain;    and 
third,  "malice"  in  the  slayer.     Let 
us  see,  if  we  can  eliminate  from  this 
problem  one  of  these  members,  and 
leave  every  element  of  the  offense  in 
the    problem.       There    can    be    no 
' '  malice ' '     without     sanity.       We 
therefore  have  a  ' '  reasonable  crea- 
ture"   slain;     second    a    malicious 
slayer — murder.     »     *      *      If     the 
above   analysis   be   correct,   and   we 
think    it    is,    it    devolves    upon    the 
state   to   prove   every    inherent   ele- 
ment   of    the    offense;    and    as    we 
have    found    sanity    to   bo    such   an 
element,  it   rests   upon  the  state  to 
prove  sanity.     Still  holding  with  a 
(irm  grasp  the  proposition  that  san- 
ity  is   an   inherent    element    of    the 
offense,    and    as    there    is    no    siuli 
thing  in  law  as  separating  the  ele- 
ments  of   an   offense   so   jih   to   cast 
the  l)urden  of  a  part  upon  the  state, 
and  as   to   the   rest,   to   r(>(|uire   the 
(lofendant    to    take    tlie    burden    of 
proving  a   negative,   it   follows  that 
Ilu>  existence  of  each  element  is  an 
aflirmalivc  itniposit  inn,  ll\c  proof  of 


Idiots,  Etc. 


105 


which  rests  with  the  state.  The 
idea  that  the  burden  of  proof  shifts 
is  in  direct  conflict  with  the  phi- 
losophy of  criminal  jurisprudence, 
and  at  war  with  fundamental  prin- 
ciples; for  we  hold  that,  with  re- 
gard to  necessary  ingredient,  it 
never  shifts.  If  two  or  more  ele- 
ments constitute  an  offense,  which 
of  these  elements  must  be  proven 
l)y  the  state,  and  which  must  be 
proven  not  to  exist  by  the  defend- 
ant? If  elements,  do  they  not 
stand  ui)on  the  same  plane,  or  are 
there  some  which  prove  themselves? 
If  there  are,  they  are  not  elements. 
Are  we  to  require  the  defendant  to 
prove  the  nonexistence  of  that  ele- 
ment— sanity — upon  which  intent 
and  malice  depend,  and  yet  hold 
the  state  to  prove  intent  and  mal- 
ice? To  us  it  is  impossible  to  har- 
monize logically  these  positions. 
We  are  now  led  to  meet  the  most 
plausible,  difficult,  and  potent  po- 
sition which  can  be  assumed  upon 
the  other  side.  And  we  here  con- 
cede that  it  is  supported  by  the 
weight  of  authority;  but  we  do  not 
think  it  is  founded  in  principle, 
and  if  not  founded  in  principle,  to 
follow  would  be  dangerous.  It  is 
this:  The  fact  of  killing  being  ad- 
mitted and  that  beyond  doubt  the 
prisoner  did  the  killing,  and  sanity 
being  the  normal  condition  of  all 
persons,  the  law  presumes  the  pris- 
oner sane  until  he  shows  to  the  con- 
trary and  therefore  the  burden  of 
proving  insanity  rests  with  the 
prisoner.  It  will  be  seen  at  once 
that  the  struggle  is  with  this  pre- 
sumption of  sanity.  The  name  of 
this  witness  is  presumption.  He  is 
a  venerable  gentleman.  He  was 
contemporary    with    the    first    form 


principles  of  the  enlightened  juris- 
prudence. For  truth  and  integrity 
he  has  never  been  excelled.  His 
means  of  knowledge  is  unsurpassed, 
having  for  a  foundation  the  laws  of 
nature,  and  the  truth  of  his  evi- 
dence is  corroborated  by  the  expe- 
riences of  man  through  all  ages. 
The  effect  of  his  evidence  is  the 
production  of  not  only  a  mere  prima 
facie  case,  but  full  and  complete 
conviction  when  not  opposed.  Up- 
on his  evidence  alone,  when  not  con- 
tradicted, sanity  being  the  only  is- 
sue, man  has  been  made  to  expiate 
the  violated  law  with  his  life 
when  he  speaks  of  the  sanity  of  his 
prisoner,  his  evidence  meets  with 
an  approving  response  in  the  mind 
of  every  intelligent  and  honest 
juror  for  their  experience  corrobo- 
rates his  testimony.  But  he  is  not 
infallible.  *  *  *  He  never  tes- 
tifies to  the  sanity  of  any  particular 
individual. 

His  is  never  positive,  but  always 
presumptive  evidence.  Sanity,  the 
normal  condition  of  man,  he  pre- 
sumes that  to  be  the  condition  of 
the  prisoner.  With  the  parents  or 
the  relatives  of  the  prisoner  he  is 
not  acquainted.  He  is  not  aware 
of  the  fact  that  some  of  the  pris- 
oner 's  blood  relatives  are  now  in- 
mates of  an  asylum  for  the  insane. 
Though  his  locks  are  bleached  by 
the  winters  of  ages;  though  he  has 
never  been  charged  with  prejudice, 
and  though  his  evidence  is  sup- 
ported by  the  laws  of  nature  and 
corroborated  by  the  experience  of 
man,  yet  he  is  somewhat  arbi- 
trary. He  places  the  prisoner  in 
the  normal  condition  of  man,  which 
is  sanity,  and  demands  of  him  the 
same   conduct   whether   sane   or   in- 


106 


Ceimiij^al,  Law 


tion  to  rebut  this  presumption.^^    As  is  elsewhere  stated, 


sane.  He  never  heard  of  insanity, 
because  he  speaks  alone  from  the 
laws  of  nature,  and  insanity  being 
an  exception  to  the  natural  rule, 
they  are  unacquainted.  With  pris- 
oner's language,  conduct  or  mis- 
fortune he  has  nothing  to  do,  and 
of  them  he  is  entirely  ignorant. 
Yet  he  holds  him  with  an  iron  grasp 
to  the  laws  of  nature  and  the  ex- 
perience of  man.  Is  he  omnipotent? 
How  many  witnesses  are  necessary 
to  measure  arms  with  this  Titan? 
Does  he  partake  of  the  kingly  char- 
acter, and  can  he  "do  no  wrong ' ' ? 
Upon  the  testimony  of  one  ■^^^tness 
alone,  the  prisoner  may  be  legally 
con\'icted  and  executed.  Can  this 
evidence  accomplish  more?  In  no 
case  can  he  accomplish  more  than 
can  be  effected  by  the  evidence  of 
one  witness.  We  do  not  mean  the 
e\ndence  of  any  witness.  Can  the 
evidence  of  one  witness  ever  be  an 
over-match  for  him? 

In  some  cases  it  legally  and 
justly  can;  in  others  the  testimony 
will  not  suffice,  this  always  depend- 
ing upon  the  character  of  the  wit- 
nesses, their  means  of  knowledge, 
and    the    facts    sworn   to.     *     *     * 

From  the  above  we  deduce  these 
rules:  1.  The  state  must  prove 
every  necessary  ingredient  of  the  of- 
fense, and  so  far  as  they  (the  in- 
gredients) are  concerned,  the  Inirden 
of  proof  never  shifts.  2.  When, 
distinct,  extrinsic  matter  ia  relied 
on  by  the  defendant,  the  burden  is 
on  him  to  prove  it  to  the  satisfac- 
tion of  the  .iury.  We  now  propose 
to  return  to  that  plausil)lo  position 
of  the  olhor  side  "the  evidence 
showing  tlie  act  to  have  l>con  done 
hy  the  dof(Midnnt,  and  sanity  1)0- 
i?ig    pri'siiriird    by   tho   l;iw,   tlio   Imr- 


den  shifts  to  the  defendant. ' ' 
Those  who  occupy  the  other  side 
plant  themselves  upon  this  propo- 
sition, and  ask  with  plausibility, 
and  a  great  show  of  victory,  "will 
not  the  prisoner  be  convicted  if 
he  fails  to  introduce  evidence  of 
his  insanity?"  We  admit  that  he 
will,  and  justly  *  *  *  Since 
sanity  is  an  essential,  inherent  ele- 
ment of  murder,  and  since  the  state 
must  prove  all  the  necessary  in- 
gredients of  the  offense  charged, 
we  cannot  escape  the  conclusion 
that  the  state  must  prove  sanity; 
and  as  we  have  found  that  the  bur- 
den of  proof  does  not  shift  in  re- 
gard to  the  necessary  ingredients 
of  the  offense,  and  as  sanity  is  such 
an  ingredient,  it  also  follow-s  that 
the  burden  of  the  proof  is  upon 
the  state  to  show  sanity,  and  not 
upon  the  defendant  to  prove  in- 
sanity —  negative.  *  *  *  gy 
careful  survey  of  the  al)ove  posi- 
tions it  will  be  perceived  that  the 
burden  of  proof  is  quite  a  differ- 
ent thing  from  the  means  or  instru- 
ments of  proof.  The  court  below 
charged  the  jury  that  the  burden 
of  the  insanity  was  upon  the  de- 
fendant; this  we  think  was  error. 
17  Mich.  Ill,  16  N.  Y.  58,  2  Met. 
240,  1  Gray  61,  7  Met.  500;  .SI 
111.  385,  14  Amcr.  L.  Reg.  23,  43 
NT.  H.  224,  19  Ind.  170,  U.  S.  v. 
McClane,  7  L.  Rep.  439,  the  opin- 
ions in  the  case  of  King  v.  State, 
94  App.  45-54. 

36 — Montgomery  v.  Com.,  18  S. 
W.  475:  "A  person  may  be  in- 
sane, but  that  estal)lislimont  of  fact 
does  not  carry  witli  it  the  presump- 
tion tliat  ho  was  not  criminally  re- 
sponsible. Evidence  of  insanity, 
bolli    before    ;in(l    ."iflrr    the    crime. 


Idiots,  Etc.  107 

crime  comniittGd  during  the  pendency  of  a  lucid  interval 
is  subject  to  prosecution;  the  burden  rests  upon  the  prose- 
cution to  prove  beyond  a  reasonable  doubt  that  the  crime 
was  committed  during  the  pendency  of  the  lucid  interval. 
This  presumption  that  insanity  continues  is  a  question 
purely  of  facts  and  not  a  presumption  of  law  and  may  be 
overcome  by  proof  to  the  contrar>^^''^ 

§  127.  View  of  author,  the  dissenting  opinions  of 
judges.  In  view  of  the  conflicting  authorities  upon  the 
question  of  ''reasonable  doubt,"  "satisfactory  proof" 
and  "clearly  satisfactory  proof"  and  "preponderance 
of  evidence ' '  and  other  such  terms  used  by  courts  in  dis- 
cussing the  burden  of  proof  in  insanity  cases,  it  appears 
to  us  that  the  reasons  of  the  dissenting  judges  and  that 
line  of  decisions  holding  that  the  burden  is  upon  the 
state  to  prove  the  sanity  of  the  defendant  should  be  the 
future  nile,  and  that  all  doubts  should  be  indulged  in 
the  behalf  of  the  defendant,  especially  in  crimes,  the 
moving  part  of  which  is  malice.^^ 

may  be   given   to   the  jury   for   tlie  alleging    sanity.       11    vol.    Am.    & 

purpose  of  enabling  them  to  deter-  Eng.  Encla.,  page  160.     Chronic  in- 

mine  whether  or  not  the  same  con-  sanity  is  presumed  to  continue,  Id. 

dition  of  mind  existed  at  the  time  State  v.  Eeddick,  7  Kans.  143.    The 

the  act  Avas  committed;  but  no  legal  presumption  that  insanity  continues 

presumption  arises   from  the   proof  is   a   presumption  of  fact,   and  not 

previous  or  after  insanity,  that  the  one    of    law.      Am.    &    Eng.    Encla. 

person  was   insane,   at   the  time  he  Law,    vol.    11,    page    161;    22    Tex. 

committed    the    criminal    act.      But  App.  379;  Physio-Medical  Coll.  Ind. 

the  jury  may  draw  such  inference  of  v.  Wilkinson,  108  Ind.  314,  9  N.  E. 

fact    from    these    conditions    they  167. 

may  deem  proper."  See  Gruff  v.  38 — Cunningham  v.  State,  56 
State,  117  Ind.  277.  Miss.  269;  Id.  31  Am.  Eep.  360; 
37— People  v.  Lane  (Cal.),  36  Boswell  v.  State,  63  Ala.  307;  Id. 
Pac.  16,  101  Cal.  513;  Hornish  v.  35  Am.  Eep.  20;  Guetig  v.  State, 
People,  142  111.  620,  32  N.  E.  677;  66  Ind.  94,  32  Am.  Eep.  99;  0 'Con- 
Jamison  V.  People,  145  111.  357,  34  nor  v.  People,  87  N.  Y.  377,  41 
N.  E.  486.  When  a  person  has  Am.  Rep.  379;  State  v.  Redimier, 
been  proven  insane,  the  presump-  71  Mo.  173,  36  Am.  Eep.  462; 
tion  is  that  the  insanity  continues  Howe  v.  State,  11  Neb.  537,  38 
and  the  burden  shifts  to  the  party  Am.  Eep.  375;   Graves  v.  State,  16 


108  Criminal.  Law 

§  128.  Non-expert  witnesses  are  competent  on  question 
of  sanity.  Non-expert  witnesses,  w^hen  they  have  been 
so  circiunstanced  as  to  observe  the  actions  and  the  con- 
versations of  the  defendant,  are  proper  witnesses  as  to 
his  sanity  when  the  same  is  brought  in  question  and 
urged  as  a  defense  to  crime.  Any  person  acquainted  with 
the  defendant,  his  habits,  his  idiosyncracies,  wounds,  in- 
juries, sickness  or  any  other  thing  connected  with  his 
conduct  and  habits,  are  competent  witnesses,  whether 
they  are  experts  or  not.  Non-experts  are  proper  wit- 
nesses to  prove  any  facts  in  their  knowledge  touching 
the  sanity  of  the  defendant.  They  will  not  be  permitted 
to  give  the  conclusions  of  their  opinions  of  the  defend- 
ant's mental  condition,  except  such  conclusions  as  are 
drawn  from  the  facts  they  themselves  testify  to  touch- 
ing the  habits,  actions  and  conversations,  etc.,  of  the  de- 
fendant.^^ Properly  speaking,  however,  all  witnesses 
testifying  as  to  their  conclusions  or  their  opinion  of  the 

Vroom.  347,  46  Am.  Eep.  778;  Coyle  Am.    Dec.    481;    State    v.    Hockett, 

V.  Com.,  100  Pa.   St.   573,  45   Am.  70    Iowa   442,   30   Nev.    742;    State 

Rep.  397;    Ortwine  v.  Com.,  76  Pa.  v.   Pennyman,   68   Iowa   216,   26   N. 

St.  414,  18  Am.  Rep.  420;  State  v.  W.  82;  Soge  v.  State,  91  Ind.  141; 

Anderson,    43    Conn.    514,    21    Am.  People    v.    Warren,    59    Cal.    392; 

Rep.  669.  Wood  y.  State,  58  Miss.  741 ;  Yanke 

39— As  to  the  defendant's  men-  v.  State,  51  Wis.  — ,  8  Nev.  276; 
tal  condition,  with  reference  at  the  Webb  v.  State,  5  Tex.  App.  596; 
time,  to  the  crime  charged,  is  pe-  State  v.  Archer,  54  N.  H.  465; 
ciiliarly  a  question  of  fact  for  the  opinion  of  neighbor  and  acqua in- 
jury to  be  decided  from  all  the  evi-  tances,  etc.,  supported  by  the  above, 
dence  of  the  case,  before  the  act.  State  v.  Leachman,  3  S.  Dak.  171, 
at  the  time,  and  after.  49  N.  W.  3;  Patterson  v.  State,  86 

In    Mississippi,    New    Hampshire  Ga.  70,  12  S.  E.  174;   State  v.  Le- 

and  Massachusetts,  the  courts  have  rois,    20    Nev.    333,    22    Pac.    241; 

held   that   nonprofessional  witnesses  Burh  v.  State,  40  S.  W.  1004;  Puher 

are  not  proper  witnesses  in  insanity  v.   State,   32   Tex.   App.   557;    State 

cases,    even    if    they    do    know    the  v.  Green,  40  S.  C.  328,  18  S.  E.  933; 

habits,   etc.      These   cases    must    be  TalTe  v.  State,  90  Oa.  459,  16  S.  E. 

taken    with    qualifications.      Massio  204;    McCalmon    v.    State,    96    Ala. 

v.   Com.,  24  S.   W.   611;    People  v.  98,    11    So.    408;    Hodge    v.    State, 

Borgetto,    99    Mich.    336,    58    Nev.  97  Ala.  — ,  38  A.  S.  R.  145,  12  So. 

328;  Upstate  V.  People,  109  III.  175;  164;    State   v.    Robertson,    117    Mo. 

Cnark  V.  State,  12  Ohio  St.  483,  40  049,  23  S.  W.  1066;  State  v.  Calla, 


Idiots,  Etc.  109 

defendant's  mental  condition  are  to  be  regarded  as  ex- 
perts, to  a  more  or  less  extent,  because  they  give  merely 
their  opinions  and  conclusions,  based  upon  the  knowledge 
they  have  of  men  in  their  general,  ordinary  and  usual 
offices. 

§  129.  Expert  witnesses,  competent  on  hypothetical 
questions.  Expert  witnesses  may  be  interrogated  touch- 
ing their  knowledge  of  the  defendant's  mental  condition, 
based  upon  hypothetical  questions.  Such  questions  must, 
however,  be  based  upon  facts  proven  in  the  trial.  They 
may  be  asked  if  persons  similarly  afflicted  are  sane  or  in- 
sane. They  may  be  asked  upon  the  whole  evidence,  proved 
in  the  trial  (if  the  witness  has  heard  the  whole  of  the  evi- 
dence), whether,  in  his  opinion,  the  defendant  is  sane 
or  insane.  The  witness  must  have  heard  the  entire  testi- 
mony in  order  that  he  be  competent.*''  As  sustained  by 
the  great  weight  of  authority,  an  expert  witness  will 
not  be  permitted  to  give  his  opinion  of  the  sanity  or  in- 
sanity of  the  defendant  where  the  question  of  derange- 
ment of  the  mind  is  controverted  in  criminal  cases,  be- 
cause this  would  be  submitting  to  the  witness,  to  be  de- 
termined by  him,  that  which  is  particularly  the  province 
of  the  jury  upon  the  whole  evidence,  to  say.*^  There  are 
authorities,  however,  which  hold  that  the  doctrine  an- 
nounced above  is  not  the  correct  rule,  but  insist  that 
the  witness  may  be  properly  interrogated  touching,  and 
his  opinion  may  be  given  concerning,  the  defendant's 
mind,  founded  upon  the  evidence  of  the  whole  case.*^ 

8  Wash.  512,  36  Pac.  474;  State  Dec.  154;  State  v.  Jones,  50  N.  H. 
V.  Nacton,  26  S.  W.  551;  Helmes  v.  369,  9  Am.  Rep.  242;  State  v.  John- 
State,  100  Ala.  80,  14  So.  864;  son,  40  Conn.  136;  People  v.  Gab- 
Conde  v.  State,  24  S.  W.  415.  Non-  butt,  17  Mich.  1;  State  v.  Craw- 
expert  evidence.  ford,  11  Kans.  32;   State  v.  Feller, 

40— Webb  v.  State,  9  Tex.  App.  32   Iowa   49;    State   v.   Klinger,  43 

508;   Burt  v.  State,  40  S.  W.  1000.  Mo.  127. 

41 — 3    Greenf.    sec.    5;    note    to  42 — Webb  v.  State,  9  Tex.  App. 

Com.  V.  Eodgers,  9  Met.  500;  State  490. 
V.  Bartlett,  43  N.   H.  224,   80   Am. 


110  Criminal  Law 

Hypothetical  questions  may  be  put  in  any  form  desired, 
having  a  care  to  keep  within  tlie  facts  proved  or  within 
the  testimony  of  any  particular  witness  touching  the 
point  in  issue.  Questions,  based  upon  a  statement  of 
facts,  not  proven  in  the  particular  case,  can  in  no  event 
be  allowed.  Questions,  however,  may  be  based  upon  a 
part  of  the  evidence,  or  upon  the  evidence  of  one  wit- 
ness, or  upon  the  evidence  of  the  prosecution  alone. 
When  the  state  is  j^ermitted  to  put  hypothetical  ques- 
tions based  upon  the  state 's  case,  with  the  understanding 
that  the  defendant  be  pennitted  to  cross-examine,  as  to 
the  whole  case.*^ 

§  130.  Where  the  defendant  becomes  insane  after  con- 
viction. If  the  defendant  becomes  insane  after  convic- 
tion, and  before  sentence,  the  sentence  must  be  sus- 
pended and  the  execution  deferred  until  he  is  cured.  If 
he  becomes  insane  after  the  commission  of  the  olfense 
and  before  trial,  the  trial  shall  be  postponed  until  he  is 
of  right  mind.  The  court  generally  directs  a  commission 
to  inquire  into  his  sanity.  If  the  commission  finds  him 
to  be  insane  the  trial  is  then  postjjoned.    The  statutes  of 

43 — Where  a  physician  was  asked  win  v.  State,  96  Ind.  550:  "In 
hypothetically,  what  was  the  cause  the  examination  of  an  expert  wit- 
of  insanity,  based  upon  the  evi-  ness,  counsel  may  embrace,  in  a  hy- 
dence  offered,  and  it  being  objected  pothetieal  question,  such  facts  as 
to  on  the  ground  that  the  question  he  may  deem  estal>lished  by  the  evi- 
was  not  based  on  the  entire  evi-  dence,  and  if  opposing  counsel  does 
dence,  and  the  facts  of  the  wliole  not  think  all  the  facts  established 
case,  it  was  held,  that  the  physician  are  included  in  such  question,  he 
being  cross-examined  as  to  the  hypo-  may  include  them  in  questions  on 
thetical  questions  and  also  to  all  cross  examination."  Eodgers  Ex- 
evidence  claimed  to  be  omitted  from  j)ert  Test.  39;  Stevens  v.  Fields, 
them,  that  it  was  j)ropcr  to  .'iliow  •)  N.  Y.  640,  is  as  follows:  "If 
the  evidence.  Zaldoske  v.  Stale  t lie  testimony  of  an  expert  is  proper, 
(Wis.),  02  N.  W.  778,  82  Wis.  .')80.  counsel  may  ask  hypothetical  ques- 
Tlie  court  in  Burt,  40  S.  W.  1000,  tions,  assuming  the  existence  of  any 
quotes  with  apjtrova!  tlic  lanj^uagc  state  of  facts,  which  the  evidence 
of   tlic   court    ill    tlic   cavi'    of   (Idinl  fairly  tnids  to  Justify. 


Idiots,  Etc. 


Ill 


the  several  states  make  ample  provisions  concerning  the 
procedure  in  this  character  of  cases. 

INFANTS 

§  131.  Infants  under  seven  years  of  age,  etc.  Infants 
are  not  responsible  for  criminal  conduct  until  they  reach 
the  age  of  accountability.  At  the  common  law  children 
under  the  age  of  seven  years  are  absolutely  incapable  of 
conceiving  a  criminal  intent.**  This  is  an  irrebuttable 
presumption  of  law.  The  age  of  discretion  was  four- 
teen years.  Between  the  ages  of  seven  and  fourteen  a 
mischievous  discretion  can  be  shown,  and  a  wicked  intel- 
ligence may  appear.  A  crime  committed  between  the 
ages  of  seven  and  fourteen  years  may  or  may  not  be  sub- 
ject to  the  prosecution  of  the  state,  as  the  infant  may  be 
shown  to  have  sufficient  reason  and  to  know  right  from 
wrong,  and  to  know  the  particular  act  is  wroiig.*^    The 

convicted  of  obtaining  goods  un- 
der false  and  fraudulent  pretenses. 
People  V.  Kendall,  37  Amr.  Dec.  240, 
25  Wend.  399;  Martin  v.  State 
(Ala.),  8  So.  858,  80  Ala.  602.  An 
infant  may  be  convicted  on  his 
own  confession,  if  the  doli  eapax 
is  otherwise  shown.  Jones  v.  Cone, 
86  Va.  740,  10  S.  E.  100;  People 
V.  Powell,  87  Cal.  348;  Id.  25  Pac. 
481.  For  proof  of  infant 's  age, 
see  Duncan  v.  State  (Tex.),  15  S. 
W.  407.  The  law  presumes  that 
infants  between  the  ages  of  seven 
and  fourteen  are  incapable  of  com- 
mitting a  crime,  and  it  is  incumbent 
on  the  state  to  prove  that  the  de- 
fendant had  sufficient  capacity  to 
know  that  he  was  committing  a 
crime.  And  if  you,  the  jury,  find 
that  a  crime  was  committed  and 
that  the  defendant  was  under  four- 
teen years  of  age,  at  the  time  of 
its  alleged  commission,  and  if  the 
state  fails  to  show  a  mischievous 
discretion,   you   should   acquit    (held 


44 — State  v.  Yeargan,  117  N.  C. 
706,  23  S.  E.  153,  36  L.  R.  A.  196 
and  note;  Angelo  v.  People,  96  111. 
209,  36  Am.  Eep.  132;  Godfrey  v. 
State,  31  Ala.  823,  70  Am.  Dec.  494, 
and  note. 

45— Godfrey  v.  State,  31  Ala. 
323,  70  Am.  Dec.  494.  Crime  com- 
mitted between  the  ages  of  seven 
and  fourteen  years  creates  a  prima 
facie  case  of  incapacity,  but  this 
prima  facie  case  may  be  rebutted, 
by  showing  that  discretion  and 
judgment,  deemed  by  the  court  to 
be  sufficient  to  form  a  criminal  in- 
tent. 

See  the  folloAving  cases  for  a 
discussion  of  the  inability  of  per- 
sons under  fourteen  years  of  age, 
conceiving  a  criminal  intent.  Law 
v.  Com.,  40  Amr.  Eep.  750,  75  Va. 
885;  Hill  v.  State,  36  Amr.  Rep. 
120,  63  Ga.  678;  Williams  v.  State, 
45  Amr.  Dec.  536,  14  Ohio  222; 
State  V.  Aaron,  7  Amr.  Dec.  592, 
1    South   231.      An    infant   may   be 


L12  Ckimixal  Law 

presumption  of  incapacity  continues  up  to  and  includes 
the  full  period  of  fourteen  years,  and  the  burden  of  proof 
is  upon  the  state  to  show  the  dolum  capax  of  the  de- 
fendant. 

§  132.  Person  under  the  age  of  fourteen  years.  A  boy 
under  the  age  of  fourteen  years  is  held  to  be  incapable 
of  committing  rape.  This  is  also  an  irrebuttable  pre- 
sumption, but  a  boy  under  the  age  of  fourteen  years  can 
be  convicted  of  an  assault  to  commit  rape.*^  He  can  also 
be  convicted  as  a  principal  in  the  second  degree  in  any 
other  felony.*'  This  presumption,  that  a  boy  cannot  com- 
mit rape,  is  based  upon  the  law  of  nature  that  the  phys- 
ical ability  to  commit  the  crime  is  wanting;  not  that 
there  is  a  lack  of  mental  understanding.  In  certain 
crimes  (made  so  by  statutory  provisions)  the  age  of  re- 
sponsibility is  placed  as  high  as  seventeen  years.  The 
prosecutrix  in  a  charge  of  rape  is  considered  incapable 
of  giving  consent  to  an  act  of  carnal  intercourse  when 
she  is  under  the  age  of  twelve  years,  at  common  law. 
Many  of  the  state,  however,  place  the  age  of  consent  at  a 
greater  age.  This  presumption  is  based  upon  the  physical 
development  of  females.*^  The  several  states  have  statutes 

to    be    correct    charge).      State    v  opincnt    from    which    capacity    may 

Fowler,   52   Iowa  — ,  2  N.   W.  983.  l)e  deduced.     10   So.   722. 

46 — In  the  case  of  McKinney  v.  In  Louisiana  a  boy  under  four- 
State,  it  was  held  that  under  the  teen  years  of  age  may  be  convicted 
age  of  fourteen  at  the  time  of  an  of  rape  if  it  is  shown  that  ho  has 
alleged  assault  to  rape,  evidence  is  in  fact  readied  the  age  of  puberty. 
inadmissible  in  point  of  fact  to  State  v.  Nickerson,  45  La.  Ann. 
show  that  the  defendant  could  com-  1172,  1-1  So.  134. 
mit  the  offense;  and  whether  this  47—1  East  P.  C.  446;  2  Bishop 
should   be   adopted  in  the   State   of  1134. 

J'Morida  or  not,  a  conviction  for  such  48 — 4  Bla.   21().     In  the  State  of 

an     attempt    cannot    bo    sustained,  Ohio  it  has  been  hold  that  the  pre 

where   there   is  positive  and   uncon  suinplion     of     incapacity     may     be 

tradicted  evidence,  that  the  defend-  overcome    by    proof,    showing    that 

ant   was  a   little   under  the  age   of  a   Itoy   under  fourteen  years  of  age 

fourteen  years,  and  where  there  was  is  actually  arrived  at  puberty.    Wil- 

no  evidence  of  his  capacity  to  com-  liams  v.  State,  14  Ohio  222,  45  Am. 

mit   rape   or  of  his  physical   dcvel-  Dec.   536. 


iDiors,  Etc.  113 

in  many  instances,  reducing  the  penalty  in  cases  where 
the  defendant's  age  becomes  below  a  certain  figure.  In 
Texas  where  one  charged  with  murder  is  under  the  age 
of  seventeen  years  he  cannot  be  given  the  highest  pen- 
alty, but  the  burden  is  upon  him  to  show  that  he  is  below 
the  exempted  age. 

§  133.  Rule  in  the  southern  states.  In  many  of  the 
southern  states  the  presumption  that  females  under  the 
age  of  twelve  years  are  incapable  of  giving  consent  to  an 
act  of  carnal  intercourse  is  rebuttable.  In  the  state  of 
Texas  the  age  fifteen  years  is  the  period  at  which  females 
are  by  statute  enabled  to  give  consent  to  an  act  of  carnal 
intercourse.  The  burden  of  proof  is  upon  the  prosecu- 
tion, however,  to  show  incapacity  to  give  consent.  The 
clearest  and  most  positive  proof  in  which  infants  under 
the  age  of  fourteen  years  are  charged  is  required  of  the 
prosecution.*^ 

MAERIED  WOMEN 

§  134.  Presumptions  as  to  married  women,  etc.  Mar- 
ried women  are  presumed,  when  they  commit  a  crime 
in  the  presence  of  their  husbands,  to  be  under  coercion. 
But  where  the  wife  does  the  act  independently  she  will 
be  held  to  act  upon  her  own  free  will,  free  from  her  hus- 
band's coercion.^" 


49 — Angelo  v.  People;  96  111.  209;  pable  of  forming  a  criminal  intent. 

Id.  36  Amr.  Rep.  132.     The  prosecu-  3   Greenf.   sec.  4,  Eedfld.   Ed.   P.   6. 

tioD  is  required  to  prove  two  things :  50 — The  court  in  the  case  of  the 

1.     That     the     boy     committed     the  U.  S.  v.  De  Qui"?eldt,  2  Cr.  L.  Mag. 

crime.      2.    That    at    the    time    of  p.    213-214:       I    have    had    serious 

committing  the  crime  he  had  knowl-  doubts  whether  this  common  law  fic- 


that    he    was    doing    wrong.  tion   has    a    place    in    the    criminal 

From  seven  years  to  fourteen,   the  jurisprudence  of  the  United  States, 

burden  of  proof  is  on  the  prosecu-  Our    offenses    are    purely    statutory, 

tion  to   show  that  a  wicked  discre-  and  we  do  not  look  to  the  common 

tion   exists.      The   prisoner   between  law  or  to  the  law  of  the  states,  to 

these  ages  is  presumed  to  be   inca-  furnish  us  any  element  or  character- 
C.  L.— 8 


114 


Criminal  Law 


§  135.  The  presumption  as  to  married  women  does  not 
extend  to  felony.  At  tlie  common  law  married  women 
when  committing  any  criminal  act,  that  is,  any  felony 
in  the  presence  of  their  husbands  were  presumed  to  be 
under  their  compulsion,  but  murder,  treason  and  rob- 
ber}^ was  an  exception  to  the  rule.^^  The  burden  of  proof 
is  on  the  prosecution  to  show  that  the  wife  acted  of  her 
own  free  will,  independently  of  her  husband.  This  can 
be  overcome  by  proof  that  the  husband  could  not  coerce 
the  wife  upon  account  of  his  physical  condition,  or  that 
he  was  in  such  proximity  as  to  be  incapable  of  coercing 


istic  of  an  offense.  I  am  inclined 
to  believe  it  is  the  logical  results 
of  the  doctrine,  that  our  crimes  are 
statutory  and  that  we  have  no  com- 
mon law  crimes,  except  so  far  as 
the  statutes  have  adopted  it,  in  mat- 
ters of  evidence  and  practice  that 
no  exemption  exists,  unless  Congress 
defines  and  declares  it.  The  pre- 
sumption of  coercion  may  be  a  rule 
of  evidence,  but  the  exemption  of 
the  wife  on  account  of  it  is  a  rule 
of  law  that  Congress  has  not  de- 
clared. I  have  not  found  this  point 
discussed,  nor  any  case  recognizing 
this  doctrine  of  marital  coercion, 
in  the  Federal  courts.  There  arc 
cases  recognizing  insanity  and  per- 
haj)s  infancy,  as  a  defense,  but  gen- 
erally the  cases  are  those  of  com- 
mon law  crimes  on  the  high  seas, 
or  elsewhere,  of  which  these  courts 
have  jurisdiction,  and  which  are 
defined  not  by  statute,  but  by  the 
adoption  of  Congress  as  a  defen.se 
in  its  fullest  scope.  Insanity  was 
recognized  as  a  defense  to  statutory 
ofTenscs  of  the  United  .States.  See 
r,  Fed.  277;  U.  S.  v.  Terry,  42  Fed. 
317. 

.'51— People  v.  Wright,  .'{8  Mich. 
744,  31  Amr.  Rep.  .3.'}1;  People  v. 
Wrighf,  .Tl   Amr.   IJcp.  ?.H\,  .''.8  Mich 


7-i-l :  "A  married  woman 's  respon- 
sibility for  crime,  is  variously  stated 
by  the  text  writers.  From  a  close  ex- 
amination and  comparison  of  the 
cases  and  text  writers,  the  general 
rule  admitted  by  all,  seems  to  be  that 
if  a  wife  commits  a  felony,  with 
the  exception  of  murder  and  treason 
and  perhaps  some  other  heinous  fel- 
onies, in  the  presence  of  her  hus- 
band, it  is  presumed  in  the  absence 
of  evidence  to  the  contrary,  that 
she  did  it  under  constraint  from 
him  and  therefore  excused.  But 
authorities  are  equally  agreed,  and 
that  this  presumption  is  only  prima 
facia  and  rebuttable.  But  this  is 
only  the  presumption  of  law,  so  that, 
if  upon  the  evidence,  it  clearly  ap- 
pears that  the  wife  was  not  drawn 
to  the  offense  by  the  husband,  but 
that  she  was  the  principal  inciter 
of  it,  she  is  guilty.  This  is  the  doc- 
trine in  all  the  states.  There  is  lit- 
tle in  the  present  organization  of 
society  upon  which  tlie  ])rinia  facia 
presumption  itself  c:ni  st:ind,  and 
certainly  nothing  calling  for  an  ex- 
tension of  the  ])resnni])tion.  The 
sl:il  iildiy  rule  is  more  in  jiccord.'ince 
with  tlie  spirit  of  tiie  ag<'  in  wliicli 
we  live." 


Idiots,  Etc. 


115 


her  actions;  such  as  the  husband  is  a  confirmed  invalid 
or  a  confirmed  cripple.^^ 

§136.  Common  law  rule  modified  by  statute.  The 
common  law  rule  has  been  modified  in  many  jurisdictions 
and  pc^i-haps  others  have  abolished  it  entirely.  The  old 
English  law  considered  the  wife  subject  to  the  control 
and  arbitraiy  will  of  the  husband;  practically  taking 
from  her  her  individual  liberty  and  freedom  of  action. 
In  return  for  this  obedience  the  husband  was  supposed 
to  protect  her  from  the  consequences  of  her  criminal  acts 
committed  in  his  presence.^^  jj-^  ^j^g  absence  of  statute 
changing  the  common  law,  it  seems  that  a  wife  would  be 
excused  for  a  crime  committed  in  the  presence  of  her 
husband.  At  least  the  rule  of  the  common  law  in  this 
respect  is  supposed  to  be  the  rule  of  action  in  this  coun- 
try. 


52 — The  presumption  is  conclu- 
sive when  the  husband  and  wife  act 
together.  1  Greenf.  see.  28;  4  Bla. 
28-29.  There  seems  to  be  some 
doubt  whether  she  would  be  ex- 
empt in  cases  of  misdemeanor. 
Com.    V.    Churchill,    136    Mass.    148. 

53—3  Greenf.  7;  4  Bla.  28-29; 
1  Hale  P.  C.  49:  "The  wife  is 
not  excused  by  the  mere  presence 
of  her  husband  for  any  criminal  act 
done  voluntarily  by  her,  but  in  or- 
der for  her  to  be  excused  it  must 
appear  that  violent  threats,  com- 
mand and  coercion  was  used  by  him. 
When  the  husband  and  wife  reside 
together,  he  is  the  head  of  the 
house,  which  ever  may  be  the  owner 
or  the  lessee.  In  order  to  hold  her 
liable  criminally  for  permitting 
gaming  therein,  while  he  is  present, 
it  must  appear,  that  she  was  active 
in  granting  permission,  not  merely 
that  she  was  passive  in  the  matter 
and  took  no  measure  to  prevent  the 


game.  Bell  v.  State,  92  Ga.  49,  18 
S.  E.  186. 

In  a  trial  of  a  married  woman  for 
mayhem  committed  in  the  presence 
of  her  husband,  where  by  her  own 
evidence  she  exonerated  him  of  all 
complicity  in  the  crime,  the  court 
properly  refused  to  instruct  the  jury 
either  that,  if  the  husband  was 
present  they  must  acquit,  or  that 
if  there  was  no  evidence,  that  the 
defendant's  husband  disapproved  of 
the  acts  of  defendant,  and  unless 
the  fact  is  established  they  must 
acquit. 

The  prosecution  for  murder  shown 
to  have  been  committed  by  the  hus- 
band and  wife  where  upon  the  trial 
of  the  wife  alone,  the  court  prop- 
erly charged  the  jury,  that  they 
should  consider  the  defendant  a 
femme  sole  and  properly  refused  to 
charge  that  unless  defendant  acted 
willingly,  she  should  be  acquitted; 
the  presumption  that  the  wife  acted 


116  Criminal  Law 

§  137.  Prima  facie  presumption  only.  The  rule  is  well 
established  that  the  presumption  is  prima  facie,  and  can 
be  rebutted  by  any  competent  evidence.  If  the  evidence 
tends  to  show  that  the  wife  acted  independently  of  her 
husband  she  will  be  held  to  be  responsible.  In  fact  there 
is  no  good  reason  for  the  rule.  Observation  and  experi- 
ence teach  us  that  a  husband  is  just  as  likely  to  be  in- 
fluenced by  the  wife  as  the  wife  by  the  husband  under 
the  conditions  of  society  in  this  country.^  Although  Mr. 
Starkie,  Blackstone,  Lord  Hale,  and  the  late  Mr.  Green- 
leaf  hokl  that  the  wife  was  completely  exempted  from 
the  responsibility  of  the  crime  when  committed  in  the 
presence  of  the  husband. 

§  138.  The  defendant  is  not  responsible  for  crime  he 
is  forced  to  commit.  All  persons  forced  to  coumiit  a 
crime,  through  force,  threats,  or  other  compulsion,  are 
excused  from  prosecution  for  their  acts.^^  This  rule  is 
restricted  to  crimes  which  do  not  atfect  the  life  of  an 
innocent  person.  If  the  purpose  is  to  force  another  to 
commit  a  homicide,  no  force,  however  great,  will  justify 

under  the  coercion  of  her  husband,  the  court  or  jury  would  always  al- 

not  being  allowable  in  cases  of  hoiu-  low   it   to   mitigate   punishment,   as 

icide.    Bibb  v.  State  (Ala.),  94  Ala.  it  might  well  be  a  recommendation 

31,  10  So.  506.  to  executive  clemency;  but  to  hold 

54 — It  may  be  proper  to  say  that  it  to  be  presumed  as  a  fact  in  all 

this  defense  of  marital  coercion,  as  cases    where    the    husband    is    pres- 

a   protection  to  women  engaged   in  ent,  is  a  relic  of  the  belief  in  the 

the  commission  of  crimes,  is  not  a  ignorance      and      pusillanimity      of 

favored   one   and   at   least   in   mod-  women,   which   is   not,   and   perhaps 

em   times,   has   lost  all   solid   foun-  never  was  well  founded,  gives  them 

dation    for    its    existence.      It    lias  no     credit."       U.     S.     v.     Dequel- 

been   abrogated    in    some    states    in  felds  Cr.   L.   Mag.   213,   decided   in 

their    statutes    and    might    well    be  1881  West.  Dist.  Tenn.  Morton  and 

in  all.    B.  &  II.  Lead.  Cas.,  2nd  ed.,  Wife  v.  State   (Tenn.),  209  S.  W. 

81  and  notes.     It  is  an  almost  ab-  G14,  4  A.  L.  R.  2GG  and  note, 

surd    in    this    day    to    pretend    that  55 — 4    Bla.    Com.    30;     Standley 

husbands    can    or    do    cocrco    their  v.   State,   16  Tex.   App.   392;    State 

wives  in  commission  of  crimes,  and  v.   Dowoll,    106   N.   C.    722,   19  Am. 

wlicre    corrcioii    aj)pcarB   as   a    fact,  St.   568. 


Idiots,  Etc. 


117 


him  in  his  act,  since  no  one  has  the  right,  even  to  the 
sacrifice  of  his  own  life,  to  kill  an  innocent  person.  This 
is  illustrated  by  an  example  cited  by  the  old  writers  on 
the  law,  as  where  persons  in  a  shipwreck  have  no  right 
to  kill  a  member  of  the  crew  or  passengers,  not  even 
where  the  danger  is  imminent  that  all  will  starve  unless 
some  of  them  suffer  their  bodies  to  furnish  food  for  the 
balance.  Sir  William  Blackstone  contends  if  two  per- 
sons are  upon  a  board  upon  the  waters  of  the  sea  and  it 
is  evident  that  both  will  perish  unless  one  or  the  other 
is  thrown  overboard,  the  one  who  kills  the  other  is  jus- 
tified in  his  act.^® 


56 — In  the  case  of  the  United 
States  V.  Holmes,  Mr.  Justice  Bald- 
win I.  Wall,  Jr.  1:  "An  illustra- 
tion of  the  principle,  occurs  in  the 
ordinary  case  of  self-defense, 
against  lawless  violence,  aiming  at 
the  destruction  of  life,  or  design- 
ing to  inflict  grievous  bodily  harm 
to  the  person;  and  within  this 
range  may  fall  the  taking  of  life 
under  other  circumstances,  where 
the  act  is  indispensably  requisite 
to  self  existence.  For  example: 
Suppose  that  two  persons,  who  owe 
no  duty  to  each  other,  that  is,  not 
mutual,  should  by  accident  not  at- 
tributable to  either,  be  placed  in 
a  situation  where  both  cannot  sur- 
vive. Neither  is  bound  to  the  other 's 
life  by  sacrificing  his  own;  nor 
would  either  commit  a  crime  in  sav- 
ing his  own  life  in  a  struggle  for 
the  only  means  of  safety. 

Of  this  description  of  this  class 
of  cases,  are  those  which  have  been 
cited  by  counsel,  from  writers  on 
natural  law;  cases  which  we  rather 
leave  to  your  imagination,  than 
minutely  describe. 

Again  I  state,  that  when  the 
great  "Law  of  Necessity"  does  ap- 


ply, and  is  not  improperly  exer- 
cised, the  taking  of  life  is  divested 
of  unlawfulness.  The  slayer  must 
not  be  under  any  obligation  to  make 
his  own  safety  secondary  to  the 
safety  of  others.  A  familiar  prin- 
ciple illustrates  itself  in  the  obli- 
gations, which  rest  upon  the  owners 
of  stages,  steam  boats  and  other 
vehicles  of  transportation. 

In  consideration  of  the  payment  of 
fares  the  owners  of  the  vehicle  are 
bound  to  transport  the  passengers 
the  place  of  destination  having  in  all 
emergencies  the  conduct  of  the  jour- 
ney, and  control  of  the  passengers, 
the  owners  rest  under  the  obligation 
for  care,  skill,  and  general  capacity: 
and  if  from  defect  of  any  of  these 
requisites,  grievous  injury  is  done  to 
the  passenger,  the  persons  employed 
are  liable.  The  passenger  owes  no 
duty,  but  submission.  He  is  under 
no  obligation. 

Nor  is  the  passenger  bound  to 
labor,  except,  in  cases  of  emer- 
gency, where  his  services  are  re- 
quired by  unanticipated  and  uncom- 
mon danger. 

Such  is  the  relation  which  ex- 
ists  on   shipboard.     The   passengers 


118 


Criminal  Law 


§  139.  Fraud  or  subterfuge  duress.     Upon  principle 
there  seems  to  be  another  character  of  compulsion  or 


stand  in  a  position  different  from 
that  of  an  officer  and  seamen.  It 
is  the  sailor  who  must  encounter  the 
hardships  and  perils  of  the  voyage. 
Nor  can  this  relation  be  changed 
when  the  ship  is  lost  by  tempest  or 
other  danger  of  the  seas,  and  all  on 
board  have  betaken  themselves  for 
safety  to  the  small  boats,  for  the 
imminence  of  the  danger  cannot  ab- 
solve from  duty.  The  sailor  is 
bound,  as  before,  to  undergo  what- 
ever hazard  is  necessary  to  preserve 
the  boat  and  the  passengers.  Should 
the  emergency  become  so  extreme  as 
to  require  the  sacrifice  of  life, 
there  is  no  reason  why  the  laAv  does 
not  remain  the  same.  The  passen- 
ger, not  being  bound,  either  to 
labor  or  to  incur  the  risk  of  life  can- 
not be  bound  to  sacrifice  his  exist- 
ence to  preserve  the  sailors.  The 
captain,  indeed,  and  sufficient  num- 
ber of  seamen  to  navigate  the  boat 
must  be  preserved ;  for  except  these 
abide  in  the  boat  all  will  perish,  but 
if  there  be  more  than  enough  sea- 
men to  manage  the  boat  the  super- 
numerary sailors  have  no  right  for 
their  safety  to  sacrifice  passengers. 
The  sailors  and  passengers,  in  fact, 
cannot  be  regarded  as  in  equal  posi- 
tions. The  sailor,  to  use  the  lan- 
guage of  a  distinguislied  writer, 
owes  more  benevolence  to  another 
than  to  himself.  lie  is  bound  to  set 
a  greater  value  upon  the  lives  of 
others  than  upon  his  own.  And  while 
we  admit  that  sailor  and  sailor  may 
struggle  with  each  other  for  the 
plank,  which  can  save  but  one,  we 
think  that  if  the  passenger  is  on  the 
plank,  even  tlic  law  of  necessity  jus- 
tifies not,  the  sailor  wlio  takes  it 
from  liiin.     'I'liis  rule  may  be  dccnicd 


a  harsh  one  towards  the  sailor,  who 
may  have  done  his  duty  thus  far, 
but  when  the  danger  is  so  extreme 
that  the  only  hope  is  either  sacrific- 
ing a  sailor  or  a  passenger,  any 
alternative  is  hard,  and  would  it 
not  be  the  hardest  to  sacrifice  a  pas- 
senger, in  order  to  save  a  super- 
numerary sailor?  If  the  sources  of 
danger  have  been  obvious,  and  de- 
struction ascertained  to  be  about  to 
arrive,  though  at  some  future  time, 
there  should  be  consultation  and 
some  mode  of  selection  fixed  by 
which  those  in  equal  relations  may 
have  equal  chances  of  life.  By 
what  mode  then  should  selection  be 
made?  The  question  is  not  without 
difficulty.  Nor  do  we  know  of  any 
rule  prescribed  either  by  the  statutes 
or  the  common  law,  or  even  by  spec- 
ulative Avriters  upon  the  laws  of 
nature.  In  fact,  no  rule  of  general 
application  can  be  prescribed  for 
contingencies,  which  are  wholly  un- 
foreseen. There  is,  however,  one 
condition  of  extremity  for  which  all 
writers  have  prescribed  the  same 
rule.  When  the  ship  is  in  no  dan- 
ger of  sinking  but  all  sustenance  is 
exhausted,  and  the  sacrifice  of  one 
person  is  necessary  to  appease  the 
hunger  of  the  others,  the  selection  is 
by  lot.  This  is  resorted  to  as  the 
fairest  mode,  and  is  in  some  sort  an 
appeal  to  God  for  the  selection  of 
the  victim.  For  ourselves  we  can 
conceive  of  no  mode  so  consonant 
both  to  humanity  and  justice,  and 
the  occasion  must  be  peculiar  which 
will  dispense  with  its  exercise.  If, 
indeed,  iicril  instant  and  over- 
uliclniing,  leaving  no  choice  of 
means  and  no  moment  for  deliliera- 
tion,    llicn    (if    conrse,    there    is    no 


Idiots,  Etc. 


119 


duress  that  will  excuse  the  commission  of  crime.  Thus 
where  by  a  subterfuge  or  fraud  A  induces  B  to  take  a 
medicine,  the  consequences  of  w^iich  is  to  produce  a 
frenzy  or  unconsciousness  of  action,  and  he  commits  a 
crime  while  in  this  condition.  If,  however,  B  takes  the 
drug,  knowing  what  it  is  and  the  effect  it  will  have  upon 
his  mind,  it  will  not  excuse  his  action.  If  he  is  forced 
lo  take  the  drug  he  will  not  be  respons-ible.  Thus,  again, 
where  a  woman,  upon  the  representations  of  another,  is 
induced  to  take  a  drug,  being  innocent  of  the  effects 
upon  her,  thereby  commits  an  abortion  upon  herself,  will 
be  innocent  of  any  crime.^"' 


power  to  consult  to  cast  lots  in  such 
way  to  decide.  But,  even  where  the 
final  disaster  is  thus  sudden,  if  it 
has  been  foreseen  as  certainly  to 
occur,  or  if  no  cause  of  danger  has 
arisen  to  bring  on  the  closing  catas- 
trophe, if  time  has  not  existed  to 
cast  lots,  and  select  the  victim,  then 
as  we  have  said  sardition  should  be 
adopted.  In  no  other  than  this  or 
some  other  like  way  are  those  hav- 
ing equal  rights,  put  upon  equal 
footing,  and  in  no  other  way  is  it 
possible  to  guard  against  partiality 
and  oppression,  violence  and  con- 
flict. What  scenes  more  honorable 
can  imagination  draw  than  a  strug- 
gle between  sailor  and  sailor,  pas- 
senger and  passenger,  or  it  may  be  a 
mixed  affray  in  promiscuous  en- 
deavor to  destroy  each  other.  When 
selection  has  been  made  by  lots  the 
victim  yields,  of  course,  to  his  fate, 
or  if  he  resists  force  may  be 
employed  to  coerce  submission. 
Whether  or  not  a  case  of  necessity 
has  arisen  or  whether  the  law  under 
which  death  has  been  inflicted  has 
been  so  exercised  as  to  hold  the  exe- 
cutioner harmless  cannot  depend 
upon  his  own  opinion,  for  none  may 
pass  upon  his  own  conduct  when  it 


affects  the  rights  of  others,  and 
especially  when  it  concerns  the  lives 
of  others.  We  have  already  stated 
to  you  that  by  the  law  of  the  land 
homicide  is  sometimes  justifiable, 
and  the  law  defines  the  occasion  when 
it  is  so.  The  transaction,  there- 
fore, must  be  justified  by  the  law, 
and  the  person  accused  rests  under 
the  necessity  of  satisfying  those 
Avho  judicially  scrutinize  his  case — 
that  it  really  transcended  ordinary 
rules.  In  fact,  any  other  principle 
would  be  followed  by  pernicious  re- 
sults, and  moreover  would  not  be 
practicable  in  application.  Opinion 
or  belief  may  be  assumed  whether  it 
exists  or  not,  and  if  this  mere  opin- 
ion of  the  sailors  will  justify  them 
in  making  a  sacrifice  of  the  passen- 
gers, of  course  the  mere  opinion 
would  in  turn  justify  these  in  mak- 
ing a  sacrifice  of  the  sailors.  The 
passengers  may  have  confidence  in 
their  ability  to  manage  the  boats, 
or  the  effort  of  either  sailors  or 
passengers  to  save  the  boat  may  be 
clearly  unavailing. 

57 — Harris  v.  United  States,  8 
App.  D.  C.  20,  36  L.  E.  A.  463,  and 
note. 


120  Criminal  Law 

§  140.  Guilt  always  follows  those  who  have  the  intent. 
Fraud  or  subterfuge  will  not  excuse  a  person  from  the 
responsibility  of  its  effects.  It  is  the  same  in  principle, 
whether  the  fraud  or  subterfuge  is  for  the  purpose  of 
committing  a  civil  or  criminal  act.  Where  A  procures 
B  to  commit  a  crime  by  pajdng  him  a  hundred  dollars, 
both  A  and  B  are  guilty.  If  A  procures  B  to  commit  a 
crime  by  paying  him  a  hundred  dollars,  but  B  is  under 
the  age  of  seven  years,  is  an  idiot  or  lunatic,  A  alone 
is  guilty,  because  he  has  resorted  to  the  fraud  and  subter- 
fuge. In  both  instances  A's  intentions  are  the  same. 
Again,  if  A  overcomes  the  will  of  B  by  force  or  subter- 
fuge, A  is  guilty  and  B  is  innocent,  because  B  did  not 
intend  to  do  an  unlawful  act.  Thus,  suppose  A  procures 
B  to  do  a  lawful  act,  but  the  result  of  such  act  ends  in 
a  crime,  A  would  be  guilty  of  the  crime  and  B  innocent, 
provided  A  intended  the  particular  result  obtained.  In 
criminal  law  this  principle  is  universal  that  where  the 
result  of  an  act  can  be  traced,  however  remote  may  be  the 
intent,  the  person  entertaining  such  intent  will  be  re- 
sponsible for  the  result. 

CORPORATIONS 

§  141.  Corporation  held  for  crime  mala  prohibita. 
Natural  persons  possess  certain  natural  rights.  These 
rights  are  inalienable  and  cannot  be  abridged  by  the 
law.  They  are  the  right  to  live,  the  right  to  personal 
security,  the  right  to  acciuire  and  possess  property,  and 
such  others  which,  })erhaps,  do  not  so  mucli  l)oloiig  to  and 
accompany  the  i)erson,  as,  such  as  relate  to  comfort  and 
personal  enjoyment.  Tlic  violation  of  these  natural  rights 
are  crimes,  being  natural  w  rongs.  Punishment  follows  the 
\ioIatioii  of  tlicsc  I'ights.  Whilst  these  rights  acconijjaiiy 
and  foHow  the  person  Into  society,  yet  tlierc  arc  other 
rights  of  tlie  same  nature,  hut  of  less  imjxu'taiicc,  upon 


Idiots,  Etc.  121 

which  certain  restraints  are  placed,  and  which,  by  com- 
mon and  universal  consent,  are  conceded  for  the  benefit  of 
society.  Thus  the  natural  person  is  prohibited  or  com- 
manded to  do  certain  things  for  the  benefit  of  the  commu- 
nity, which,  in  the  absence  of  social  order,  would  be  his 
natural  right  to  do  or  not  to  do,  as  his  inclination  might 
suggest.  The  violation  of  these  restrictions  are  known  as 
crimes  mala  prohibita — wrongs  prohibited.  There  is  a 
class  of  artificial  persons  who  derive  their  rights  and 
powers  from  the  laws  of  the  state,  and  in  no  sense  have 
rights  which  belong  to  and  attach  themselves  as  inde- 
pendent attributes.  The  law  creates  them  and  they  have 
no  rights  except  those  specifically  delegated  to  them.  They 
are  commanded  or  prohibited  by  the  law  to  do  or  not  to  do 
those  things  which  are  supposed  to  be  for  the  good  of 
the  community.  A  violation  of  any  of  these  prohibitions 
or  commands  of  the  law  are  crimes  mala  prohibita.  In 
this  sense  artificial  and  natural  persons  are  upon  exactly 
equal  footing  before  the  law.  The  artificial  person  may 
violate  one  of  these  natural  rights,  hence  punishment 
would  follow  as  a  natural  right.  It  may  violate  one  of 
the  commanded  or  prohibited  rights  and  punishment 
would  follow  as  a  legal  right.  The  duties  and  obliga- 
tions due  society  are  just  as  binding  upon  the  artificial 
person  as  upon  the  natural.  These  artificial  persons, 
known  as  corporations,  have  no  corporeal  existence,  and 
hence  corporeal  punishment  cannot  be  inflicted.  Thus 
they  cannot  be  punished  for  murder,  robbery,  theft, 
arson,  treason,  or  any  other  felony.  As  natural  persons 
the  punishment  for  these  crimes  is  either  death  or  con- 
finement in  the  penitentiary.  Again,  artificial  persons, 
not  possessing  the  spiritual,  mental  or  physical  attributes 
of  the  natural  persons,  cannot  form  the  necessary  evil  or 
wicked  intent  to  commit  these  crimes,  hence  they  are 
exempt  from  punishment  on  common  law  principles.  In- 
dividual persons,  who  compose  the  concrete  person,  may 


122  Crimixal  Law 

be  punished  if,  tliroiigli  their  procurement  or  consent, 
the  artificial  person  is  made  tlie  means  of  perpetrating 
any  of  the  crimes  of  felony  or  treason.  Upon  legal  prin- 
ciple there  seems  no  reason  why  the  individual  members 
of  a  corporation  should  not  be  punished,  at  least  as  con- 
spirators, where  the  crime  is  committed  by  the  common 
means  to  a  common  end.  But  in  cases  mala  prohibita, 
where  there  is  no  specific  intent  required  and  no  cor- 
poreal punishment  inflicted,  the  artificial  person  may  be 
punished  criminally  to  the  same  extent  as  the  natural 
person.  There  is  no  reason  why  a  corporation  could  not 
be  punished  by  fine  for  negligently  and  wilfully  killing 
a  person,  or  for  negligently  and  wilfully  setting  fire  to 
another's  property,  or  any  other  statutoiy  felony.*® 

§  142.  Early  history  as  to  corporations.  The  early 
judicial  history  concerning  corporations  reveals  that,  as 
such,  they  were  not  subject  to  indictment.  It  is  attributed 
to  Lord  Chief  Justice  Holt  that  he  held  in  an  early  case 
that  ^'corporations  were  not  indictable,  but  that  the  in- 
dividual members  w^ere."^"  It  is,  however,  denied  in  a 
latter  case  by  Judge  Green  that  Lord  Holt  made  such  a 
ruling,  that  the  langiiage  attributed  to  him  was,  in  fact, 
an  interj^olation  by  his  reporter.^^  Judicial  histoiy  de- 
clares that  for  a  time  the  courts  held  that  coi*porations 

59 — Coni'rs    v.    Boston    «&    M.    R.  cases:        State     v.     Belle      Springs 

Co.,  8  Amr.  and  Eng.  R.  E.  Co.  298;  Creamery  Co.,  83  Kan.  389,  111  Pac. 

Com.      V.      New     Bedford     Bridge  474;     Louisville     R.     Ry.     Co.     v. 

(Mass.),    2    Gray    339;    Hackset   v.  Com.,  130  Ky.,  114  S.  W.  343,  132 

Amos    Kcag    Mfg.    Co.,    44    N.    II.  A.  S.  R.  408;  Com.  v.  Illinois  Cent. 

105;  Easton  v.  Same,  44  N.  H.  143;  R.  Co.,  152  Ky.  320,  153  S.  W.  459, 

R.  R.  Co.  V.  Duquosne  Burougli,  10  45  L.  R.  A.   (N.  S.),  334;  Southern 

Wright    (Pa.)   223;   Queen  v.  Brad-  l?y.  Co.,  125  Ga.  287,  54  S.  E.  160, 

ford  Navigation  Co.,  6  Best  &  Smitli  114    A.    S.    R.    203. 
629;    Com.    v.    Pulaski    Co.    Agr.    &  60—12  Mod.  529. 

Mpch.    Association,    17    S.    W.    442  61— State   v.    Morris   &    Essex   R. 

(Ky.);   Milhroth  v.  State,  138  Wis.  H.   Co.,  23   N.   .1.   Sup.  364;    Keg.   v. 

3.54,   120   N.   W.    252,   131    A.    S.    If.  County  of  Wilts,  1  Saik.  359. 
inil2,      ;iii(|      note.        S('(!      following 


Idiots,  Etc.  123 

wore  not  indictable  for  a  misfeasance  or  the  doing  of  an 
act  prohibited  by  law,  but  were  indictable  for  a  non- 
feasance, or  the  failure  to  do  a  duty  imposed  by  law.^^ 
These  distinctions  between  misfeasance  and  nonfeasance 
are  without  a  difference  in  essential  respects.  It  is  now 
well  settled  that  corporations  may  be  indicted  for  both 
classes  of  offenses  upon  the  principles  of  the  common  law ; 
yet,  however,  upon  the  principles  of  the  common  law, 
indictment  cannot  lie  against  a  corporation  for  offenses 
deriving  their  criminality  from  evil  intention.  Malice 
cannot  be  predicated  of  a  corporation.  They  cannot  be 
guilty  of  murder,  treason,  perjuj.y,  rape,,  robbery  or 
burglary.  There  are  also  punishments  that  cannot  be 
inflicted  because  inconsistent  with  their  nature.  There 
is  no  reason  to  suppose  that  corporations  should  not  be 
held  criminally  for  the  acts  of  their  agents.^^  The  crim- 
inal law  holds  all  parties  connected  with  a  criminal  of- 
fense responsible  to  the  public,  whether  the  actual  per- 
petrator or  not.  It  is  said  that  the  agent  is  individually 
responsible;  a  refutation  is  found  to  that  rule  of  the 
criminal  law  ' '  that  the  principal  is  guilty  and  responsible 
for  the  acts  of  the  agent. ' '  This  principle  of  the  criminal 
law  is  in  all  respects  similar  to  the  relation  existing  be- 
tween principals  and  agents  in  the  civil  law.  If  the 
offense  is  a  misdemeanor  all  are  guilty,  if  a  felony  those 
who  authorize  the  commission  of  the  offense  are  guilty 
as  accessories  if  not  present  at  the  commission. 

§  143.  For  what   acts   corporation  may  be  indicted. 

Corporations  may  be  indicted  for  erecting  and  continu- 
ing a  building;  for  leaving  railroad  cars  in  the  street;  for 

62—0.  M.  V.  New  Bedford  Bridge  County  Agr.  Mech.  Assn.,  17  S.  W. 

Co.,  2  Gray   (Mass.)   345;  Queen  v.  42    (Ky.). 

Birmingham   &   Glouster  E.   E.   Co.,  63 — Stewart     v.     Waterloo     Turn 

9  C.  &  P.  469;  Mawer  v.  Leister,  9  Verein,   71   la,   226,  32   N.  W.   275, 

Mass.    250;    Susquehanna    &    Bath  60  Amr.  Eep.  786;  Overland  Cotton 

Turn  Pike  Co.  v.  People,  15  Wend.  Mills   Co.   v.   People,   32   Colo.   263, 

(N.    Y.)    276;    Com'rs    v.    Pulaski  75   Pac.   924,   105  A.   S.   E.   74. 


124  Criminal  Law 

neglecting  to  repair  a  highway,  for  permitting  stagnant 
water  to  remain  on  their  premises;  for  libel;  for  Sabbath 
breaking  by  doing  work  on  Smiday  in  violation  of  stat- 
ute ;  ^  for  failure  to  give  signals  of  approaching  trains 
where  the  safety  of  travelers  on  intersecting  roads  de- 
mands it;  for  cutting  through  and  obstructing  a  high- 
way ;  for  keeping  a  disorderly  house ;  for  pennitting  gam- 
jj^g.65  fQj.  permitting  a  pool  of  water  to  form  upon  its 
land  and  become  stagnant  and  to  percolate  upon  land 
joining  a  canal.^^  In  fact,  an  indictment  will  lie  for  a 
failure  to  do  what  the  law  requires  to  be  done,  or  for 
doing  a  legal  thing  in  an  illegal  manner.  It  is  well  set- 
tled in  the  courts  in  this  country  that  a  corporation  is  in- 
dictable for  a  misfeasance  as  well  as  nonfeasance.  They 
may  be  indicted  for  a  nuisance,  whether  arising  from  a 
misfeasance  or  a  nonfeasance. 

§  144.  Where  the  law  cannot  reach,  the  legislature  may. 
In  concluding  this  subject  the  observation  is  pertinent 
that  ill  all  cases  where  the  common  law^  cannot  be  made 
to  reach  the  evil,  by  reason  of  the  inability  to  form  an 
evil  or  malicious  intent  or  because  the  punishment  cannot 
be  infiictod,  as  upon  natural  persons,  the  proper  power  to 
inflict  appropriate  penalties  may  be  extended  by  the  leg- 
islature. Corporations  may  and  should  be  made  to  yield 
to  proper  penalties  or  fine  for  injuries  inflicted  upon  the 
public;  to  do  this  is  perfectly  consistent  with  legal  prin- 
ciples. If  the  corporation,  through  the  negligence  of  its 
officers,  or  mismanagement,  or  the  fault  of  its  employees, 
commits  the  crime  of  homicide,  should  it  be  exempt  be- 
cause a  corporation  is  an  artificial  person,  composed  of 
many  actual   persons?     Individuals   are   criminally   re- 

64 — Com.   V,   Pulaski  Co.   Agr.   &  4,    title    Corporations.      See    People 

Mcch.  Ass'n,  17  S.  W.  442  (Ky.).  v.  White  Lead  Works,  82  Mich.  471, 

65— State    v.     Passaic     Co.     Agr.  46    N.    W.    735,    9    L.    K.    A.    722; 

Soc,  54  N.  .T.  L.  546,  23  A.  680.  State   v.    Portland,   74   Me.   268,   43 

66— Anir.  &  Kng.  Encycla.  Ij.  vol.  Am.   Hop.   586,  contra. 


Idiots,  Etc.  125 

sponsible  for  the  negligent  killing  of  another,  and  why- 
should  a  corporation  escape  ?  If  the  servant  or  the  agent 
is  guilty  of  negligence  he  is  also  responsible  on  his  own 
account.  This  reasoning  is  applicable  to  an  almost  in- 
conceivable variety  of  wrongs  committed  by  corporations 
or  their  agents. 

IGNOEANCE  OF  THE  LAW 

§  145.  Ignorance  of  the  law  excuses  no  man.  Ignor- 
antia  legis  neminem  excusat  is  a  maxim  of  the  law. 
Every  person  is  presumed  to  know  the  law.  This  is  an 
irrebuttable  presumption.^'  The  law  must  be  published. 
The  citizens  are  entitled  to  this  concession  on  the  part 
of  the  government.  Most  states  have  constitutional  or 
statutoiy  provisions  regulating  the  manner  of  publishing 
tlie  law.  In  the  absence  of  organic  provisions  the  legisla- 
tures make  necessaiy  provisions,  governing  the  publica- 
tion of  the  law.  Caligula,  that  most  tyrannical  of  Roman 
emperors,  issued  a  decree  from  the  throne  commanding  the 
laws  to  be  written,  but  counteracted  the  effect  by  order- 
ing them  placed  at  such  an  elevation  that  the  citizens 
could  not  read  them.  The  law  of  the  Twelve  Tables  was 
plainly  written  and  affixed  to  the  rostia,  in  front  of  the 
Curia  Hostilia,  and  all  citizens  were  peraiitted  to  read  the 
law,  and  it  was  usual  for  the  citizens  to  commit  the  laws 
to  memory,  so,  from  his  earliest  youth,  the  Roman  knew 
the  laws  of  his  country.^*  It  is  the  duty  of  the  govern- 
ment to  make  provisions  for  the  publication  of  the  laws. 

§  146.  Justice  requires  that  general  rules  have  excep- 
tions. It  is  a  well  recognized  maxim  that  all  general 
rules  have  exceptions.  No  human  foresight  can  create 
a  postulate  covering  all  possible  cases  arising  in  human 
action.     This  is  also  true  of  the  rule  that  all  men  are 

67 — Com.    V.    Bagley,    24    Mass.  68 — Eidpath's  Universal  History, 

279;    Wharton    v.    State,    37    Miss.       vol.  I,  686. 
379;  Walker  v.  State,  2  Swan,  287. 


126  Criminal  Law 

presumed  to  know  the  law  of  the  country  where  they 
live  and  where  they  do  business.  The  jurist  and  the 
casuist  agree  in  one  proposition  in  this,  that  public  pol- 
icy demands  for  the  protection  of  society  that  the  pre- 
sumption have  a  universal  application.  Both  admit, 
however,  that  there  are  many  instances  when  the  harsh- 
ness of  the  rule  should  be  relaxed  in  the  furtherance  of 
justice.^ 

§  147.  Exceptions  to  the  rule  that  all  men  are  pre- 
sumed to  know  the  law.  The  exceptions  to  this  rule  arc 
principally  embraced  in  such  crimes  as  require  a  special 
intent.''^**  Thus,  in  crimes  malum  in  se  all  persons  are 
presumed  to  know  that  they  are  wrong.  That,  by  an  iii- 
ate  consciousness,  we  are  informed  of  the  elements  of 
wickedness  in  such  crimes.  We  cannot  claim  exemp- 
tion from  guilt  arising  from  committing  any  crime 
possessing  such  elements.  We  know  that  it  is  wrong  to 
commit  them,  whether  the  law  as  such  expresslj^  pro- 
hibits them  or  not.  Thus  in  crimes,  such  as  murder, 
theft,  robbery,  burglary,  etc.,  we  are,  by  the  instinct  of 
our  nature,  advised  of  the  wickedness  of  such  acts,  and 
it  requires  no  legislator  to  define  them  in  order  to  make 
it  wrong  to  commit  lliem.  Therefore  ignorance  llinl  the 
law  has  made  sncli  acts  crimes  Avill  not  excuse  the  guilt. 

§  148.  Exception  in  the  case  of  larceny  of  property. 
An  exception  is  here  given:  Where  one  believes  he  has 
tlie  right  to  personal  property  and  takes  it  and  appro- 
]triates  it  to  his  own  use.  The  main  element  of  theft  is 
the  fraudulent  intent  t<»  take  the  property  of  another  and 

fiO— People    V.    Anderson,    44    (':il.  70— Cuttler    v.     St:ite,    3G    N.    J. 

6.j;   Stern  v.  State,  53   Ga.   229,  21  L.  125;  Com.  v.  Cook,  1  Kob.  (Va.) 

Am.    Kcp.    2GG;    State    v.    Gardner,  729 ;  Com.  v.  Cornish,  6  Binn.  (Pa.) 

5   Nov.   377;    Crahtrec   v.   State,   30  242;   State  v.  Gates,  17  N.  II.  373; 

Oliio   St.   382;    Vatcs   v.   People,  32  Lesson  v.  State,  62  Ind.  437. 
N.    Y.    509;    Farbacdi    v.    State,    24 
Ind.  77. 


Idiots,  Etc.  127 

appropriate  it  to  tlie  taker's  own  use  and  benefit.  If, 
therefore,  property  is  taken  under  the  mistaken  belief 
that  the  taker  had  the  legal  right  to  it,  there  can  be 
no  criminal  intent  to  appropriate  it,  notwithstanding  it 
may  afterwards  transpire  that  he  did  not  have  any 
right  to  it.  The  belief  of  the  legal  interest  in  the 
property  must  be  founded  upon  some  color  of  right, 
creating  an  honest  belief  that  the  property  belonged  to 
the  taker,  before  he  will  be  excused.  Where  the  question 
is  one  of  intent  it  is  competent  to  show  one's  ignorance 
of  an  existing  law.  So,  also,  in  cases  of  malicious  mis- 
chief if  the  defendant  honestly  believes  he  has  the  right 
to  do  certain  acts  under  the  law  and  it  afterwards  turns 
out  that  the  law  makes  such  acts  penal.  Thus,  suppose 
*'A"  believes  he  has  a  right,  under  certain  facts  in  his 
possession,  to  make  a  trespass  upon  another's  property, 
but  that  it  afterwards  turns  out  that  it  is  illegal,  he  will 
be  exempt  from  legal  responsibility."''^ 

§  149.  Further  discussion  of  the  rule.  The  proposition 
reduced  to  a  rule  means  that  if  a  person  commits  an  act 
that  would  otherAvise  be  criminal,  ignorance  of  the  law 
making  the  act  criminal  may  be  put  in  evidence  for  the 
purpose  of  negativing  a  malicious  intent  and  for  the  fur- 
ther iDurpose  of  affirmatively  showing  the  act  to  have 
been  honestly  made.'''^  Thus,  where  one  charged  with 
perjury  shows  that  he  sought  the  aid  of  counsel  as  to 
whether  a  certain  oath  would  be  contrary  to  the  law.  So 
in  an  assault  where  the  defendant  honestly  believes  he 
has  a  right  to  make  it.  Again,  where  one  acts  in  self 
defense  upon  appearances  of  danger  he  believes  it  is  nec- 
essary to  act  in  order  to  preserve  his  own  life  he  is 
therefore  guiltless.  It  appears  to  us  that  if  the  de- 
fendant shows  himself  to  have  acted  in  good  faith  and 

71— Evans  v.  State,  15  Tex.  App.  72— Eex    v.    Esop,    7    Car    &    P. 

31;  State  v.  Harris,  17  Mo.  379;  457;  Eex  v.  Eeed,  7  Car  &  P.  303; 
State  V.  Bond,  8  Iowa,  540.  Eex  v.  Langford,  6  Car  &  M.  602. 


128  .  Criminal  Law 

under  the  mistaken  belief  that  he  had  the  right  to  do  as 
he  did  the  ignorance  of  kiw  may  be  shown  in  miti- 
gation at  least.'''^  Thus,  those  who  are  specialists  in  any 
line  are  held  to  a  stricter  responsibility  in  their  actions 
and  the  performance  of  their  duties  than  others.  Upon 
questions  of  law,  lawyers  are  held  to  a  stricter  responsi- 
bility than  persons  who  do  not  make  the  law  a  specialty.'* 
Physicians  and  specialists  in  medicine  are  held  to  a 
stricter  caution  in  administering  drugs  than  other  per- 
sons. Thus,  a  physician  who  negligently  administers 
poison  or  directs  uninformed  ])ersons  to  administer 
it  will  be  guilty  of  manslaughter  in  the  event  the  person 
dies,  and  perhaps  guilty  of  an  assault  if  the  person  re- 
covers. Those  persons  who  possess  greater  opportunities 
of  acquiring  knowledge  or  information  concerning  spe- 
cial or  particular  things,  are  held  to  a  higher  degree  of 
responsibility  than  others  whose  opportunities  and 
knowledge  is  restricted.  So  those  who  operate  machin- 
ery and  otlier  things  Avhich  require  special  education,  or  a 
high  degree  of  skill,  and  the  like,  are  required,  as  a  mat- 
ter of  law,  to  exercise  a  high  degree  of  caution  in  the  per- 
fomiance  of  their  respective  duties,  and  where  they  fail 
to  do  so,  ignorance  that  the  law  puts  this  burden  on  them 
or  ignorance  or  want  of  skill  in  the  performance,  will  not 
excuse  them,  and  cannot  be  used  as  a  defense.'^ 

§  150.  Where  the  laws  are  plain  and  beyond  doubt.  No 
person  can  be  permitted  to  come  into  court  and  offer  as 
a  defense,  either  in  a  civil  or  criminal  case,  his  ignorance 
of  the  law.  As  hereinbefore  explained,  he  may  offer  his 
ignorance  of  the  law  or  his  honest  belief  that  the  law 
was  otherwise  in  justification  of  his  acts.     Where  the 

73 — Sec  siiino  iiuthorifics  as  above.  0.   D.   235;    State   v.   Goodcnow,   65 

74— Marrill    v.    Graham,    27    Tex.  Me.    30;    Dickons   v.    State,   30    Ga. 

— ;    Wilson   v.   Rush,    20   Tex.   421;  383;     Summer    v.     Bulor,     50    Ind. 

Hilo.v  V.  CavanouRh,  29   Ind.  435.  341,  19  Am.  Rop.   718. 
75— U.    S.    V.    ]4   PackaRcs   Gilp., 


Idiots,  Etc.  129 

laws  are  plain  and  beyond  doubt  intent  may  be  presumed 
from  the  failure  to  know  the  law.  Thus,  as  in  the  case 
of  the  woman  who  insisted  upon  the  right  to  vote  when 
all  the  law  is  plainly  against  if^ 

IGNORANCE  OF  FACT 

§  151.  Ignorance  of  facts  excuses  crime.  There  are 
two  kinds  of  criminal  acts:  Acts  of  commission  and  acts 
of  omission.  The  crime  of  commission  is  doing  the  thing 
which  the  law  prohibits.  The  crime  of  omission  is  the 
failure  to  do  what  the  law  commands  to  be  done.  Hence,  a 
crime  is  the  failure  to  do  or  not  to  do  a  particular  act.  All 
crimes  do  not  require  a  culpable  will;  that  is,  a  will  mis- 
chievous within  itself,  but  when  the  law  requires  a  thing 
to  be  done  and  the  failure  to  do  that  thing  results  in  an 
injury  to  an  individual  only,  such  person  has  his  right 
of  action  for  damages  for  the  injury.  If  the  thing  re- 
quired to  be  done  is  a  thing  in  which  the  public  is  in- 
terested, such  as  the  repairment  of  bridges  and  high- 
ways, the  failure  to  comply  with  the  law  is  criminal,  and 
the  law  imputes  an  intent  from  the  failure  to  act  as 
required.  When  the  law  prohibits  the  doing  of  an  act 
the  doing  of  it  is 'not  always  criminal — does  not  always 
contain  the  necessary  intent.  In  such  cases  there  is  no 
crime.  Sometimes  the  intent  is  inferred  from  the  man- 
ner in  which  a  prohibited  act  is  committed.  In  some 
cases  the  intent  is  inferred  from  the  means  used  in  doing 
the  prohibited  act.  In  others  the  act  is  committed  under 
the  misapprehension  or  mistake  of  fact.  When  such  is 
the  case  the  intent  is  wanting  and  no  crime  is  com- 
mitted.'''' 

76 — state    v.    Goodenow,    65    Me.  77 — People    v.    Deoine,    95    Cal. 

30;  Com.  V.  Mosh,  7  Mete.  472;  Hal-  227,  30  Pac.  378;  Prinder  v.  State, 

stead  V.  State,  12  Vroom.  (N.  J.  L.)  27  Fla.  370,  8  So.  837,  26  A.  S.  R. 

552,    32    Amr.    Rep.    247;    Gardner  75;    Steinmeyer    v.    People,    95    111. 

V.  People,  62  N.  Y.  299;   Hamilton  383;  Stanley  v.  Com.,  86  Ky.  440,  6 

V.  People,  57  Cush.  (N.  Y.)  625.  S.  W.  155,  9  A.  S.  R.  305-   People 
C.  L.— 9 


130  Criminal  Law 

§  152.  Mistake.  The  rule  is  universal  and  applies  to 
all  actions  of  men,  that  honest,  bona  fide  mistakes  do  not 
bind  the  persons  making  tliem.'''^  This  is,  however,  qual- 
ified by  the  duty  imposed  by  the  law  upon  all  persons  to 
use  due  diligence  and  foresight  in  avoiding  mistakes. 
Due  caution  is  required  by  all  in  transacting  the  business 
and  in  seeking  the  pleasures  of  life,  and  where  one  is 
injured  by  a  want  of  care  in  another  the  law  holds  such 
persons  responsible.  So,  if  by  a  mistake  another  is  in- 
jured through  want  of  care  or  proper  pnidence,  and  ex- 
emption cannot  be  claimed  from  the  consequences  of  such 
imprudence.  But  where  one  following  a  pursuit  or  is 
engaged  in  an  act  which  is  lawful,  he  having  used  the 
care  required  by  law,  and  an  injury  has  resulted  to  the 
public  by  reason  of  his  mistake,''^  and  if  such  act  results 
in  an  offense  which  he  had  no  reason  to  believe  would 
be  the  result,  there  can  be  no  crime.  Thus,  if  he  fire  a 
gun  at  a  vulture  and  the  charge  kills  a  man  he  did  not 
see  or  wounds  a  horse  he  did  not  know  was  in  the  range, 
the  killing  of  the  man  would  be  excusable  homicide  and 
the  killing  of  the  horse  would  not  constitute  malicious 
mischief. 

§  153.  Homicide  committed  under  the  misconception 
of  facts  excusable.  Homicide  committed  by  accident, 
known  in  the  books  as  misadventure,  is  excusable.  This 
presents  the  highest  degree  of  innocence  to  the  charge  of 
homicide.  Homicide  committed  in  self-defense  is  not,  m 
all  respects,  wholly  free  from  blame,  but  in  the  case  of 
accidents  where  the  party  is  doing  a  lawful  act  in  a  lawful 

V.  Welch,  71  Mieh.   548,  39  N.  W.  79— Harris    Cr.    L.    31;    McPhcr- 

747.  son  V.  State,  22  Ga.  479;   Clark  v. 

78— Nance    v.    Metcalf,    19    Mo.  State,   19   Tex.  App.  495;   State  v. 

App.    193;    Tucker   v.    Madden,    44  Benham,    23    Iowa,    154,    92    Anir. 

Me.    206;    Husb   v.   Morris,    63    Pa.  Dec.     417;     Duncan     v.     State,     7 

St.  367;  Griswold  v.  Smith,  10  Vt.  Hunph.   (Tenn.)   148. 
452,  15  Amr.  &  Eng.  P^ncla.  L.  626 
and  note. 


Idiots,  Etc.  131 

manner  or  by  lawful  means  there  is  no  fault  whatever. 
An  instance  of  which  appears  where  a  man  is  at  work  with 
a  hatchet  and  the  head  flies  off  and  kills  a  stander-by;  or 
where  a  person  is  qualified  to  keep  a  gun,  shoots  at  a  mark 
and  undesignedly  kills  another.  So  where  a  parent  is 
moderately  correcting  his  child  or  a  school-master  his 
scholar  is  only  a  misadventure  if  death  results,  because 
the  law  gives  the  right  of  inflicting  a  moderate  chastise- 
ment in  such  instances.^®  So,  also,  in  all  cases  where  the 
circumstances  justify  or  excuse  homicide,  and  by  mistake 
a  bystander  is  killed,  the  killing  is  excusable.  The  doc- 
trine of  self-defense  is  that  if,  from  a  defendant's  stand- 
point, danger  reasonably  appears  imminent  and  pressing, 
one  may  act  upon  such  appearances  when  in  fact  the 
danger  was  not  imminent  and  pressing,  and  while  acting 
upon  such  appearances  an  innocent  person  is  killed  it  is 
justified."  No  higher  degree  of  care  is  required  in  the 
latter  case  than  if  the  assailant  were  killed  in  the  fonner. 

80—4  Bla.   180   to   185.  Wells,   1   N.   J.  L.   Rep.   424,   Amr. 

81— Shorter   v.    People,    2    N.   Y.  Dec.   211;    Price  v.   State,    18    Tex. 

193,   51    Amr.   Dec.   286;    U.    S.   v.  App.  474;  Massie  v.  State,  16  S.  W. 

Wiltberger,    5    Wh.    76;     State    v.  720, 


CHAPTER  VII 


CEIMINAL  INTENT 


§  154.  Criniinal  intent  precedes 
criminal  act. 

§  155.  A  purpose  to  commit  a  spe- 
cific crime. 

§  156.  A  purpose  to  commit  a 
specific  crime  and  through 
mistake  a  different  crime  is 
committed. 

§  157.  Accident  or  mistake  where 
act  does  not  amount  to 
crime. 

§  158.  The  criminality  or  non- 
criminality  of  crime  of  an 
evil    intent. 

§  159.  Rule  -where  the  intent  is  to 
commit   a   specific  crime. 

§  160.  Malignity  of  the  intent  is 
measured  by  the  crime  in- 
tended. 

§  161.  Further   discussed. 

§  162.  Where  one  by  his  wrongful 
act  causes  another  to  in- 
jure a  third  person. 

§  163.  Where  there  are  reckless  cruel 
and  wanton  acts. 

§  164.  Innocent  purpose,  but  act 
characterized  by  careless- 
ness. 

§  165.  Rule  where  one  is  in  the  pur- 
suit of  lawful  business. 


§  168.  Common  rule  in  the  perpetra- 
tion of  rape,  etc. 

§  169.  Same  under  statute. 

§  170.  Malice  is  shown  by  the  man- 
ner and  the  means,  etc. 

§  172.  Consequences  of  reckless  and 
Avanton  acts. 

ARSON 

§  173.  Of  the  quality  of  malice. 

LIBKL 

§  174.  What  is  libel,  per  se,  etc. 
§  175.  Malice  in  the  foregoing  crime 
different  in  degree  only. 

PARENT  AND  CHILD 

§  176.  Of  the  duties  and  obligation 
of  parent. 

§  177.  ilutual  obligations  of  parent 
and  child. 

§  178.  Duty  the  strong  owes  to  the 
weak. 

§  179.  Parent  has  no  right  to  en- 
force obedience  to  illegal 
act. 

§  180.  Punishment  must  be  admin- 
istered free  from  malice. 

§  181.  Tlie  parent  may  under  some 
circumstances  kill  to  pro- 
tect the  child. 


§  166.  What  constitutes, 

MURDER 

§  167.  Defined   and   explained   ns   to 
elements  of  malice. 


HUSBAND    AND    WIFE 

§  182.  As  to  the  intent  of  the  wife 
while  under  the  coercion  of 
the   Inishand. 

S  183.  Wife's  defense. 


132 


Criminal  Intent  133 

TEACHERS  AND  INSTRUCTORS  §  185.  Guardian  and  ward. 

§  184.  The   teacher's   intent   in   cor- 
recting child  pupil. 

§  154.  Criminal  intent  precedes  criminal  act.    It  is  a 

governing'  principle  in  criminal  jurisprudence  that  evil 
or  wicked  intent  precede  the  criminal  act.  A  mere  intent, 
evil  though  it  be,  is  not  criminal  unless  an  act  follows 
predicated  upon  such  intent.  Where  there  is,  in  point  of 
fact,  no  intent;  where  there  is  no  capacity  to  distinguish 
between  right  and  wrong;  where  there  is  coercion  or 
duress;  where  there  is  a  mistake  or  ignorance  of  fact  in 
crimes  mala  in  se,  no  crime  can  be  committed.  Those 
criminal  or  evil  purposes  of  which  the  law  takes  notice 
are  characterized  under  the  following  subdivisions:  1. 
A  purpose  to  commit  a  specific  crime.  2.  A  purpose  to 
commit  a  specific  crime  and  through  mistake,  misad- 
venture or  accident  a  different  crime  is  committed  from 
that  intended.  3.  Where  there  are  reckless,  wanton  and 
cruel  acts,  evidencing  a  general  and  malicious  evil  intent, 
but  without  a  purpose  to  commit  a  specific  crime  or  any 
crime.  4.  An  innocent  purpose,  but  where  the  act  is 
characterized  by  carelessness  and  negligence.^ 

§  155.  A  purpose  to  commit  a  specific  crime.    If  the 

purpose  is  to  commit  a  specific  offense  and  that,  in  fact, 
is  committed,  no  difficulty  is  encountered,  and  it  is  clear 
that  the  perpetrator  should  be  punished,  because  the  in- 
tent and  the  act  coincide  in  every  particular — the  act  re- 
lates back  and  is  united  with  the  intent,  and  the  crime 
committed  is  commensurate  with  the  intent.  There  can  be 
no  difficulty  in  determining  the  degree  of  guilt  if,  in 
fact,  the  crime  is  committed,  because  he  committed  an 

1— Dotson  V.   State,  62   Ala.  308,       O'Neil,    147   Iowa   513,    12G   N.   W. 
34  Am.  Rep.  2;   State  v.  Welch,  73       451,  Ann.  Cas.  1912  B,  691. 
Mo.  284,  39  Am.  Eep.  515;  State  v. 


134  Criminal  Law 

act  with  the  specific  intent  to  do  w^hat  he  did  do — the 
intent — the  unlawful  act  being  coexistent  with  the  thing 
done.^ 

§  156.  A  purpose  to  commit  a  specific  crime  and 
through  mistake,  misadventure  or  accident  a  different 
crime  is  committed  from  that  intended.  No  consid- 
eration, however  profound,  and  no  caution,,  however  de- 
liberate, can  compass  in  every  case  the  result  of  an  act. 
One  engaged  in  an  act  may  accomplish  it  free  from  acci- 
dent or  mistake,  yet  in  many  instances  the  object  in- 
tended fails  of  execution  and  results  in  the  commission 
of  a  crime  wholly  unlooked  for  and  not  in  the  contempla- 
tion of  the  perpetrator.  When  such  is  the  result  the  law 
holds  the  perpetrator  guilty  of  the  offense  actually  com- 
mitted, for  the  very  obvious  reason  that  who  engages  in 
an  unlawful  purpose  is  responsible  for  the  consequences 
flowing  from  a  corrupt  and  criminal  intent.^  If  he  in- 
tends to  commit  a  felony  and  by  mistake  or  misadventure 
or  accident  commits  a  misdemeanor,  he  is  guilty  of  the 
offense  committed.  If  he  intends  to  commit  a  misde- 
meanor and  by  mistake  or  accident  commits  a  felony,  he 
is  guilty  of  the  felony,  for  the  law  looks  to  the  conse- 
quences of  the  unlawful  intent.  The  intent  being  to  do  a 
wrong  the  law  visits  upon  the  perpetrator  the  result  of 
his  unlawful  intent. 

§  157.  Accident  or  mistake  where  act  does  not  amount 
to  crime.    In  a  legal  sense  no  one  lias  the  right  to  engage 

2— See  following  cases:    Wood  v.  State  v.  Luff,  24  Del.  152,  74  Atl. 

State,  34  Ark.  341,  36  Am.  Kep.  13;  1079;  State  v.  Hoot,  120  Iowa  238, 

Booher   v.   State,   156   Ind.    435,   60  94  Nev.  564,  9  A.  S.  R.  352;   Peo- 

N.  E.  156,  54  L.  R.  A.  391;  State  pie  v.  Sweney,  55  Mich.  586,  22  N. 

V.  Rumble,  81  Kan.  16,  105  Pac.  1,  W.  50. 

25  L.   R.   A.    (N.   S.)   276;   Latimer  3— Spies   v.   Pooplo,   122   111.    1,  3 

V.    State,    55    Nev.    609,    76    N.    W.  Am.  St.  320,  and  authorities;  Hark 

207,  70  A.  S.  R.  403;  Sforchman  v.  v.   State,   78   Ala.   474,   56   A.   S.  R. 

State,   r.2   Ark.   .I.^^,   36   S.   W.  940;  4.1;    State    v.    Evnn.s,    15    Del.    477, 


Criminal  Intent  135 

in  an  unlawful  transaction  and  if  he  engages  in  an  act 
which  amounts  to  a  civil  trespass,  and  by  accident  or 
mistake  commits  a  crime,  he  is  guilty  of  the  crime  com- 
mitted, for  the  law  does  not  draw  nice  distinctions  in  the 
degree  of  illegality  included  in  the  intent.  The  wrong- 
ful intent  and  the  act  compose  the  sum  total  of  the  of- 
fense. The  law  inquires  whether  the  intent  was  corrupt, 
and  if  it  was  then  the  guilt  follows  as  the  logical  result. 
The  mala  fides  is  the  element  the  law  looks  to,  and  if  the 
act  is  predicated  upon  such  motive,  then  the  act  becomes 
criminal.  The  wrong  intended  must  be  a  legal  wrong.  A 
mere  moral  wrong  is  not  noticed  by  the  law.  It  would 
be  highly  reprehensible  and  very  immoral  for  one  to  use 
vulgar  and  indecent  language  or  curse  and  swear  in  the 
privacy  of  his  own  family,  yet  such  conduct  is  not  crim- 
inal, unless  indulged  in  a  public  place.  As  long  as  the 
immorality  affects  the  individual  the  law  takes  no  notice, 
but  when  the  immoral  example  is  such  as  to  affect  the 
community,  then  the  law  punishes  it  as  a  crime.* 

§  158.  The  criminality  or  noncriminality  of  an  evil  in- 
tent is  dependent  upon  the  consequent  act.  If  one  with 
the  evil  and  wicked  intent — we  mean  by  this  the  legal 
intent  to  commit  an  offense — by  mistake  or  accident  does 
an  act  that  results  in  no  harm,  although  proceeding  from 
such  intent,  is  clearly  not  subject  to  the  law's  chastise- 
ment. The  law  takes  no  notice  of  the  wicked  motives  or 
the  evil  disposition  of  the  mind,  unless  they  are  a  basis 
for  a  wrongful  act.  If  one  having  a  legal  intent  to  com- 
mit an  offense,  makes  an  attempt  to  commit  it  and  is  pre- 
vented from  doing  that  particular  thing,  and  by  mistake 
or  accident  commits  an  act  which  results  in  no  harm, 
yet  upon  principle  he  would  be  guilty  of  the  attempted 
crime,  notwithstanding  no  evil  or  harm  resulted  from  the 

41    Atl.    136;    State    v.    Gilnion,    69       504,  52  A.  S.  E.  496;  State  v.  Kenf- 
Me.    163,   31    Am.    Eep.    257;    Com.       sow,  111  Mo.  589,  30  S.  W.  359. 
V.  Murphey,  165  Mass.  66,  43  N.  E.  4— See  State  v.  Ehul,  8  Iowa  447. 


136  Criminal  Law 

act.  The  governing  principle  in  attempted  crime  is  that 
the  intent  must  exist  to  do  the  particular  thing,  but  by 
prevention  the  offense  is  not  in  fact  completed  and  in 
many  instances  is  not  even  partially  completed.  Any  act 
coupled  with  the  intent  which  falls  short  of  the  com- 
pleted crime  is  the  punishable  offense.  Though  no  harm 
or  injury  results,  yet  the  law  regards  such  intent  and  ac- 
companying acts  reprehensible  and  deserving  punish- 
ment.^ 

§  159.  The  rule  where  the  intent  is  to  commit  a  specific 
crime.  The  common  rule  is  that  one  having  the  siDecific 
intent  to  commit  an  offense,  but  accidentally  commits  a 
different  one,  he  is  yet  nevertheless  gTiilty  of  the  latter. 
At  common  law  there  seems  to  have  been  no  exception  to 
this  general  rule.  Even  in  the  case  of  murder,  w^liere  A, 
intending  to  kill  B,  accidentally  kills  C,  the  killing  of  C 
is  murder,  as  it  would  have  been  if  B  had  been  killed.^ 
But  this  rule  of  the  common  law  is  not  the  rule  in  those 
states  w^here  murder  is  divided  into  degrees.  Murder 
upon  express  malice  generally  being  of  the  first  degree, 
and  upon  implied  malice  of  the  second  degree.  In  Texas 
and  in  other  states  where  the  statutes  are  substantially 
the  same  express  malice  or  specific  intent  to  kill  being 
murder  in  the  first  degree,  the  accidental  killing  of  an- 
other than  the  person  intended  is  murder  in  the  second 
degree  only.''^ 

5— Infra    chapter,    "Attempts."  3S4;   State  v.  Cooper,  13  N.  J.  L. 

Mere   intent  not  punishable;    State  361,  25  Am.  Dec.  490. 

V.  Asher,  50  Ark.  427,  8  S.  W.  177;  7 — Where,  however,  a  specific  in- 

Chandler  v.  State,  141  Ind.  106,  39  tent    is    necessary    to    constitute    an 

N.   E.   444;    People   v.   McCann,   16  ofTeiise  a   crime  committed   througli 

N.  Y.  58,  69  Am.  Dec.   642;   Lcem-  mistake   in   attempting  it,   does   not 

ing  V.  Com.    (Ky.)   117  S.  W.  253;  partake  of  the  special  intent.. 

Ex   parte    Smith,    135    Mo.    223,    36  Angell    v.    State,    36    Tex.    542; 

S.  W.  628,  58  A.  R.  S.  576.  Wills  v.  State,  74  Ala.  21 ;  Galliher 

6— State  V.  Evans,  15  Del.  477,  41  v.  Com.,  2  Dan.  (Ky.)  163;  State  v. 

Atl.   136;    State  v.   Ilenson,  81   Mo.  Ilenson,   81    Mo.   384;   State  v.   Gil- 


Criminal  Intent  137 

§  160.  Malignity  of  the  intent  is  measured  by  the  crime. 
As  remarked  in  another  connection,  the  common  law 
divided  criminal  offenses  into  two  classes:  Mala  in  se, 
or  such  as  are  inately  wrong,  and  mala  prohibita,  or  such 
as  are  prohibited.  AVhere  one  engaged  in  or  attempting 
to  commit  a  crime  mala  in  se  and  by  accident  commits 
another  than  the  one  intended,  the  accident  does  not 
relieve  the  guilt.  Under  the  latter  class  of  cases  the  rule 
does  not  appear  so  evident.  A  distinction  is  discoverable 
in  particular  instances.  Upon  principle  there  is  no  reason 
for  a  distinction — there  is  no  real  difference.  There 
appears  to  be  a  distinction  in  crimes  containing  degrees. 
At  least  in  the  crime  of  accidental  homicide  the  common 
law  convicts  of  murder  or  manslaughter,  just  as  the 
original  wrongful  purpose  is  to  commit  a  murder.  Or, 
stated  in  a  more  succinct  form,  one  with  the  intent  to 
commit  a  misdemeanor,  mala  in  se,  or  felony,  by  acci- 
dent committed  a  homicide,  the  intent  partakes  of  suffi- 
cient malicious  intensity  to  warrant  the  inference  of 
malice,  and  the  killing  is  regarded  as  murder.  But  where 
the  intent  is  to  commit  a  crime  created  by  statute  and 
which  contains,  intrinsically,  no  element  of  wrong,  the 
accidental  killing  is  manslaughter,  the  original  intent  not 
being  regarded  as  possessing  the  requisite  malignity  to 
form  a  basis  for  malice.^  An  illustration  is  found  in  the 
ancient  case  where  A,  with  the  purpose  of  stealing,  shoots 
at  the  fowls  of  B  and  by  accident  kills  C,  this,  by  the 
common  law,  was  murder,  but  where  A  did  not  intend 
to  steal  the  fowl,  but  to  kill  it,  the  killing  was  man- 
slaughter only. 

nion,  69  Me.  163,  31  Am.  Eep.  257,  State,  88  Ala.  23,  7  So.  103;   Peo- 

3  Am.  Cr.  Eep.  15;  Spanell  v.  State  pie   v.   Walpom,   15   Cal.   App.   732, 

(Tex.  App.)    203  S.  W.  257,  20  A.  115  Pae.  1088;  Wielson  v.  State,  69 

L.  R.  593;   Richards  v.  State   (Tex.  Ga.  224;   Crosby  v.  People,  137  HI. 

Cr.  App.  38),  30  S.  W.  805;  McCul-  325,  27  N.  E.  19;   State  v.  Walker, 

lough  V.  State,  62  Tex.  Cr.  App.  128,  37  La.  Ann.  560;  Com.  v.  Connelly, 

136  S.  W.  1056.  163  Mass.  539,  40  N.  E.  862;  State 

8— Felton  v.  TJnited  States,  96  U.  v.    Lane    (Mo.    App.),    193    S.    W. 

S.   699,   24  L.  ed.   875;    Newton  v.  948;  State  v.  Heaton,  77  N.  C.  505. 


138  Criminal,  Laav 

§  161.  Doctrine  of  the  preceding"  section  further  dis- 
cussed. The  doctrines  of  the  preceding  section  have  no 
application  to  crimes  which  require  a  specific  intent. 
"Wlien  such  is  the  case  the  intent  in  the  one  cannot  be 
transferred  and  become  the  intent  in  the  other.  This 
principle  is  illustrated  in  the  case  where  the  prisoner  in 
confinement  set  fire  to  the  prison  door  for  the  purpose 
only  of  making  his  escape,  but  by  accident  burned  the 
prison.®  The  court  held  that  his  intent  being  to  make 
his  escape  and  not  to  burn  the  prison,  that  he  could  not 
be  guilty  of  arson.  So,  in  the  case  of  the  sailor  who, 
intending  to  steal  some  rum  stored  on  shipboard,  by  ac- 
cident set  it  on  fire  and  consumed  the  ship,  the  court  held 
that  he  was  not  guilty  of  the  arson  of  the  ship;  he  in- 
tended, it  is  true,  to  steal  the  rum,  but  he  did  not  intend 
to  commit  arson.  The  doctrine  of  these  cases  does  not 
appear  to  be  in  accord  with  the  doctrine  of  the  old  cases 
cited,  where  A,  intending  to  steal  B's  chickens,  shoots 
at  them  and  by  accident  kills  B,  whom  he  did  not  see 
and  who  he  had  no  reason  to  believe  would  be  struck. 
A  specific  intent  to  kill  is  as  essential  to  the  crime  of 
murder  as  a  specific  intent  to  burn  a  dwelling  house  in 
arson.  There  is  no  doubt  that  if  A,  intending  to  burn 
B's  house,  by  accident  bums  C's  instead,  A  is  guilty 
of  arson.  So  A,  intending  to  burn  B's  house,  and  the 
flames  are  communicated  from  B's  to  C's,  A  would  be 
guilty  of  arson  of  C  's  house. 

§  162.  Where  one  by  his  wrongful  act  causes  another 
to  injure  a  third  person.  AVliere  A  makes  an  assault 
upon  B,  unprovoked,  under  circumstances  of  such  serious 
nature  as  will  justify  B  in  resorting  to  a  deadly  weapon 
in  order  to  save  his  life  or  to  save  himself  from  the  in- 

9— state  V.   Mitchcl,   27   N.   C,   5  .'')1  ;   rcoi)lc  v.  Connors,  253  111.  2GG, 

Ircd.  350;  Barber  v.  State,  78  Ala.  97  N.  E.  643,  39  L.  R.  A.   (N.  S.) 

19;  Chrlsman  v.  State,  .54  Ark.  283,  Mi!  Ann.  Cas.  191.^  A.  196;  RcaKan 

1.5  S.  W.  889,  26  Am.   St.   Rep.   4;  v.   State,   28   Tex.    App.    227,   12   S. 

People  V.   Mooncy,  127  Cal.  339,  59  W.  601,  19  A.  S.  R.  833. 
Pac.  761 ;  State  v.  Snow,  19  Del.  257, 


Criminal  Intent  139 

fliction  of  serious  bodily  injury,  and  by  a  blow  or  a  shot 
intended  for  A,  but  which  flies  its  way  and  kills  C,  an 
innocent  person  standing  by,  and  he  dies  from  the  wound 
within  a  year  and  a  day,  there  is  no  sound  reason  in 
morals  or  in  law  why  A  should  not  be  held  guilty  of  some 
degree  of  culpable  homicide.  This  principle  has  been 
urged  before  the  courts  in  two  adjudicated  cases.  The 
doctrine  contended  for  here  was  denied  in  these  cases. 
The  first,  the  Commonwealth  v.  Campbell,  tried  in  Boston 
in  1863  and  reported  in  83  Am.  Dec.  705,  the  defendant 
was  one  of  a  party  of  rioters  in  the  city  of  Boston,  who 
were  resisted  by  the  stationed  soldiery,  and  during  the 
disturbance  an  innocent  party  was  killed.  The  defendant 
being  convicted  in  the  lower  court  of  manslaughter,  the 
question  on  appeal  was  whether  the  defendant  could  be 
held  responsible  if  deceased  had  been  killed  by  the  sol- 
diers. The  court  held  that  he  could  not.  In  the  second 
case  A  and  B,  brothers,  were  attendants  at  a  fair  in  a 
country  town  and  became  boisterous  and  noisy,  where- 
upon C,  the  city  marshal,  sought  to  quiet  them  and  thus 
brought  on  a  difficulty  and  A  and  B  made  an  attack  upon 
C  with  their  fists,  C  drew  his  pistol,  intending  to  shoot 
them,  but  by  accident  the  shot  took  eifect  in  an  innocent 
bystander.  A  and  B  being  found  guilty  of  manslaughter 
in  the  lower  court,  and  the  question  upon  appeal  being 
whether  A  and  B  had  been  properly  convicted,  the  court 
held  that  since  there  was  no  understanding,  agreement 
or  common  purpose  between  A,  B  and  C,  that  A  and  B 
could  not  be  guilty  of  any  act  of  C;  that  the  act  of  C 
was  not  authorized  by  them  and  was  not  intended  by 
them,  and  hence  there  was  no  intent  to  kill  such  by- 
stander. The  court  further  held  that  even  if  the  attack 
of  A  and  B  had  been  of  such  a  nature  as  to  justify  C  in 
resorting  to  a  deadly  weapon,  that  they  could  not,  upon 
any  well  defined  principle  of  law,  be  held  guilty. ^<*  There 
are  many  reasons  which  would  overrule  the  doctrine  of 

10— Corn    V.    Campbell,    7    Allen 
541,  83  Am.  Dec.  705. 


140  Criminal  Law 

these  cases.  There  are  many  considerations  founded  upon 
legal  principles  which  would  justly  inflict  punishment 
upon  the  party  who  is  the  cause  or,  in  other  words, 
who  creates  the  necessity  for  the  misdirected  shot.  All 
authorities  agree  that  if  A  puts  in  motion  a  force  which 
compels  B  to  act  and  by  reason  of  his  action  C  is  killed,  A 
is  the  guilty  party.  Thus  A  pushes  B,  who  by  such  force 
strikes  C  and  C  falls  over  a  precipice  and  is  killed,  A  is 
guilty,  as  if  lie  had  pushed  C  directly.  The  law  holds  him 
as  intending  an  act  who  creates  the  necessity  for  it.  If  A 
attacks  B  and  he  is  forced  to  resort  to  violent  means 
and  by  accident  he  kills  C,  he  cannot  be  guilty  of  C's 
death,  because  he  had  a  legal  right  to  attempt  to  protect 
himself  from  the  unlawful  attack  of  A.  B  not  only  had 
the  right  to  attempt  to  protect  himself,  but  a  positive 
duty  to  do  so.  So,  also,  if  the  attack  is  made  upon  a 
stranger  for  the  purpose  of  committing  a  felony,  B  would, 
upon  principles  of  the  law,  have  the  right,  and  the  duty 
would  be  upon  him  to  use  violent  means  to  protect  such 
stranger  from  the  assault  of  A,  and  if  in  his  effort  to  pro- 
tect him  he  accidentally  kills  C,  he  will  not  be  guilty.  A 
person  who  knowingly  and  purposely  engages  in  an  un- 
lawful act  should  not  be  permitted  to  free  himself  from 
all  the  consequences  of  his  acts,  which  would  not  have 
occurred  except  for  his  own  action.  Still  another  consid- 
eration in  support  of  this  contention  is  that  everyone  who 
makes  a  violent  assault  upon  another  is  presumed  to 
know  that  the  party  assaulted  will  use  all  means  to  pro- 
tect himself. 

WHERE  THERE  ARE  RECKLESS  AND  WANTON  AND  CRUEL  ACTS 
EVIDENCING  A  GENERAL  EVIL  AND  MALICIOUS  INTENT, 
BUT  WITHOUT  THE  TURPOSE  TO  COMMIT  A  SPECIFIC  CRIME, 
OR  ANY  CRIME 

§  163.  By  what  is  the  intent  evidenced.  Tlic  intent  is 
evidenced  ])y  llic  circumstances  and  conditions  under 
whicli  ilio  act  is  commilted.     Tlius,  if  one  engaged  in  a 


Criminal  Intent  141 

lawful  act  executes  it  recklessly  and  wantonly,  without 
taking  due  regard,  he  is  responsible  for  any  injury  w^hicli 
comes  to  another,  both  criminally  and  civilly.  Persons 
are  not  only  required  to  follow  and  do  lawful  things, 
but  are  required  also  to  do  them  in  a  lawful  manner  and 
by  lawful  means.  Usually  damages  are  sought  in  such 
cases  as  a  redress  in  the  civil  tribunals,  but  where  an  un- 
lawful act  is  done  which  endangers  the  personal  safety 
of  others,  if  injury  occurs,  the  party  so  offending  is  re- 
sponsible for  the  result,  although  he  did  not  intend  any 
injury."  As  where  A  shoots  his  loaded  gun  into  a 
crowded  street  and  kills  one  standing  therein  he  is  as 
guilty  as  if  he  had  intended  it.  And  this  principle  is 
applicable  to  any  other  statement  of  fact  which  shows  a 
reckless  and  w^anton  disregard  for  the  rights  of  another ; 
the  presumption  is  that  he  intended  the  consequences  of 
his  act. 

AN    INNOCENT    PURPOSE,    BUT    WHERE    THE    ACT    IS    CHAR- 
ACTERIZED BY  CARELESSNESS  AND  NEGLIGENCE 

§  164.  Rule  where  there  is  required  a  guilty  knowledge. 
There  is  a  class  of  offenses  which  do  not  require  a  guilty 
intent  or  guilty  know^ledge  in  order  to  hold  the  perpe- 
trator responsible.  Such,  for  instance,  where  the  statute 
prohibits  the  doing  or  commands  the  doing  of  some  act. 
In  the  case  where  the  statute  prohibits  the  selling  of 
intoxicating  liquors  to  minors;  ^^  or  where  it  provides 
that  an  unmarried  girl  shall  not  be  taken  from  the  charge 
of  her  father  unless  she  be  of  certain  age.  The  want  of 
knowledge  that  such  person  was  wdthin  the  prohibitions 
of  the  statutes  will  not  exempt.  So,  again,  where  the 
statute  prohibits  unclean  and  adulterated  milk,  or  spoiled 
and  unwholesome  food,  the  want  of  knowledge  that  the 

11— Dory  V.  People,  10  N.  Y.  120;  136;    State   v.   Cooper,   13   N.   J.   L. 

Lee  V.   State,   1   Cold.    (Tenn.)    62;  361,  25  Am.  Dec.  490;  United  States 

Galliher  v.  Com.  2  Dev.   (Ky.)   163;  v.  Freeman,  -i  Mason  C.  C.  505. 
State  V.  Evans,  15  Del.  477,  41  Atl.  12— Com.  v.  Emmons,  98  Mass.  6. 


142  Criminal  Law 

same  was  adulterated  or  unwholesome  w^ill  not  excuse  the 
seller.  The  law  throws  the  obligation  upon  the  parties 
coming  within  the  prohibited  act  the  double  duty  of 
having  an  honest  purpose  and  the  knowledge  that  his  act 
is  not  a  violation  of  the  law.^^  And  that,  too,  when  he 
does  not  intend  to  violate  the  law. 

§  165.  Rule  where  one  is  in  the  pursuit  of  a  peaceable 
and  lawful  business.  The  law  requires  all  persons,  when 
following  a  peaceable  and  lawful  pursuit,  to  act  with  due 
care  and  caution.  And  where  the  circumstances  and  the 
nature  of  the  act,  taken  together  with  the  consequent  re- 
sults, produce  an  injury  to  another  he  is  presumed  to 
have  intended  that  result  or  else  he  would  have  acted 
differently.^*  So  where  dangerous  trades  or  occupations 
are  operated  a  higher  degree  of  care  is  required  than  in 
ordinary  pursuits.  And  where  the  want  of  care,  or  even 
the  want  of  proper  skill  in  the  conduct  of  such  occupa- 
tions, will,  according  to  the  circumstances,  and  the  re- 
sults foUow^ing,  subject  such  persons  to  criminal  prosecu- 
tions, the  intent  to  injury  is  inferred  from  the  manner  of 
performing  such  duties.  One  who  undertakes  to  operate 
a  machine  or  other  dangerous  thing,  requiring  special 
knowledge  or  skill,  is  bound  to  be  possessed  of  such 

13— Com.  V.  Farren,  9  Allen  489;  Am.   Eep.   452;    State  v.  McBrayer, 

Eex  V.   Prince,  L.  E.  2,  C.  C.   154;  98  N.  C.  619,  2  S.  E.  755. 
Com.     V.     White,     11     Allen     264 ;  14 — For  a  full  citation  of  authori- 

State  V.  Smith,  10  E.  I.  250;  Ulricli  ties,  see  note  to  Johnson  v.  State  of 

V.  Com.,   6  Bush  4,  400;    Burns  v.  Ohio,  61  L.  E.  A.,  page  277;  State 

State,    19    Conn.    398;    Beekam    v.  v.  Justus,  11  Ore.  178,  50  Am.  Eep. 

Nache,  56  Mo.  546;  Com.  v.  Mixer,  470,  8  Pac.  337;  State  v.  Vance,  17 

207    Mass.    141,    93    N.    E.    249,    31  Ta.  138;  White  v.  State,  84  Ala.  421, 

L.  E.  A.   (N.  S.)   467,  20  Ann.  Cas.  4  So.  598;   Fitzperahl  v.  State,  112 

1152    and    note.      Armour    Packing  Ahi.  34,  20  So.  960;  Tliomas  v.  Peo- 

("o.   V.   United    States,    153    Fed.    82  pie,  2  Colo.  App.  513,  31  Pac.  349,  U. 

('.  C.  A.   136,  14  L.  E.   A.    (N.  S.)  S.  v.  Knowles   (4  Sawy.),  517  Fed. 

400,     Same,  209  U.  S.  56,  52  L.  ed.  Cas.  No.   15540;    Territory  v.   Man- 

681;   State  v.   Simmons,   143  N.   C.  ton,    8    Mont.    95,    19    Pacific    387; 

613,  56  8.  E.  701;   People  v.  West,  Morris  v.   State,  35  Tex.   App.  313, 

100   N.    Y.    293,    12    N.   E.   610,    60  33  S.  W.  539. 


Criminal  Intent  143 

knowledge,  and  to  exercise  such  skill,  and  if  for  the 
want  of  either  another  is  injured  he  is  in  some  degree 
criminally  culpable,  according  to  the  degree  of  his  negli- 
gence. Thus,  engineers  in  operating  a  railway  train, 
steamboats,  ships  and  other  kinds  of  the  complicated 
machineiy  of  modern  times,  are  held  to  highest  degree 
of  care  and  skill  in  operating  such  things,  and  if  death 
result  to  another  as  the  result  of  want  of  care  and  caution 
it  is  manslaughter,  according  to  the  doctrine  of  the  com- 
mon law. 

§  166.  Malice,  what  constitutes,  etc.  We  have  seen 
that  an  intent  is  the  essential  ingredient  of  crime.  In 
some  instances  it  is  necessary  that  the  intent  be  to  per- 
petrate specifically  particular  crimes,  and  in  others  an 
intent  to  commit  no  particular  crime,  or  no  crime  at  all; 
as  where  the  crime  is  the  result  of  negligence  or  the 
omission  to  perform  a  duty.  In  others  the  doing  of  cer- 
tain acts,  even  if  done  with  the  express  intent  not  to 
commit  a  crime,  yet  it  becomes  a  crime  because  the  act  is 
prohibited.  Our  attention  in  this  connection  is  directed 
now  to  the  intent  in  four  classes  of  offenses,  the  chief 
and  moving  element  of  which  is  malice.  This  term  ex- 
presses a  kind  of  intent  which  is  not  a  characteristic  of 
other  crimes;  we  refer  to  the  crimes  of  murder,  arson, 
malicious  mischief,  and  libel.  It  is  not  contended  that  the 
degree  of  evil  intent  in  each  of  the  crimes  is  of  the  same 
intensity.'^® 

§  167.  Murder.  Defined  and  explained  as  to  elements 
of  malice.  The  killing  of  a  human  being  with  malice 
aforethought,  either  express  or  implied,  constitutes  mur- 
der.^^  Express  malice  is  evidenced  by  former  grudges, 
lying  in  wait,  antecedent  menaces,  and  implied  malice  is 

15— Halsted  v.   State,   1   Criminal       Bradford,    9    Mete    268;     Com.    v. 
Mag.  341;   12  V.  2  (N.  J.  L.)   552;        Sheilds,  1  Mass.  228. 
Rider  v.  Wood,  2  East  338;  Com.  v.  16— Lewis  v.  State,  72  Ga.  164,  53 


144  Ckiminal  Law 

evidenced  by  the  means  or  by  tlie  manner  in  which  the 
homicide  is  committed.  At  the  common  law  this  distinc- 
tion was  drawn  between  malice,  express  and  implied,  but 
the  punishment  was  the  same.  Under  most  of  the  stat- 
utes of  the  American  states,  the  punishment  for  murder 
committed  with  implied  malice  is  of  less  severity  than 
for  murder  upon  express  malice.  The  term  as  used  and 
applied  to  homicide  indicates  the  highest  degree  of  wick- 
edness, hatred  and  ill-will  towards  the  person  killed, 
because  the  intent  embodies  the  destruction  of  human 
life." 

§  168.  Common  law  rule  as  to  crime  of  murder  in  per- 
petrating rape,  etc.  At  common  law  any  homicide  com- 
mitted while  attempting  or  in  the  perpetration  of  any 
felony,  or  any  crime  malum  in  se,  was  murder.^^ 
Many  of  our  statutes  provide  that  homicide  committed 
while  attempting  to  commit  the  felonies,  rape,  robbery, 
burglaiy  and  arson,  shall  be  murder  in  the  first  degree; 
hence  the  assumption  is  that  the  homicide  is  committed 
upon  implied  malice. -^^  The  inference  is  that  one  at- 
tempting or  intending  to  perpetrate  any  of  these  felonies 
is  actuated  by  sufficient  evil  purpose  to  cover  in  full 

Am.  Kep.   835;    State  v.   Jones,   79  17;   Adams  v.  State,  25  Ark.  405; 

Mo.  441;  Warren  v.  State,  4  Coldw.  Ex  parte  Moore,  30  Ind.  197;  Hard 

(Tenn.)    130;    Miller  v.   People,   30  v.  People,  25  Mich.  405. 

Mich.  16;  Ex  parte  Wray,  30  Miss.  18— State  v.  Partlon,  90  Mo.  608; 

673.                             ,  State   v.   Schoenwold,   31   Mo.   147; 

17— Lovett  V.  State,  30  Fla.  142,  State   v.    Anderson,    2    Overt.    6;    5 

11  So.  550,  17  L.  R.  A.  705.     See  Am.  Dee.  648. 

note    and    reasonable    doubt;    Long  19 — People  v.  Deacons,  109  N.  Y. 

V.  State,  127  Ga.  350,  56  S.  E.  444;  374,  16  N.  E.  676;  Kenedy  v.  State, 

State   V.   Dixon,  80   Kan.   650,    103  107  Ind.  144,  6  N.  E.  305;  State  v. 

Pac.  130;  Gonzales  v.  State,  30  Tex.  Shirley,   64  N.   C.   610;    Durham  v. 

App.  203,  16  S.  W.  973;  Powell  v.  State,  70  Ga.  264;  State  v.  Reynold, 

State,  23  Tex.  App.  247,  12  So.  1037;  11    Neb.    98;    Dunaway    v.    People, 

McVey   v.    State,    57    Neb.    471,    77  110  111.  333,  51  Am.  Rep.  686;  Mc- 

Nev.  p.   nil  ;   Jackson   v.  State,  81  Ghee  v.  State,  62  Miss.  772,  52  Am. 

Ala.  33;   Sylvester  v.  State,  7  Ala.  Rep.  209. 


Criminal  Intent  145 

legal  malice,  but  not  actual  malice  against  the  deceased. 
So  malice  may  consist  in  hatred,  ill-will,  grudge,  or  re- 
venge toward  the  deceased,  specifically,  or  it  may  con- 
sist in  the  act  of  the  perpetrator  independent  of  the  actual 
intent  to  do  the  deceased  harm.  For  instance,  sup- 
pose that  A  is  attempting  to  burglarize  the  dwelling  of 
the  deceased,  his  friend,  and  he  accidentally  kills  him, 
this  is  murder,  yet  he  had  no  ill-will  for  him.  It  is  to  be 
noted  in  this  connection  that,  while  the  killing  of  a 
human  being  in  the  perpetration  of  any  of  these  crimes 
is  deemed  to  be  upon  implied  malice,  yet  the  acts  are  of 
the  greatest  enormity,  and  the  law  visits  upon  the  vio- 
lator the  highest  punishment. 

§  169.  Same  rule  under  statute.  Another  rule  under 
some  of  our  statutes  is  that  if  A,  intending  a  crime — 
usually  a  felony,  but  sometimes  a  crime  merely  mala  in 
se — by  misfortune  or  accident  kills  another,  it  is  mur- 
der in  the  second  degree,  because  the  specific  intent  to 
kill  the  deceased  is  not  present  at  the  time  of  the  homi- 
cide. Hence  it  is  held  that  where  A,  with  a  specific  in- 
tent to  kill  B,  by  accident  kills  C,  against  whom  he  had 
no  ill-will,  is  guilty  of  murder  in  the  second  degree,  upon 
the  theory,  of  course,  that  the  consequence  of  the  act 
measures  the  intensity  of  the  intent.^"  The  difference 
between  this  and  the  common  law  rule  is  that  by  the  com- 
mon law  there  is  no  degree  in  the  punishment.  All 
culpable  homicide  was  either  murder  or  manslaughter, 
and  all  murder  was  punished  with  death.  The  common 
law  drew  no  distinctions  so  far  as  the  punishment  was 
concerned. 

20— Spanell   v.    State,    Tex.   App.  Faren,  25  Cal.  361;  Nye  v.  People, 

203,  S.  W.  357,  2  A.  L.  E.,  p.  593,  35  Mich.  16;  Bechtelheimer  v.  State, 

and  note,  and   authorities;    Thomas  54  Ind.  128;  Dukes  v.  State,  4  Fla. 

V.   State,  127  La.  576,   53   So.   868,  499;  Vol.  9  Eng.  &  Amer.  Ency.,  p. 

Am.  Cas.  1912  A,  105  and  note,  37  548  to  560,  full  discussion, 
L.   R.   A.    (N.    S.)    172;    People  v. 
C.  L.— 10 


14:6  Ckiminal  Ijaw 

§  170.  Malice  is  shown  by  the  manner  and  the  means, 
etc.  Malice,  again,  is  shown  by  the  means  and  the  man- 
ner by  which  a  homicide  is  committed.  Thus,  if  death 
is  produced  by  torture,  starving,  lying  in  wait,  poison- 
ing, or  by  the  use  of  a  deadly  weapon,  malice  is  pre- 
sumed from  the  means  of  producing  death.^^  If  death 
is  produced  by  reckless  and  wanton  cruelty,  as  where  an 
infant  is  whipped  with  an  instimment,  not  necessarily 
dangerous  within  itself,  or  being  such  an  instrument 
that  if  the  same  was  in  the  same  manner  heaped  upon  an 
adult,  could  not  produce  death,  yet,  administered  upon 
the  infant  in  such  a  manner  as  to  produce  its  death, 
would  be  murder,  although  the  death  of  the  child  was 
not  intended.  Malice  in  such  case  is  presumed  from  the 
manner  of  inflicting  the  injury.  The  above  illustration 
also  embodies  a  fundamental  principle  that  an  evil  in- 
tent or  ill-will  may  be  presumed  from  the  physical  con- 
dition of  the  person  upon  whom  the  injury  is  inflicted. 
Some  of  the  states  bj^  statute  cany  this  doctrine  so  far 
as  to  include  women  in  the  list  of  persons  upon  whom 
an  injury  is  inflicted  the  intent  being  presumed  to  be  of  a 
greater  intensity  than  when  like  injury  is  inflicted  upon 
an  adult  male.  Under  this  doctrine  in  the  Texas  law  an 
act  that  would  be  only  a  simple  assault  upon  an  adult 
male  becomes  an  aggravated  assault  when  inflicted  upon 
a  w^oman  or  child.  Also  many  of  the  states  by  statute, 
homicide  committed  by  starving,  torture,  lying  in  wait,  or 
by  poisoning  is  murder  in  the  first  degree.  Any  of  these 
different  manners  or  means  of  producing  death  shows  a 

21— Seam  v.  State,  4  So.    (Ala.)  State  v.  Hopkirk,  84  Mo.  278;  State 

52;  Williams  v.  State,  81  Ala.  1,  1  v.    Brown,    7   Ore.    18G;    Ncaling   v. 

So.   179;   Palmer  v.   State,  29   Ark.  Com.,  98  Pa.  St.  323 ;  State  v.  Lopez, 

248;  Dacey  v.  People,  116  111.  555,  15  Nev.  407;  People  v.  Deacons,  109 

6   N.    E.    165;    People    v.    Ilamblin,  N.  Y.  374,   16  N.   E.   676;   Bratton 

68   Cal.,  8  Pac.   687,   101;    Trvin   v.  v.   State,   10  Hump.    (Tenn.),    103; 

State,  19  Fla.  872;  State  v.Kerby,  26  Weaver  v.    State,   19   Tox.    Appciils 

Kans.  77;  Pom.  v.  Devlin,  12(5  Mass.  547. 
2.53;  State  v.   Iloyic,  l.'i    Minn.  132; 


Criminal  Intent  147 

premeditation  and  a  deliberation,  indicating  the  greatest 
ill-will  and  an  intent  of  the  grossest  evil.  Homicide  can- 
not bo  committed  by  these  means  without  the  accom- 
panying evil  will,  and  is  murder  upon  express  malice. 

Murder,  however,  produced  by  the  use  of  a  deadly 
weapon,  in  the  absence  of  circumstances  showing  pre- 
meditation and  deliberation,  is  not  murder  in  the  first 
degree.^^  Death,  however,  might  be  produced  by  this 
means  under  circumstances  of  aggravation  which  would 
l)ring  it  within  the  rule. 

There  is  no  uniformity  in  the  rule  in  the  various  states 
as  to  the  degree  where  the  murder  is  produced,  as  the 
(•(.nsequent  result  in  attempting  or  in  perpetrating  the 
crimes  of  rape,  burglary,  arson,  robbery  and  mayhem, 
but  all  authorities  appear  to  agree  that  murder  com- 
mitted in  these  cases  is  upon  implied  malice. 

§  171.  Consequences  of  reckless  amd  wanton  acts. 
Malice — this  legal  deduction  of  ill-will — is  shown,  where 
the  act  is  executed  in  a  reckless  and  wanton  manner. 
Thus,  where  one  discharges  his  pistol  in  a  crowded  street; 
or  as  instanced  in  the  books,  where  a  workman,  on  a 
building  abutting  on  a  public  street,  throws  a  stone  there- 
on without  first  informing  himself  that  if  there  are  many 
passersby,  and  without  giving  warning,  and  thereby  kill- 
ing one  passing.  Here  we  have  malice  that  is  not  directed 
to  any  particular  person,  but  a  kind  of  general  ill-will, 
toward  every  and  any  person  who  may  be  affected  by  the 
act.23 

22 — Brooks  v.  State,  90  Ind.  428 ;  is  referred  to  the  reports  of  the  sev- 

Miller  v.  State,  74  Ind.  1;  State  v.  eral   states,   where  the   matter  may 

Townsend,  66  la.  741,  24  N.  W.  535 ;  be  investigated ;    Sullivan  v.   State, 

State  V.  Lewis,  74  Mo.  222;  Daly  v.  102  Ala.  135,  15  So.  264,  48  A.  S.  E. 

People,  39   (Hun)    N.  Y.   182;  Me-  22.     See  the  case  of  Crow  v.  State, 

Cue  V.  Com.,  78  Pa.  St.  185;   Petty  55  Tex.  App.  200,  116  S.  W.  52,  21 

V.  State,  6  Baxt  (Tenn.)  610;  Scott  L.   E.    A.    (N.    S.)    497;    Garner   v. 

v.  State,  23  Tex.  App.  432;   Hogan  State,  28  Fla.  113,  9  So.  835,  29  A. 

V.   State,   36  Wis.   226;   for  further  S.  E.  232. 
citation  covering  the  text,  the  reader  23 — State  v.   Smith,   2   Stobh.  L. 


148  Cbiminal  Law 

AESON 

§  172.  Of  the  quality  of  the  malice  in  this  crime.  Burn- 
ing the  dwelling  house  of  another  nialieionsly  was  at  com- 
mon law  deemed  arson.  The  burning  must  be  with  the 
specific  intent  to  burn — but  not  always  so,^*  For  it  is 
pretty  clear  that  where  a  house  is  set  on  fire,  without  the 
intent  to  injure  the  owner,  it  is  not  arson;  as  in  the  case 
where  one  sets  a  house  afire  negligently.^^  If  a  person 
set  the  house  of  A  on  fire  and  the  fire  is  connnunicated  to 
that  of  C,  then  it  is  arson,  in  burning  the  house  of  C,  not- 
withstanding, no  intention  existed  in  fact  to  burn  C's 
house.  The  necessary  malice  or  intent  is  inferred  from 
the  setting  the  house  of  A.  "Where  A  intends  to  kill  B  and 
the  blow  by  misadventure  falls  upon  C,  the  malice  is  not 
actual,  but  the  legal  inference  is  drawn  from  the  act  and 
the  consequence.  Ill-will  or  hatred  or  any  kindred  emo- 
tion is  necessary  to  be  shown  to  exist  toward  the  owner 
of  the  building.  The  malice  spoken  of  in  the  definition 
consists  in  the  wilful  burning,  and  may  proceed  from  a 
heart  intent  upon  revenge,  hatred,  recklessness,  wilful- 
ness or  wantonness.  Upon  principle,  if  the  accused  was 
pursuing  an  unlawful  act,  and  as  the  probable  conse- 
quence produced  the  fire,  it  would  be  arson. 

MALICIOUS  MISCHIEF 

§  173.  The  ill-will  must  be  against  the  owner  of  the 
property.  In  this  offense  the  act  nuist  be  made  with 
malice — that  is  witli  the  intent  to  injure  the  owner.    A 

77,  47  Am.  Dec.  589;  Com.  v.  York,  Com.    v.    Bradford,    126    Mass.    42; 

9   Mote.    (Mass.)    93,   43    Am.   Dec.  State  v.  Babcock,  51  Vt.  570;  John- 

373,  and  cases  cited  in  note.     State  son  v.  State,  G5  Ind.  204;  Hudson  v. 

V.  Johnson,  1  Ircd.  354,  35  Am.  Dec.  State,  61  Ala.  333  ;  State  v.  Watson, 

742  and  cases  cited  in  note.  63  Mo.  128;  Com.  v.  (loldstion,  114 

24 — Com.   V.    Markc'ly,    131    Mass.  Mass.  272;  Jes.se  v.  State,  28  Miss. 

421,  2  East  P.  C.  1019;  3  Greenl.  17-  100;    State   v.    England,    78    N.    C. 

18;  3  Ins.  67;  4  Hlackstone  222.  552;  Brooks  v.  State,  51  Ga.  612. 

25— State  v.  Thorn,  81  N.  C.  555; 


Criminal  Intent  149 

mere  ill-will  or  hatred  against  the  property  of  the  owner 
is  not  sufficient.  This  offense  consists  in  the  injury  to 
personal  property,  and  is  most  usually  found  in  the  in- 
jury to  horses,  cattle,  and  the  like,  yet  it  is  not  to  be 
understood  that  malicious  mischief  may  not  be  predi- 
cated upon  the  injury  to  other  personal  property.  The 
malice  spoken  of  here  is  not  of  the  same  intensity  as 
that  degree  of  feeling  indicated  by  malice  in  the  case 
of  murder.  Circumstances  which  go  to  show  the  slightest 
feeling  of  ill-will  against  the  owner  of  the  property 
appear  to  be  sufficient.^^  The  statutes  of  the  Ameri- 
can States  usually  use  the  terms  ''maliciously  and  wil- 
fully" injure,  etc.,  the  property  of  another.  And  under 
the  statute  of  the  State  of  Arkansas,  it  has  been  held  by 
the  courts  of  that  state  that  ill-will  must  be  shown  to 
have  existed  against  the  owner  of  the  property .^''^ 

LIBEL 

§  174.  What  is  libel  per  se,  etc.  So  in  this  offense 
malice  must  be  shown.  It  is  the  gist  of  the  crime.^' 
Libelous  language  when  of  a  certain  nature,  as  laid  in 
the  books,  constitutes  malice,  per  se,  that  is  the  malice  is 
inferred  as  a  matter  of  law.  In  other  instances  the  malice 
must  be  proven.  This  malice  or  intent  is  of  two  classes, 
actual  and  implied.  Actual  malice  is  shown  when  a  wil- 
ful and  an  intentional  purpose  to  injure  is  gathered  from 
all  the  circumstances.  The  imputation  to  another  that  he 
has  been  guilty  of  crime  in  most  cases  is  regarded  as 

26— Wright  v.  State,  30  Ga.  326,  27— Chappell    v.    State,    35    Ark. 

76  Am.  Dec.  656 ;  State  v.  Waters,  6  345. 

Johns,  N.   C.  560;   Lessen  v.  State,  28 — Com.     v.     Bonner,     9     Mete. 

62  Ind.  58;  Dawson  v.  State,  52  Ind.  (Mass.)    410;   Moore  v.  Stephenson, 

478;   State  v.  Wanderford,  35  Fed.  27   Conn.   14;   Gatt  v.  Pulsifer,  122 

E.  282;   State  v.  Jackson,  12  Ired.  Mass.    551;    Eaot  v.   King,   7    Cow. 

34   (N.  C.)   329;   Com.  v.  Brooks,  9  613;   White  v.   Nichols,   3   How.   U. 

Gray  (Mass.)  299;  People  v.  Kane,  S.  286;   Stewart  v.  Lovel,  2  Stark, 

131  N.   Y.   Ill,   29   N.   E.   1015,   27  E.  93. 
A.  S.  R.  575. 


150  Criminal  Law 

malice  per  se;  that  is  proof  within  itself  that  malice 
exists.^^  Any  wrongful  and  wilful  imputation  to  another 
of  any  thing  that  will  hold  him  up  to  public  contempt 
or  hatred,  or  any  imputation  that  will  blacken  his  good 
name  is  malice  within  the  meaning  of  this  crime.  The 
truth  of  the  imputation  may  be  put  in  evidence  by  the 
accused,  as  a  defense  to  the  crime — and  it  follows  that 
if  the  statement  be  false  the  malice  is  proven,  whether 
the  intent  was  in  fact  to  injure,  for  the  effect  is  the  same 
upon  the  person  libeled.  So  the  malice  or  intent  in  this 
crime  may  be  positive  or  passive,  actuated  by  hatred, 
revenge  or  malignity,  or  it  may  be  from  mere  culpable 
negligence  or  want  of  due  regard  for  the  rights  of  another. 

§  175.  The  malice  in  the  foregoing  crime  as  different  in 
degree  only.  A  full  discussion  of  these  several  offenses 
will  be  found  in  another  part  of  this  work.  The  malice — 
the  intent  in  these  crimes  do  not  differ  so  much  in  the 
nature,  as  the  degree  of  the  malignity.  In  the  crime  of 
murder  the  highest — the  extreme  limit  of  evil  is  reached 
for  it  can  be  reasonably  supposed  that  no  greater  evil  can 
be  entertained  against  another  than  this  malice  of  mur- 
der. The  evil  nature  of  malice  in  the  crimes  of  arson, 
libel,  and  malicious  mischief  are  only  different  in  the 
degree.  The  wrongful  and  wilful  doing  of  any  crime  will 
in  effect,  make  the  act  punishable,  if  the  same  is  commit- 
ted without  justification  or  excuse. 

PARENT  AND  CHILD 

§  176.  Of  the  duties  and  obligation  of  the  parent.  The 
duty  is  imposed  upon  the  i)arent  to  care  for  and  protect 
his  child,  to  furnish  him  with  a  home,  food  and  clothing, 
and    sucli    other   necessities    and    comforts,    reasonably 

29— Times  Pul).  Co.  v.  Carlilc,  9i 
Fed.  702;  Broughton  v.  McGrow,  39 
Fori.  692. 


Criminal  Intent  151 

« 

within  his  power.  For  this,  the  corresponding  duty  rests 
upon  the  child  to  obey  all  reasonable  and  just  demand  of 
the  parent.^''  These  mutual  and  relative  duties  and  obli- 
gations are  founded  in  the  law  of  love — that  mystic  moni- 
tor of  the  human  race.  Parent  and  child  are  bound  to- 
gether by  the  strongest  ties  of  affection,  and  the  utter 
helplessness  of  the  little  fellow,  upon  his  entrance  into 
society  demands  care,  safety  and  comfort.  He  is  cast 
upon  the  world  innocent,  powerless  physically  and  men- 
tally to  administer  to  his  needs  and  wants,  and  nature 
has  wisely  planted  in  the  heart  of  the  parent  such  a  high 
sense  of  his  obligations,  that  ordinarily,  no  occasion  arises 
for  the  state  to  interfere.  But  sometimes  the  parent  re- 
fuses to  respond  to  the  behests  of  his  higher  self,  and  then 
the  law  regards  it  as  a  crime. 

§  177.  Mutual  obligation  of  parent  and  child.     The 

duties  and  obligations  due  from  the  parent  to  the  child 
and  the  child  to  the  parent  are  many  and  various.  It  is 
not  our  purpose  at  this  time  to  cover  all  of  them,  but  our 
attention  is  directed  to  the  duties  and  obligations  due 
one  to  the  other,  the  failure  to  properly  observe  which 
the  criminal  law  undertakes  to  punish.  The  parent  may 
administer  chastisement  or  corporal  punishment  in  en- 
forcing all  reasonable  and  proper  obedience  to  his  rule 
and  authority.  The  punishment  must  in  all  cases  be 
moderate,  and  free  from  any  semblance  of  cruelty  or  ex- 
cess.^^  Where  this  right  to  correct  the  child  and  enforce 
obedience  extends  beyond  moderation,  the  parent  is  re- 
sponsible criminally.  An  assault  committed  under  such 
circumstances  is  punishable  as  a  crime.  It  is  the  duty 
of  the  child  to  submit  to  the  reasonable  and  moderate 
punishment  which  is  inflicted  for  the  primary  purpose 
of  instilling  into  the  young  mind  the  necessity  of  restraint 

30— Kent's    Com.    203;    1    Black-       Dean  v.  State,  89  Ala.  46,  8  So.  38; 
stone  452.  State  v.  Bitman,  13  la.  485. 

31— State  V.  Jones,  95  N.  C.  588 ; 


152  Criminal  Law 

and  to  prepare  liim  for  his  duties  of  good  citizenship, 
for  the  proper  culture  of  mind  and  moral  life.  The 
chastisement  must  be  regulated  by  that  of  sound  discre- 
tion, and  must  not  seriously  endanger  life  or  limb,  or 
health,  or  disfigure  or  cause  any  permanent  injury.  What 
would  in  any  given  case  constitute  excessive  punishment, 
depends  upon  the  facts  and  circumstances.  The  mental 
and  physical  condition  of  the  child,  the  age  and  the  ca- 
pacity. Thus  punishment  inflicted  upon  a  full  grown 
and  well  developed  boy  might  as  to  him  be  moderate 
under  the  circumstances  but  if  the  punishment  was  in- 
flicted upon  a  delicate  and  sickly  child  might  be  cruel  and 
inhuman.  The  law  does  not  say  that  the  punishment 
may  be  administered  in  this  or  that  way  or  in  this  or 
that  place  or  with  this  or  that  instrument,  but  imposes 
the  one  injunction,  and  that  is  that  the  punishment  must 
be  moderate.  This  is  a  question  of  fact  to  be  determined 
under  the  circumstances.^^ 

§  178.  Duties  the  strong  owe  to  the  weak.  Another 
principle  which  should  not  be  overlooked,  and  this  is 
dictated  by  common  justice,  the  strong  should  protect  the 
weak  and  helpless;  the  adult  should  protect  the  infant, 
senile  and  the  imbecile.  Hence  we  find  firmly  imbedded 
in  the  doctrine  of  the  criminal  law,  that  where  there  is 
a  duty  or  an  obligation  imposed,  a  wilful  failure  and 
refusal  to  perform  it  becomes  criminal,  and  is  indictable. 
Thus  the  duty  due  by  the  parent  to  the  child,  during  its 
infancy,  is  reversed,  when  the  parent  reaches  old  age  and 
unable  to  care  for  himself.  It  is  a  crime  to  expose  a  child 
to  tlio  cold,  to  excessive  heat  so  as  to  impair  his  health, 
or  to  produce  great  discomfort  or  torture.  An  old  case 
cited  by  tlie  books  is  wliero  the  niotlier  ])hi('es  her  infant 
in  a  bag  and  hangs  it  on  the  fence,  and  it  dies,  it  is  a 

32— Johnson    v.    State,    2    Hump       Mich.  90;  Lynuin  v.  Tcoplc,  65n,  iii 
(Tpnn.)  203;  Eng.  &  Amer.  Encly.,       — App.  687. 
Vol.    8,   4.'jn;    RliriiuHin    v.    roople,   5 


Criminal  Intent  153 

crime.  To  refuse  to  furnish  good  and  wholesome  food, 
or  to  withhold  food  so  as  to  injure  the  health  of  the  child 
is  a  crime.  This  is  all  true  for  the  reasons  that  the 
parent  owes  to  the  child  sustenance,  he  owes  him  the  duty 
of  the  greatest  care  at  that  time  of  life  when  he  is  unable 
to  sustain  himself.  All  persons  who  stand  in  the  place 
of  the  parent,  loco  parentis,  are  bound  by  the  same 
rule  as  the  natural  parent.  It  is  the  duty  to  aid  him  in  the 
development  of  his  mental  and  physical  being. 

§  179.  Parent  no  legal  right  to  enforce  obedience  to  an 
iUegal  act.  As  we  have  noted  in  the  preceding  pages 
the  parent  has  the  undoubted  right  to  correct  his  child 
and  that  the  child  is  bound  to  obey  the  commands  of  the 
parent,  and  that  the  parent  may  enforce  those  commands, 
yet  the  parent  has  no  right  to  enforce  obedience  to  the 
command  to  do  an  illegal  act.  If  the  act  is  illegal  he  can 
not  claim  immunity  from  punishment  for  the  chastise- 
ment of  his  child.  It  appears,  to  be  a  presumption  that  the 
chastisement  is  rightfully  administered,  and  the  burden  is 
upon  the  state  to  show  that  the  defendant  has  exceeded 
his  authority,  and  that  the  punishment  was  excessive.^*  It 
is  hardly  supposed  that  any  person  will  doubt  that  the 
father  has  the  authority  to  punish  the  child  for  disobedi- 
ence, where  he  exercises  a  reasonable  and  proper  discre- 
tion, as  to  the  manner  of  his  nurture,  whether  it  be  moral 
or  immoral  in  its  tendency.  There  is  no  legal  duty  (that 
is,  no  duty,  the  failure  to  perform  which  the  law  will 
undertake  to  punish),  to  instruct  the  child  in  any  par- 
ticular line  of  morality,  Christianity  or  education.^* 
''Education  is  not  necessary  to  the  sustenance  of  the 
child,  and  the  reasons  which  should,  and  in  some  states 

33 — Anderson    v.    State,    3    Head  and    in    some    states    do,    render    a 

(Tenn.)   455,  75  Am.  Dee.  774.  parent  legally  bound  to  support  his 

34 — Tiffanj^     on    Domestic    Eela-  child    do    not   apply.      There    is    no 

tions,  page  238:    "Education  is  not  legal  duty  upon  the  parent  to  edu- 

necessary  to  the  sustenance  of  the  cate  his  children." 
child,  and  the  reasons  which  should. 


154  Criminal  Law 

do  render  a  parent  legally  bound  to  support  his  child 
do  not  apply.  There  is  no  legal  duty  upon  the  parent 
to  educate  his  children." 

§  180.  The  punishment  must  be  administered  free  from 
malice.  It  appears  from  the  weight  of  reason  and  the 
authorities  that  if  the  punishment  was  wantonly  and  wil- 
fully inflicted  it  would  within  itself  show  immoderation; 
in  other  words  the  chastisement  must  proceed  from  a 
reasonable  cause.  Of  course  this  discretion  is  left  to  be 
exercised  by  the  parent,  such  as  a  reasonable  man  would 
ordinarily  act.^^ 

§  181.  The  parent  may  under  some  circumstances 
kill  to  protect  the  child.  The  law  makes  it  the  duty  of 
the  parent  to  protect  the  child,  and  to  this  end  he  may 
lawfully  kill  another  who  is  about  to  inflict  upon  his  child 
any  serious  bodily  injury,  affecting  his  life  or  limb. 
He  may  also  protect  him  from  any  less  degree  of  harm 
at  the  hands  of  another  by  espousing  his  cause,  and  by 
administering  to  such  person  such  force  as  is  necessary 
to  cause  such  person  to  desist.^^ 

HUSBAND  AND  WIFE 

§  182.  As  to  the  intent  of  the  wife  while  under  the 
coercion  of  husband.  The  relations  of  husband  and  wife 
have  been  discussed  at  some  length,  in  chapter  **  Persons 
Exempt  from  Crimes,"  but  we  deem  it  proper  for  our 
purpose  to  partially  refer  to  what  we  said  there.  The 
common  law  presumed,  and  it  appears  to  have  been  a 
rebuttable  presumption  that  the  wife  was  always  under 
tlie  coercion  of  the  husband,  and  any  crime  committed  by 
her  while  in  his  presence,  was  considered  to  bo  at  his 

35_Soo  tlie  following  case,  for  a  509,   7   All.   2()();    Noal   v.  «liile,  54 

Kcnt-ral    (li.scussion    of    the    subject.  Ga.  201  ;   Iliiiklo  v.  .State,  127   Ind. 

Boyd   V.   State,   88    Ala.    1C9,   7   So.  490,  2C  N.  E.  777;   Fletcher  v.  Peo- 

208;    Dean   v.   State,   89   Ala.   4G,   8  i)le,  52  Jll.  395. 

So.  38;  Patterson  v.  Nutter,  78  Me.  36—1  Bhickstonc  150. 


Cbiminal  Intent  155 

command,  and  was  his  act.'"'  To  the  particular  crimes  of 
murder,  treason  and  robbery  and  such  heinous  crimes  the 
presumption  did  not  apply,  but  for  felonies  generally, 
the  husband  was  alone  responsible.  Under  the  doctrine 
of  the  common  law  the  position  of  the  wife  towards  the 
husband  was  much  like  that  of  the  child  towards 
the  parent,  and  the  wife  was  due  obedience  to  the 
husband's  commands.  And  that  he  might  enforce  them 
the  law  permitted  him  to  chastise  the  wife.  The  courts  of 
the  American  States  look  with  disfavor  upon  this  rule  of 
the  common  law.  In  fact  it  is  believed  that  no  state  in 
the  United  States  could  for  an  instant  enforce  such  a 
rule  for  the  spirit  of  the  people  is  against  it.  To  lay 
the  hand  of  the  husband  in  anger  upon  the  person  of  the 
wife  would  clearly  be  an  assault  and  battery. 

§  183.  Wife's  defense.  It  was  no  defense  for  the  wife 
unless  she  could  show  that  the  husband  was  present  at 
the  time  of  the  committal  of  the  crime.  If  she  was  out  of 
his  presence  the  presumption  did  not  oj^erate  as  a  shield 
for  her.  Originally  under  the  common  law  the  wife  and 
the  husband  were  legally  one  person.  The  wife  could  not 
own  property,  except  to  a  very  limited  extent,  if  at  all; 
the  husband  was  required  to  furnish  clothing  and  food 
for  her.  The  husband  had  the  right  to  kill  another  at- 
tempting to  commit  a  serious  bodily  harm  upon  her.  At 
common  law  if  the  husband  caught  the  wife  in  the  act  of 
adultery,  and  he  killed  her  in  the  act  it  was  not  murder 
but  manslaughter.^^ 

TEACHERS  AND   INSTEUCTOES 

§  184.  In  chastising  the  pupil  the  teacher's  intent  to 
correct.     The  law  has  wisely  extended  the  right  to  the 

37— See    Vol.    15    of    the    Second  Eobert    v.    People,    19    Mich.    451; 

Anier.  and  Eng.  End.,  page  902,  and  State  v.  Bell,  29  la.  316;   State  v. 

authorities  there  cited.  Hunston,  29  S.  C.  10,  with  full  note. 

38— State  v.  Kelly,  74  Iowa  589; 


156  Ckiminal  Law 

teacher  to  iuflict  a  moderate  degree  of  corporal  punish- 
ment in  the  govenmient  of  their  professions.  The  ques- 
tion of  the  degree  of  the  punishment  is  to  be  gathered 
from  all  the  circumstances  of  the  particular  case,  taking 
into  consideration  the  age  and  the  sex,  and  the  physical 
and  mental  condition  of  the  pupil.  There  is  no  rule  of 
law  whereby  the  teacher  may  ascertain  before  hand  just 
how  far  he  may  go  in  the  administration  of  the  punish- 
ment, but  is  left  largely  to  his  sound  discretion,  being 
careful  not  to  step  beyond  the  limits  of  moderation.  The 
teacher  stands,  almost,  if  not  quite  in  the  position  of  the 
parent  and  to  some  extent  it  may  be  conceded  that  when 
a  child  is  placed  under  an  instructor  the  parents  and 
those  standing  in  the  place  of  the  parents,  yields  for  the 
time,  to  the  teacher,  as  his  agent,  the  power  to  chastise 
the  child  for  the  child  is  by  contract  placed  with  the 
teacher  who  assumes  his  nurture  for  the  time.  This  right 
of  the  teacher  to  inflict  moderate  punishment  grows  out 
of  the  necessity  of  the  position  in  which  the  child  is 
placed.  Success  in  any  line  of  business  depends  upon  the 
system  and  method  with  which  it  is  conducted.  School 
teaching  is  one  of  those  professions  which  require  strict- 
ness and  rigor  in  the  enforcement  of  its  methods  and 
rules  in  order  to  reach  the  highest  and  best  results. 
Hence  the  law  does  not  tolerate  the  prosecution  for  as- 
saults and  battery  unless  it  very  clearly  appears  that 
the  punishment  is  beyond  the  necessity  of  the  case.  A 
teacher  of  course  would  not  have  the  right  nor  could  he 
exempt  himself  from  responsibility  where  he  had  wan- 
tonly, and  Avithout  cause,  inflicted  punisliment.  And  this 
right  of  the  teacher  to  punish  for  the  infraction  of  the 
rules  is  not  taken  away  where  the  student  under  his 
charge  may  be  an  adult  person.^® 

39 — State  v.   Minzer,   45   Ta.   248,  she  sliould  not  be  chastised  as  other 

24   Am.   Hop.   709.       The   defendant  cliildrcn,    because    slie    was    twenty 

WUH   cliarned   witli   an   a.ssault   upon  years  of  age.     Tlic  court  said  that  a 

a  female  student,  who  claimed,  tliat  teacher  for  the  niaintciiance  of  his 


Criminal  Intent  157 

§  185.  Guardian  and  ward.  The  parents  are  the  nat- 
ural guardians  of  their  children.  It  often  occurs  that 
other  persons  are  appointed  by  the  chancery  court  as  the 
guardians  of  minor  children.  And  who  also  often,  but 
not  always  have  the  custody  of  the  persons  of  their 
ward — that  is  have  the  rearing,  culture  and  education 
and  the  like,  of  such  wards,  and  when  such  is  the  case, 
they  stand  in  loco  parentis  to  them.  Such  guardians 
have  the  same  rights,  and  governed  by  the  same  limita- 
tions as  the  parents.  It  is  the  duty  of  the  guardian  to 
clothe  and  feed  them  as  long  as  they  remain  under  his 
care.  It  is  his  duty  to  protect  them  to  the  same  extent 
as  the  parent  from  the  indiscretions  of  their  immature 
age,  and  to  instruct  them  in  the  lessons  of  good  citizen- 
ship and  to  encourage  their  mental  and  physical  de- 
velopment. Such  guardians  have  the  right  to  inflict  rea- 
sonable and  moderate  punishment  in  enforcing  obedience 
to  all  just  demands  and  requests.**^ 

authority,   and   the   enforcement   of  40 — The  same  rule  with  the  same 

discipline,  may  legally  inflict  mod-  limitation,  as  to  moderation,  applies 

erate     or     reasonable     chastisement  to   corporeal   punishment,   by   guar- 

upon  a  pupil,  "and  that  the  fact  dian  inflicted  upon  the  ward.    Stan- 

that   she   was   twenty-one   years    of  field  v.  State,  43   Texas   167.     See 

age    did    not    make    any    difi:erence.  also   Vol.   15   Amer.   &   Eng.   Encly. 

She  had  become  voluntarily  a  schol-  Law.  51,  and  authorities  cited, 
ar,  and  could  not  escape  the  duties 
and  obligations  of  one." 


CHAPTER  Vni 

PRINCIPALS  AND  ACCESSORIES 

§  186.  Principals      and      accessories  §  192.  Pi-incipal   actor   must   do   the 

distinguished.  thing  agreed  upon. 

§  187.  Principals    of    the    first    and  §  193.  Accomplice  defined. 

second   degree.  §  194.  Government     may     discharge 

§  188.  All    persons    engaged    in    the  accomplice  on  agreement  to 

commission  of  a  crime,  prin-  testify, 

cipals.  §  195.  What  must   be   done  by   the 

?!  189.  Difference  between  accessories  informer    to    establish    inl- 
and principals  in  the  second  munity. 
degree.  §  196.  Testimony  of  accomplice  must 

§  190.  Offenses  at  common-law  hav-  bo  corroborated. 

ing    no    accessories    before  §  197.  What     constitutes     accessory 

the  fact.  after  fact. 

§  191.  Accessories    before    the    fact, 
defined. 

§  186.  Principals   as   distinguished  from   accessories. 

Tlie  tenn  ''accessories"  is  confined  to  felonies,  no  such 
distinction  being  recognized  in  treasons  and  misde- 
meanors. Hence  every  felony  presupposes  a  principal 
actor  and  possible  accessories.  Every  crime  of  whatever 
class  consists  of  a  principal  actor  and  very  frequently 
more  than  one.  Every  one  whose  will  contributes  to  a 
commission  of  a  crime  is  responsible,  whether  he  be  the 
principal  perpetrator  or  not.  The  common  law  pun- 
ished all  parties  alike,  but  first  established  the  guilt  of 
the  principal.  If  the  principal  died,  escaped  or  for  any 
reason  was  not  convicted  the  accessory  was  not  guilty. 
One  whose  sole  will  produces  a  crime,  the  number,  kind, 
or  character  of  agencies  he  calls  to  his  aid  does  not  alter 
liis  connection  with  the  crime,  whether  he  is  present  or 
absent  at  the  time  of  the  commission  of  it.  If  the  agencies 
employed  conti-ibuto  no  culpability  of  will  to  the  act  the 

158 


Principals  and  Accessories  159 

instigator  is  alone  responsible.  The  common  law,  how- 
ever, recognized  a  distinction  between  the  principal 
actors  based  upon  the  part  each  performed. 

§  187.  Principals  of  the  first  and  second  degree.    Any 

actual  participation  in  the  commission  of  a  crime  is  a 
])rincipal  in  the  first  degree.  All  persons  who  at  the 
time  of  the  commission  of  a  crime,  aids,  abets  or  coun- 
sels it,  although  they  do  nothing  in  the  actual  accom- 
plishment of  it  are  principals  in  the  second  degree.  A 
constructive  presence  is  sufficient  to  make  one  principal 
in  the  second  degree.  The  perpetrator  who  actually  does 
the  act  is  the  principal  in  the  first  degree.^  One  who 
procures  an  innocent  agent  to  commit  a  crime  is  a  prin- 
cipal in  the  first  degree  although  not  present  himself 
at  the  time.  Thus  inciting  a  child  under  the  age  of 
seven  years  or  a  lunatic  to  commit  a  crime.  To  admin- 
ister poison  to  one  through  an  innocent  agent  having  no 
knowledge  that  it  is  poison  will  constitute  such  person 
a  principal  in  the  first  degree.^ 

§  188.  All  persons  engaged  in  the  commission  of  a 
crime  are  principals.  It  makes  no  difference,  whatever, 
who  inflicts  the  fatal  blow  or  who  does  the  actual  crime.^ 
In  conspiracies  all  participants  are  principals.  The  dis- 
tinction between  principals  in  the  first  and  second  degree 
have  become  obsolete  or  have  been  abolished  altogether 
in  most  of  the  states  of  the  union.  There  never  was  any 
sound  reason  it  appears  why  there  should  have  been  any 
distinction,  for  at  the  common  law  both  received  the 

1—1  Greenl  40;  Cotton  v.  State,  4  Park  Cr.  Cas.  234.     Kline  v.  Peo- 

32    Tex.    614;    Jackson   v.    State',   9  pie,  31  N.  Y.  229;  Kenedy  v.  Peo- 

Tcx.  App.  114;  Massey  v.  State,  27  pie,  40  111.  488. 

Tex.  App.  159.  3— Berry   v.    State,   4    Tex.    App. 

2— State  V.  Mathews,  20  Mo.  55;  492;    Templeton    v.    State,    5    Tex, 

Spies  V.  People,  122   111.   1;   Black-  App.  398;   Harmon  v.  State,  5  Tex. 

burn  V.  State,  23  Ohio  St.  146 ;  Berry  549 ;  Spies  v.  People,  122  111.  1,  and 

V.  State,  10  Ga.  518;   Com.  v.  Hill,  note  3  Am.  St.  Eep.  320,  12  N.  E. 

11  Mass.  136;  People  v.  McMurrey,  865,  17  N.  E.  898,  6  Am.  Cr.  E.  570. 


160  Criminal  Law 

same  pimisliment.  If  several  persons  agree  to  commit 
a  Clime  and  by  the  terms  of  their  agreement  each  is  to 
perform  a  part  in  connection  with  the  common  plan  they 
are  all  principals,  although  all  are  not  present  at  the 
time  of  the  actual  commission.*  Thus  in  pursuance  with 
an  agreement  between  B,  C  and  D,  whereby  B  is  to  set 
fire  to  a  dwelling  house,  and  C  to  stand  upon  a  street 
corner,  and  D  is  to  keep  watch  with  a  conveyance  in  some 
other  quarter  in  order  to  more  effectually  aid  B  in  mak- 
ing his  escape  from  the  scene  of  the  crime,  B  is  guilty 
of  arson  as  principal  in  the  first  degree  and  C  and  D  in 
the  second  degree.^ 

§  189.  Distinction  of  acoessories  from  principals  in 
second  degree.  The  distinction  between  accessories 
before  the  fact  and  principals  in  the  second  degree,  as  at 
common  law,  have  been  superseded  by  statute  in  almost 
all  the  states.  In  Illinois  all  parties  participating  in  the 
commission  of  a  crime  are  principals  whether  the  part 
performed  be  by  inciting,  advising  or  counseling  or  by 
actually  aiding  in  the  commission.®  In  the  code  of  Texas 
the  distinction  is  maintained,  but  is  known  under  the 
term  ''accomplice."  The  distinction  as  to  ''principals" 
in  the  first  and  second  degrees  have  been  abolished.''' 
The  term  "accessory"  presupposes  the  existence  of  a 
principal.    One  who  advises  or  counsels  the  commission 

4 — 3     Greenl    4G;     1     Hale    437;  in    the   coniniission    of   offense   they 

United    States    v.   Wilson,    1    Bowl.  are   principals.     If   they  agreed   to 

102.  commit  the  offense  together,  the  one 

5 — 1  Gallisons's  rep.  C24;  U.  S.  v.  who   actually   committed   the   crime, 

Gilbert,  2  Summers  19;  3  Greenl  40;  is    the    principal,    while    the    other, 

Com.  V.  Knapp,  9  Pick  496;  Eoscoe's  who  was  not  present  and  was  not  in 

Cr.  Ev.  167.  any  way  connected  with  its  commis- 

6 — Spies  V.  People,  122  111.   1,  3  sion,  or  by  keeping  watch  or  by  se- 

Am.  St.  Rpp.  320,  12  N.  E.  865,  17  curing  the  safety,  or  concealment  of 

N.    E.    898,    0    Am.    Cr.    Ecp.    570;  the   principal,   would   be   an   accom- 

Baxtcr    v.     People,     3     Glim.    368;  plicc. "    Bean  v.  State,  17  Tex.  App. 

Dcmp.scy  v.  People,  47  111.  323.  460;  Parker  v.  State,  24  Tex.  App. 

7— "If  the  parties  acted  together,  61 ;  West  v.  State,  28  Tex.  App.  241. 


Peincipals  and  Accessories  161 

of  an  offense  becomes  an  accessory  as  soon  as  it  is  com- 
mitted. If  he  aids  in  the  actual  fact  of  commission  he 
then  is  a  principal.*  At  common  law  the  advantage  de- 
rived from  the  distinction  between  principals  and  acces- 
sories was  mainly  in  the  time  of  trial.®  There  can  be  no 
accessories  before  the  fact  to  the  crime  of  manslaughter.*** 
Because  of  the  peculiar  nature  of  the  crime,  or  rather 
the  facts  and  acts  under  which  it  may  be  committed,  there 
can  not  ordinarily  be  accessories  before  the  fact.  The 
most  usual  fonn  of  manslaughter  is  where  homicide  is 
committed  in  the  heat  of  passion.  But  upon  the  prin- 
ciples of  the  common  law  where  one  advises,  incites  or 
counsels  the  commission  of  a  felony,  and  such  person  in 
pursuance  with  such  advice,  inciting  or  counseling,  in 
attempting  to  commit  the  crime  and  by  accident  kills 
another  person  there  is  no  good  reason  why  the  instigator 
of  the  crime  originally  would  be  guilty  of  the  same 
crime  as  that  of  the  actual  perpetrator,  murder  or  man- 
slaughter. 

§  190.  Offenses  at  common  law  that  has  no  accessories 
before  the  fact.  At  the  common  law  there  were  no  acces- 
sories before  the  fact  to  the  crime  of  high  treason.  This 
was  confined  to  high  treason  for  in  cases  of  petit  trea- 
son which  consisted  in  the  wife  murdering  the  husband, 
or  the  servant  murdering  the  master,  merged  into  the 
murder  and  became,  in  fact,  a  felony."  In  the  case  of 
petit  treason,  the  punishment  appears  not  to  have  been 
different  from  that  of  felony,  and  the  term  "petit  trea- 

8— Com.  V.  Glover,  III  Mass.  395 ;  Ogle   v.    State,    16   Tex.   App.   361 ; 

Lenard  v.  Poole,  114  N.  Y.  371,  11  Hogan  v.  State,  10  Ohio  St.  459. 

Am.  St.  Kep.  667;  Chapman  v.  State,  11 — 4  Blaekstone  Chapter  on  Trea- 

43  Tex.  App.  328,  65  Sh.   1098,  96  son.     There  was  this  distinction  be- 

Am.  St.  Eep.  874.  tween  the  punishment  for  high  and 

9 — 1  Hale  623 ;   State  v.  Cranch,  petit  treason,  that  in  the  former  the 

2  Bailey  66.  forfeiture  was  of  a  greater  extent 

10— Slip    V.    State,    11    Ind.    62;  than  in  the  latter. 
Cartwrite  v.  State,  16  Tex.  App.  493; 
C.  L.— 11 


162  Criminal  Law 

son"  was  one  of  opprobrium,  rather  than  differing  from 
felony  in  fact.  This  distinction  between  petit  treason 
and  felony  is  not  known  in  our  country.  At  the  common 
law  there  appears  not  to  have  been  accessories  after  the 
fact;  this  was  merged  into  the  crime  of  misprision  of 
treason.^^  So  also  at  common  law  there  were  no  acces- 
sories either  before  or  after  the  fact  in  misdemeanors.^* 
All  persons  participating  were  principals,  and  we  know 
of  no  statute  that  has  changed  the  common  law  in  this 
respect.  The  maxim  of  the  common  law,  quae  de  minimis 
non  curat  lex  seems  to  have  been  applied  as  a  reason 
why  there  should  not  be  accessories  to  this  grade  of 
offenses.  The  reason  why  there  should  not  be  accessories 
in  treasons  and  misdemeanors  are  assigned  upon  opposite 
grounds.  In  the  former  the  crime  is  of  such  grave  nature, 
it  is  assumed  that  all  should  be  equally  punished,  and 
the  latter,  all  should  be  equally  guilty  for  the  reason  that 
the  crime  is  so  trifling  and  insignificant  that  the  ends 
of  justice  will  be  subserved  by  punishing  all  alike.^* 

ACCESSOEIES  BEFORE  THE  FACT 

§  191.  Accessory  before  the  fact  defined.  xVn  accessory 
before  the  fact  is  where  one  before  the  commission  of  a 
felony  advises,  counsels  and  procures  another  to  commit 
it,  he  being  absent  at  the  time  of  the  perpetration  there- 
of.^^  If  the  defendant  is  in  such  a  position  as  to  render 
aid  at  the  time  of  the  commission  of  the  crime  to  the 
actual  peiTDctrator  he  is  a  principal  in  the  second  degree." 
Thus  standing  by  and  keeping  watch,  holding  a  horse 
at  a  point  agreed  upon  in  order  to  render  assistance  to 
the   perpetrator   to   escape    or   othenvise   protect   him, 

12 — 4  Blackstone  Chap  Treason.  pic,   122  111.  3,  Am.   St.  Rep.  320; 

13—4  Blackstone  35.  Rod  v.  State,  73  Am.  St.  Rep.  965; 

14 — People, V.   Blivcn,   112   N.   Y.  People    v.    Blivcn,    8    Am.   St.    Rep. 

79,  8  A.  S.  r!  701,  and  note.  (N.   Y.)    701,   112  N.   Y.  79,   19  N. 

15—1  Ilnlc  G15;  4  Blackstone  36.  E.   G38. 
16—1   Leach   515;    Spies  v.  Peo- 


Principals  and  Accessories  163 

makes  one  a  principal  in  the  second  degree.^''  The  con- 
trolling- fact  in  this  crime  is  that  of  advising,  counseling, 
procuring  or  commanding  another  to  commit  a  crime. 
One  may  be  guilty  of  accessoiy  before  the  fact,  notwith- 
standing he  does  not  know  at  the  time  of  the  advice, 
counseling  or  inciting,  or  does  not  know  at  the  time  of  the 
actual  committal  of  the  crime  who  it  is  that  is  to  do,  and 
who  actually  does  the  job."  Thus  if  A  procures  B  or 
incites,  or  advises  him  to  cause  some  third  person  to  com- 
mit a  crime,  A  is  responsible  whether  he  knows  who  com- 
mitted it  or  not.^^ 

§  192.  The  principal  actor  must  do  the  thing  agreed 
upon.  If  A  procures  B  to  commit  murder,  and  he  com- 
mits robbery  instead,  acting  upon  his  own  responsibility, 
A  will  not  be  guilty  of  advising,  inciting  and  counseling, 
the  crime  of  robbery  because  B  failed  to  follow  his  in- 
structions. But  if  A  procures  B  to  kill  C,  and  B  in  un- 
dertaking to  carry  out  the  instruction  of  A,  kills  D  whom 
he  takes  for  C,  A  will  be  accessory  to  D  's  murder.^''  So 
if  A  instructs  B  to  burn  the  dwelling  house  of  another, 
and  in  his  efforts  to  do  so,  unintentionally  kills  C  this  will 
also  make  A  accessoiy.  The  agent  is  required  to  carry 
out  the  instruction  of  his  principal,  and  if  he  purposely 
fails  to  do  so,  and  does  a  different  thing  from  that  agreed 

17— Lamb  v.  People,  196  111.  73-  and  the  other  charging  him  to  be  un- 

82;   McCaraey  v.  People,  83   N.  Y.  known,   it  is   sufficient  if   either   is 

408.  shown."     Spies  v.  People,   122  111. 

18— Spies  V.  People,  122  lU.  1,  3  1.  3  Am.  St.  320,  12  N.  E.  865,  17 

Am.  St.  Eep.  320,  122  lU.  1,  12  N.  N.  E.  898. 
E.  865,  17  N.  E.  898.  20— "A  hires  B,  to  shoot  C,  at  a 

19— Court    says:     "One    may   be  certain  hotel,  but  B  seeing  C  enter 

accessory  to   an   unknown  principal  another    hotel    on    the    same    night, 

in   the   perpetration    of    crime.      If  and   shoots  Mm  there,  A  is  guilty 

the  principal  felon  is  unknown,  the  of    aiding,    abetting    and    advising 

indictment    of    the    accessory    may  and  counseling  the  shooting  of  C." 

state  it  accordingly.     If  there  are  Spies  v.   People,   122  111.   1,  3  Am. 

two   counts   in    the   indictment,    one  St.   Eep.  320,  12  N.  E.  .865,   17.  N,  ■ 

charging  the  principal  to  be  known  E.  898. 


164  Criminal  Law 

upon  his  principal  is  not  guilty  or  responsible  for  his 
acts.  The  rule  is  well  settled  that  where  one  intending 
to  commit  a  crime  of  a  particular  nature  fails  to  commit 
specifically  it,  but  another,  he  will  be  guilty  of  intending 
the  reasonable  and  probable  consequences  growing  from 
his  unlawful  and  wicked  intent.''^ 

§  193.  An  accomplice  defined.  An  accomplice  is  one 
who  aids,  abets,  counsels  and  advises  another  to  the  com- 
mission of  a  crime — that  is  a  felony,  and  who  is  not  pres- 
ent at  the  time  of  the  commission  of  the  offense.  This 
corresponds  in  legal  parlance  to  the  common  law  acces- 
soiy  before  the  fact.  The  term  ' '  accomplice ' '  in  its  most 
comprehensive  sense  includes  all  particeps  criminis,  but 
in  its  technical  sense  under  the  statutes  means  only  an 
accessory  before  the  fact  as  defined  by  the  common  law.^^ 
A  person  convicted  of  larceny  is  not  an  accomplice  with 
another  charged  with  buying  and  receiving  the  stolen 
property,  knowing  it  to  have  been  stolen.^' 

§  194.  The  government  may  discharge  an  accomplice 
upon  agreement  to  testify.  The  prosecuting  power  of 
the  state  may  discharge  an  accomplice  upon  an  agree- 
ment by  him  to  testify  against  his  co-defendant.  This 
under  the  English  practice,  in  common  parlance,  is  tenned 
''turning  queen's  evidence"  or  ''king's  evidence;"  in 
our  country,  "tuniing  state's  evidence."  It  is  merely 
an  agreement  on  the  part  of  the  government  through  the 
department  of  justice,  or  the  prosecuting  officers  with 

21— Bower  v.  State,  24  Tex.  App.  12  Ohio  St.  146,  80  Am.  Dec.  340; 

542,  550,  5  Am.  St.  Rep.  901,  7  S.  Moody  v.   State,   6  Cold  299;    Wil- 

W,    247;    State    v.    Meyers,    19    la.  Hams  v.  State,  47  Ind.  568;  People 

517 ;  Cox  V.  State,  8  Tex.  App.  254 ;  v.    Woody,    45    Cal.    289;    Green    v. 

U.  S.  V.  Doyle,  6  Saw.  612;  Phillips  Slate,  13  Mo.  382. 

V.  State,  6  Tex.  App.  364;  U.  S.  v.  22— Roach  v.  State,  4  Tex.  App. 

Buttler,    1    Hughes    11;    Hanna    v.  46. 

People,    86    111.    243;     Stevens    v.  23— State   v.    Kuhlman,    152   Mo. 

State,  17  Tex.  App.  618;    Miller  v.  100,  75  Am.  St.  R«p.  438. 
State,  25  Wis.  384;  Brcese  v.  State, 


Principals  and  Accessories  165 

the  defendant  that  if  he  will  tell  the  truth  of  the  matter 
and  the  connection  he  and  his  co-defendants  had  with 
the  crime  charged  against  them,  that  the  case  against 
him  will  be  dismissed  from  the  docket  of  the  court. 
Sometimes  the  agreement  is  entered  into  before  indict- 
ment, and  indeed  the  most  usual  practice  is  to  fail  to 
indict  when  the  defendant  testifies  according  to  agree- 
ment. This  manner  of  obtaining  evidence  against  a 
co-defendant  is  justified  upon  the  theory  that  unless 
such  agreements  are  upheld  and  acquiesced  in  by  the 
courts,  in  many  cases  it  would  be  practically  impossible 
to  bring  the  guilty  offenders  to  justice.^* 

§  195.  What  must  be  done  by  the  informer  to  establish 
his  immunity.  As  a  general  rule,  in  order  that  the  de- 
fendant may  claim  his  immunity  from  punishment  or 
prosecution,  it  is  necessary  that  he  show  that  he  has  kept 
the  agreement  made  with  the  prosecuting  officer,  and  the 
same  was  approved  by  the  court.^^  At  the  common  law, 
and  even  in  this  country,  the  agreement  and  the  subse- 
quent testifying  by  the  defendant  in  accordance  with  it 
did  not,  as  a  matter  of  right  or  of  course,  entitle  the 
accomplice  to  be  discharged,  but  only  gave  him  an  equit- 
able claim  upon  the  executive  to  grant  a  pardon  after  his 
conviction.  The  court  in  a  Texas  case  declares  that  if 
the  state  can  make  and  has  the  legal  power  to  enter  into 
an  agreement  with  an  accomplice  for  his  immunity  from 
prosecution  upon  his  testifying  in  the  case  against  his 
co-defendant,  that  it  is  due,  in  order  to  maintain  the 
state 's  good  faith  and  dignity  of  sovereignty,  to  see  that 
the  contract  made  by  its  officer  is  complied  with.^^ 

24—1  Greenl,  Ev.  379,  380,  381;  Peter,  48  Cal  251;  People  v.  Bruzzo, 

1  Caiitty  Or.  Law,  604;  4  Bla.  330;  24  Cal.  41;  U.  S.  v.  Ford,  99  U.  S. 

Roscoe's  Cr.   Ev.   121-2;    Knapp  v.  594. 

Com.,  10  Pick.  478;  U.  S.  v.  Henry,  26— Cameran    v.    State,    32    Tex. 

4  Wash.  C.  C.  R.  428.  App.  180;   Bowden  v.  State,  1  Tex. 

25— State  v.  Graham,  41  N,  J.  L.  App.    189;     Holmes    v.     State,    20 

15,    32    Am.    Eep.    174;    People    v.  Tex.  App.  517. 


166 


Criminal  Law 


§  196.  The  testimony  of  an  accomplice  must  be  cor- 
roborated. It  is  a  general  rule  that  the  testimony  of  an 
accomiDlice  shall  be  corroborated  before  a  conviction  of 
his  partner  in  the  crime  may  be  had.  The  rule,  it  ap- 
pears, had  its  foundation  in  the  practices  of  the  courts 
and  the  custom  has  grown  into  a  positive  rule.^'  The 
early  j)ractices  of  the  courts  appear  to  have  been  to  admit 
the  evidence  upon  the  same  plane  with  other  evidence, 
and  whether  the  evidence  presented  a  sufficient  probative 
force  was  a  question  for  the  jury  only,  and  not  one  of 
law.  The  practice  usually  is,  for  the  court  to  instruct 
the  jury  that  if  the  testimony  of  the  accomplice  cannot 
be  corroborated,  then  they  cannot  convict  upon  such  evi- 
dence; that,  as  a  matter  of  law,  it  is  not  sufficient.  The 
extent  of  corroboration  is  a  matter  for  the  juiy.^®  It  is 
not  required  by  the  rule  above  that  all  the  testimony  of 
the  accomplice  be  corroborated.^* 


27 — Hoyle  v.  State,  the  court 
says:  "At  common  law  it  has  been 
repeatedly  held  that  conviction  on 
the  testimony  of  an  accomplice,  un- 
corroljorated,  is  legal.  Koscoe's  Cr. 
Ev.  6th  Ed.  121."— see  4  Tex.  App. 
244. 

28—1  Greenl.  Ev.  381;  Hoyle  v. 
State,  4  Tex.  App.  244;  Thomas  v. 
State,  4.3  Tex.  638;  Miller  v.  State, 
4  Tex.  App.  51;  Lopez  v.  State,  34 
Tex.  13.3;  Burton  v.  State,  21  Tex. 
348;  Roberts  v.  State,  44  Tex.  119. 

29 — People  v.  Cunzbol,  14  Pac. 
836;  State  v.  Roberts,  15  Ore.  187, 
13  Pac.  896;  Roach  v.  State,  4  Tex. 
App.  46;  Avery  v.  State,  10  Tex. 
App.  199;  Powel  v.  State  (Tex.)  3 
S.  W.  570;  Coffelt  v.  State,  19  Tex. 
App.  436.  The  court  says:  "A 
conviction  cannot  be  had  on  the  tes- 
timony of  an  accomplice  unless  cor- 
roborated by  other  evidence  tending 
to  connect  the  defendant  with  the 


offense  charged;  and  the  corrobora- 
tion is  not  sufficient  if  it  merely 
shows  "the  connuission  of  the  offense, 
nor  can  one  or  more  accomplices  cor- 
roborate each  other,  but  the  evi- 
dence must  come  from  other  sources. 
An  accomplice  in  the  sense  used  in 
the  foregoing  means  connected  with 
the  crime  committed,  either  as  a 
principal  or  otherwise." 

In  House  v.  State,  19  Tex.  App. 
227,  the  court  uses  the  following 
language:  "The  jury  are  further 
instructed  that  the  testimony  of  an 
accomplice  is  not  sufficient  to  cor- 
roborate tlie  testimony  of  another, 
but  in  order  to  warrant  a  convic- 
tion on  the  testimony  of  an  accom- 
plice, no  matter  how  many  there 
be  who  testify  in  the  case,  must  be 
c(irrol)Oratcd  by  other  evidence 
wliicli  the  jury  believe  to  be  true, 
tcixling  to  connect  the  defendant 
with   the  crime,  and   that  such  cor- 


Principals  and  Accessories  167 

accessoeies  after  the  fact 

§  197.  What  must  concur  to  constitute  an  accessory- 
after  the  fact.  Three  facts  must  concur  in  order  to  con- 
stitute an  accessory  after  the  fact:  1.  Felony  must  have 
been  committed.  2.  The  defendant  must  have  rendered 
aid  or  comfort  looking  to  the  escape,  concealment,  or  to 
otherwise  protection  of  the  principal  felon.  3,  It  must 
appear  that  the  defendant  knew  that  a  felony  had  been 
connnitted  at  the  time  he  rendered  such  aid  or  assistance. 
At  the  common  law  all  persons,  except  the  wife  of  the 
felon,  may  be  guilty  as  accessories  after  the  fact.^®  It 
is  absolutely  essential  that  the  defendant  should  have 
known  at  the  time  of  rendering  the  assistance  to  the 
principal  that  a  felony  had  been  committed.  It  is  not 
enough  to  show  that  after  rendition  of  the  aid  that  it 
came  to  the  knowledge  of  the  accused,  that  the  felony 
had  been  committed.^^  At  the  common  law  an  accessory 
after  the  fact  could  not  be  convicted  until  after  the  trial 
and  conviction  of  the  principal. 

roboration    is    not    suflQeient    if    it  husband  protect  the  wife,  the  father 

merely  shows  the  commission  of  the  the  son,  a  brother  his  brother,  they 

offense."  contract  the  guilt  and  are  liable  to 

30 — i  Bla.  39;  says  Chitty  in  Vol.  punishment    of    accessories    to    the 

1,  Cr.  Law:      "But   no  other  ties,  original   felony." 
however  near,  will  excuse;  for  if  the  31 — 1  Chitty  Cr.  Law,  264. 


CHAPTER  IX 


rORMEE  JEOPAEDY 


§  198.  This  is  a  law  of  universal 
conscience. 

§  199.  As  to  State  and  Federal  gov- 
ernments. 

§  200.  Constitutional   provisions. 

§  201.  State  and  Federal  gov^ern- 
ments  distinct. 

§  202.  As  to  the  administration  of 
military   laws. 

§  203.  Courts  of  concurrent  jurisdic- 
tion. 

§  204.  One  criminal  cannot  atone 
for  his  brother  in  crime. 

§  205.  All  participators  in  crime 
punished. 

§  206.  Jeopardy  is  applicable  to  of- 
fenses of  common  elements. 

§  207.  Different  crime  proceeding 
from  same  facts  and  acts. 

§  208.  Minor  offenses  included  in 
greater. 

§  209.  Same  continued. 

WHAT    CONSTITUTES     JEOPARDY 

§  210.  As  to  indictment. 

§  211.  Variance  between  indictment 

and  proof. 
§  212.  Court  of  the  indictment  must 

have  jurisdiction. 


§  213.  Different  counts. 

§  214.  New  trial  and  arrest  of  judg- 
ment. 

§  215.  Further  considered. 

§  216.  State  in  a  criminal  case  has 
no  right  to  appeal. 

§  217.  Two  offenses  committed  by 
the  same  act. 

§  218.  Larceny  from  different  per- 
sons at  the  same  time. 

§  219.  Passing  forged  paper,  etc. 

§  220.  Cardinal  doctrine  of  jeop- 
ardy, what  is. 

§  221.  Test  of  the  rule. 

§  222.  Arraignment. 

§  223.  Discharge  of  jury. 

§  224.  Failure  of  jury  to  agree. 

WAIVES   OF  RIGHTS 

§  225.  Wliat  is. 

§  226.  At  common  law. 

§  227.  In  American  States. 

§  228.  Eights  that  cannot  be  waived. 

§  229.  Implied    consent    to    waiver 

sufficient. 
§  230.  The   authority  of  counsel  to 

waive. 
§  231.  Summary. 
§  2;!2.  Nolli  Prosequi 


§  198.  This  is  a  law  of  universal  conscience.  The  rule 
of  law  thai  a  person  wlio  has  boon  coiivictod  or  acquitted 
of  a  criminal  charge  should  not  again  be  tried  by  a  court 
for  the  same  thing  appears  to  be  a  law  of  universal  con- 
.science,  dictated  by  common  justice  every  where.  Hence, 
altliongli  the  same  is  a  constitutional  ])rovision  witli  us, 

168 


Former  Jeopardy  169 

yet,  nevertheless,  there  is  no  reason  to  doubt  that  it  is 
so  firmly  imbedded  in  the  law  of  justice  that  it  finds  ap- 
proval wherever  the  common  law  is  enforced.^  Thus, 
founded  upon  these  principles,  a  defendant  charged  with 
an  international  crime,  such  as  piracy,  over  which  all 
nations  have  jurisdiction  to  try  and  punish,  the  convic- 
tion or  acquittal  by  one  nation  would  be  a  bar  to  a  sub- 
sequent trial  by  another.^ 

So  this  rule  is  extended  indefinitely  to  include  all  cases. 
The  principle  of  auter-foir  acquit  and  convict  are  founded 
upon  the  plainest  dictates  of  right. 

§  199.  As  to  the  state  and  federal  governments.    The 

rule  of  the  state  and  federal  courts  appear  to  be  pretty 
well  agreed,  where  the  act  is  made  penal  by  both  gov- 
ernments, the  conviction  or  acquittal  under  the  one  would 
not  be  a  bar  to  a  subsequent  trial  in  the  other,  but  there 
is  a  tendency  in  the  authorities,  in  the  direction  of  al- 
lowing the  bar,  especially  where  the  punishments  are  of 
the  same  degree.  This,  however,  lies  more  in  the  dis- 
cretion of  the  court  than  in  a  rule  of  law.  Where  the 
act  in  question  is  a  violation  of  both  a  state  and  a 
federal  law,  both  governments  have  jurisdiction.^  This 
rule  is  established  upon  the  theory  that  the  federal  and 
state  governments  are  distinct  and  independent  sov- 
ereignties. And  for  the  same  reason  the  same  act,  penal 
by  the  laws  of  different  states,  would  not  be  barred  by  a 
conviction  or  acquittal  in  another. 

§  200.  Constitutional  provisions.  ' '  No  person  shall  be 
twice  put  in  jeopardy  of  life  or  limb"  is  a  provision  of 
the  constitution.     The  constitution  grants  the  power  to 

1—3  Greenl.  35;  XJ.  S.  v.  Gilbert,  the  plea  of  auter-foir  acquit  would 

2  Sumners,  42.  be  good  in  any  civilized  state. ' '    U. 

2 — "Robbery  on  the  high  seas  is  S.  v.  Pirates,  5  Wh.  184-197. 
considered    an    offense    within    the  3— U.  S.  v.  More,  5  Wh.  I;  State 

criminal  jurisdiction  of  all  nations.  v,  Tutt,  2  Bailey  Law,  44;   21  Am. 

It   is  against  all  and  punished  by  Dec.  508;   Cross  v.  North  Carolina, 

all;  and  there  can  be  no  doubt  that  132  N.  C.  131. 


170  Criminal  Law 

congress  to  ''provide  for  the  punisliment  of  the  coun- 
terfeiting the  securities  and  the  current  coin  of  the  United 
States."  It  was  regarded  as  a  doubtful  question  for  a 
long  time  whether  the  act  of  counterfeiting  could  be 
prosecuted  and  punished  under  state  laws,  but  it  is  well 
established  now  that  a  state  may  punish  counterfeiting 
the  coin  of  the  United  States.  Really  it  is  a  question  of 
jurisdiction,  and  where  the  state  makes  the  act  of  coun- 
terfeiting penal  it  has  ample  jurisdiction  to  punish  the 
same,  and  its  authority  is  based  upon  the  theory  that 
counterfeiting  constitutes  two  distinct  crimes,  one  of 
which  is  a  crime  against  the  government  of  the  United 
States,  and  the  other  a  crime  against  the  government  of 
the  state.  Hence,  in  this  particular  instance,  the  same 
act  is  punished  twice,  and  a  conviction  or  acquittal  in 
one  jurisdiction  would  not  be  a  bar  to  the  other.* 

§  201.  State  and  federal  government  distinct.  From 
these  observations  it  is  clear  that  the  federal  and  state 
sovereignties  and  the  state  themselves  are  independent 
of  each  other,  and  an  act  which  is  a  violation  of  the  law 
of  the  one  would  not  be  a  bar  for  the  same  act  as  the 
violation  of  the  law  of  the  other.  The  peculiar  construc- 
tion and  spirit  of  our  institutions,  however,  in  most  in- 
stances appeal  so  strongly  to  the  consciences  of  the  courts 
in  the  administration  of  justice  that  little  doubt  is  enter- 
tained that  a  conviction  in  the  one  would  be  permitted 
as  a  bar  to  the  same  act  in  another.^ 

§202.  As  to  the  administration  of  the  military  laws. 

This  question  of  jurisdiction  often  arises  in  the  trial  of 
cases  in  the  military  courts.  The  58tli  and  51)th  articles 
of  war  provide  that  the  military  courts  may  have  juris- 

4— Fox  V,  State  of  Ohio,  5  U.  S.  9   How.   5G0;    Ex  imrtc   Lango,   18 

410.  Wall.  201;  Ex  parte  Young,  36  Ore. 

5— Marshall  v.  Slate,  6  Neb.  120,  2.10,  48  L.  R.  A.  154;  Moose  v.  Illi- 

29  Am.  Kcp.  363;  U.  S.  v.  Marigold,  iioia,  14  How.  13,  14  L.  Ed.  305. 


Former  Jeopardy  171 

diction  over  certain  offenses  which  are  also  crimes  against 
the  laws  of  the  states. 

In  times  of  war  the  crimes  committed  by  privates  and 
officers  of  the  army  are  exclusivclj^  within  the  jurisdic- 
tion of  the  military  courts,  but  in  time  of  peace  the  mili- 
taiy  officers  are  bound  under  penalties  to  deliver  such 
offenders  to  the  civil  authorities  upon  the  application  of 
the  accused  to  have  his  cause  tried  in  the  civil  tribunals. 
In  one  case,  however,  it  has  been  held,  where  the  pris- 
oner failed  to  make  application  to  have  his  case  turned 
over  to  the  civil  authorities  and  the  militaiy  courts  as- 
sumed jurisdiction,  that  under  such  a  state  of  circum- 
stances the  military  courts  had  jurisdiction,  but  the 
court  refused  to  pass  upon  the  question  whether  it  would 
operate  as  a  bar  to  a  prosecution  in  the  state  court.® 

§20^'Courts  of  concurrent  jurisdiction.  The  rule  is 
well  established  that  in  courts  of  concurrent  jurisdiction 
a  trial  in  the  one  will  bar  that  in  another.''  The  court 
first  acquiring  jurisdiction  is  entitled  to  the  full  control 
and  its  judgment  is  binding  on  all  courts  of  the  same 
jurisdiction. 

§  204.  One  criminal  cannot  atone  for  his  brother  in 
crime.  Every  sane  person,  unless  otherw^ise  exempt,  is 
responsible  individually  to  the  law  for  the  violation 
thereof,  and  it  makes  no  difference  whether  his  will  and 
individual  acts  produced  the  crime,  or  whether  his  will 
in  conjunction  with  the  intention  and  action  of  others 
produce  it,  he  is  yet,  nevertheless,  guilty  of  some  degree 
of  the  violated  law. 

The  punishment  which  the  law  assesses  cannot  be  in- 
flicted jointly,  but  must  be  inflicted  severally  upon  each 
guilty  of  the  same  thing. 

6— Mason  v.  U.  S.  105  U.  S.  R.  7— State   v.    Robertson,    9    N.    C. 

696;    see    also    Grafton    v.    United       756. 
States,   206   U.   S.   333,   51   L.    Ed. 
1084,  11  Ann.  Cas.  640,  and  note. 


172  Criminal  Law 

The  act  may  be  by  tbe  joint  act  of  all,  yet  the  judg- 
ment of  the  law  is  several.  One  criminal  cannot  atone 
for  his  brother  in  crime. ^ 

In  this  respect  the  redress  of  the  state  against  those 
who  violate  the  criminal  laws,  is  distinguishable  from 
that  for  the  violation  of  mere  private  rights.  The  judg- 
ment of  the  law  in  the  latter  case  is  either  joint  or  joint 
or  several,  and  the  redress  by  the  law  may  be  sought  for 
and  recovered  from  the  joint  effects  of  all,  or  from  the 
effects  of  one  only. 

In  either  case  the  law  is  satisfied  and  operates  as  a 
perpetual  bar  to  any  further  proceedings  to  enforce  it 
in  another  court  or  in  the  same  court. 

There  are  cases  where  a  civil  or  private  right  against 
many  persons  might  be  enforced  against  each  severally, 
as  where  one  only  complies  with  the  judgment  of  the 
court,  this  would  not  operate  as  a  bar  for  the  other. 

An  illustration  is  found  where  two  or  more  are  guilty 
of  violating  the  rights  of  another,  which  violation  is  of  a 
continuing  nature,  and  who  have  been  restrained  from  a 
further  interference  with  those  rights.  Of  course  in  this 
character  of  cases  the  one  delinquent  could  not  be  justi- 
fied upon  the  ground  that  another  had  complied  with  the 
judgment  against  him.  The  criminal  law  requires  each 
of  its  violators  to  atone  individually. 

In  those  cases  where  the  joint  intent  of  two  or  more 
persons  are  required  to  commit  a  crime,  the  acquittal 
of  the  one  will  operate  as  a  bar  to  a  further  prosecution 
of  the  others,  for  the  very  evident  reason  that  if  one  is 
found  to  lack  the  intent — or,  in  other  words,  the  intent 
being  joint,  and  as  the  result  of  the  trial  of  the  one  it 
is  found  not  to  exist  as  to  liim — then  it  cannot  be  shown 
in  a  subsequent  prosecution  against  the  other  that  the 
intent  did  actually  exist,  for  the  matter  of  the  intent  has 

8— Mcdis  V.  Stnte,  27  Tex.  App.  Com.  v.  Harris,  7  Graft,  600;  Curd 
194,  11  Am.  St.  Rep.  192,  11  S.  W.  v.  Com.  14  B.  Mon.  386;  Watson  v. 
112;  Coldwell  v.  Com.  7  Dana,  229;        State,  3  Wis.  785. 


Former  Jeopardy  173 

been  adjudicated  and  found  not  to  have  existed.  This 
may  be  illustrated  and  examples  found  in  the  crimes  of 
riot,  conspiracy,  and  incest,  or  in  other  crimes  where 
the  law  requires  that  each  party  to  the  offense  have  com- 
mon knowledge  of  the  relation  and  circumstances  under 
which  they  act.  Thus  it  has  been  held  that  where,  under 
a  statute  declaring, ' '  if  any  step-mother  and  her  step-son 
shall  have  carnal  intercourse  together,  having  knowl- 
edge of  their  relationship,"  an  acquittal  of  one  was  a 
bar  to  the  prosecution  of  the  other.*  In  those  crimes 
which  require  the  joint  and  concurring  intent  of  the  par- 
ticipants and  as  well  as  the  physical  participation,  the 
joint  participation,  will  not  of  itself,  independent  of  the 
concurring  criminal  intent,  constitute  the  crime,  as  in  the 
above  illustration.  There  is  a  class  of  crimes,  such  as 
adultery  and  fornication,  where  there  is  a  joint  physical 
participation,  the  acquittal  of  one  of  the  participants 
will  not  bar  the  prosecution  of  the  other,  where  there 
is  not,  in  the  particular  case  a  concurring  intent  to 
commit  the  crime.  As  to  this  there  are  conflicting 
authorities,  but  we  believe  that  the  weight  of  reason,  as 
well  as  of  authorities,  sustain  the  doctrine  that  in  the 
cases  of  adultery,  fornication,  and  incest  that  the  ac- 
quittal of  one  will  not  operate  as  a  bar  to  the  other.^° 

§  205.  All  participators  punished.  As  we  have  seen  in 
the  preceding  section  that  each  party  to  a  crime  must 
answer  to  the  law  for  his  participation  therein,  hence  the 
acquittal  of  one  of  several  joint  participators  will  not 
operate  as  a  bar  to  the  other,  the  theory  of  the  law  being 
that  all  violators  be  punished  equally,  according  to  his 
participation,  and  the  quantum  of  intent."     This,  per- 

9— Baumer  v.  State,  49  Ind.  544,  378,  49  Am.  Eep.  207;  Ledbetter  v. 

19  Am.  Rep.  691;  Id.  19  Am.  S.  R.  the  State,  21   Tex.  App.  344,  17   S. 

691;    Delaiiey   v.   People,   10    Mich.  W.  427;   State  v.  Ellis,  74  Mo.  385, 

241.  Id.  41  Am.  R.  321. 

10— Alonzo  V.  State,  15  Tex.  App.  11— State       v.       McClintock,       1 


174  Criminal  Law 

haps,  cannot  be  true  in  all  cases,  but  relatively  it  is  true. 
To  illustrate:  A  and  B  engage  in  a  common  purpose  to 
murder  C  as  principals;  A  is  put  on  his  trial  and  is  con- 
victed of  murder  in  the  first  degree;  B  is  put  on  trial 
before  a  different  jury  and  is  convicted  for  the  murder  in 
the  second  degree.  In  the  former  the  punishment  is 
death  and  the  latter  a  term  in  the  penitentiary.  So,  upon 
the  trial  of  equal  participants,  one  may  be  convicted  and 
the  other  acquitted,  and  yet  the  acquittal  of  the  one  will 
not  be  a  bar  to  the  conviction  of  the  other.  So,  it  has 
been  held,  that  where  one  has  been  acquitted  as  a  prin- 
cipal he  may  be  convicted  as  an  accessory  to  the  same 
crime. ^^  Where  several  are  jointly  charged  in  the  same 
indictment  and  jointly  tried,  the  acquittal  would  operate 
as  a  bar  to  the  subsequent  prosecution  of  one  of  the  par- 
ticipants singly.^^ 

§  206.  Jeopardy  is  applicable  to  offenses  containing 
common  elements.  Thus  a  conviction  for  unlawfully  sell- 
ing liquor  without  a  license  wall  not  operate  as  a  bar  to 
a  prosecution  for  maintaining  a  nuisance  for  selling  the 
liquor.  Both  being  independent  and  substantive  of- 
fenses, the  elements  of  the  one  do  not  enter  into  the  other. 
So,  also,  upon  an  indictment  for  selling  liquor  to  a  minor 
without  his  parent's  or  guardian's  consent  a  conviction 
for  the  selling  the  liquor  without  a  license  is  not  a  bar 
for  selling  the  same  liquor  to  the  minor."  So,  where 
selling  lotteiy  tickets  and  being  a  common  gambler  is 
each  a  violation  of  the  law,  the  conviction  of  the  one  is 
not  a  bar  for  the  other.^^  Selling  liquor  on  Sunday  is 
not  a  bar  for  selling  the  same  liquor  without  license. ^^ 
Where  there  are  several  counts  in  the  same  indictment 

Greene,    392;    Com.    v.    McChard,    2  14— Euble  v.  Slate   (Ark.),  10  S. 

Dana,   242;    State  v.   Rose,  29  Me.  W.  362. 

32.  15— People  V.  Dewey,  58  IIow.  62. 

12— State  V.  Larkin,  40  N.  H.  36.  16— Arrington  v.  Com.,  87  Va,  96, 

13— State  V.  Martin,  30  Wis.  216,  12  S.  E.  224;  People  v.  Sinoll,  131 

11  Am.  Rep.  567.  N.  Y,  571,  30  N.  E.  47. 


FoBMEE  Jeopardy  175 

for  the  violation  of  the  same  law  and  the  defendant  has 
pleaded  to  all  of  them  and  the  prosecution  has  elected 
which  it  will  ask  conviction  on,  an  acquittal  is  a  bar  for 
a  subsequent  prosecution  for  any  of  the  counts."  A  con- 
viction for  selling  liquor  subsequent  to  a  certain  date  is 
not  a  bar  for  selling  liquor  prior  to  that  date.^®  If  the 
defendant  can  show  that  the  prosecutions  cover  the  same 
transaction,  then  the  plea  of  former  jeopardy  may  be 
successfully  invoked.  If,  however,  they  are  different  in 
any  material  respects  then  it  will  be  no  avail.^^ 

§  207.  Different   crime   proceeding-  from  same   facts. 

Where  the  law  creates  two  or  more  offenses,  the  criminal 
elements  of  which  proceed  relatively  from  the  same  facts, 
yet  the  fact  of  one  necessary  to  sustain  it,  being  in  some 
respect  immaterial  in  the  other,  the  conviction  or  acquit- 
tal in  the  one  will  not  constitute  former  jeopardy,  and  a 
conviction  may  be  had  for  the  other.^° 

Thus,  to  illustrate:  Where  the  statute  makes  it  penal 
to  sell  intoxicating  liquors  unless  first  a  license  is  pro- 
cured, and  where  it  also  provides  that  a  sale  of  liquor 
to  a  minor  without  the  written  consent  of  the  parents  or 
the  guardian  shall  be  punished,  etc.  In  this  case  it  is 
to  be  noticed  that  the  sale  of  the  liquor  is  a  common 
element  of  both  offenses,  yet  it  requires  entirely  different 

17— People  V.    Sinell,   131   N.   Y.  Euble  v.  State  (Ark.)  10  S.  W.  262; 

571,  30  N.  E.  47.  State  v.   Sonnerkolf,   2   Mott.   &  M. 

18— Murphy   v.   State    (Neb.)    41  280;    Com.    v.    Harrison,    11    Gray, 

N.   W.   792;    25   Neb.   807.     Where  308;    State    v.    Franklin     (La.)     2 

there   is  any   difference  in  the   of-  South.  539;    Com.  v.  Thompson,  24 

fenses,    i.    e.,    substantive    and    dis-  Pick.  374;  Hopper  v.  State,  19  Ark. 

tinct  crime,  such  as  principals  and  146;  Williams  v.  State,  35  Ark.  434; 

accessories,    the    conviction    or    ac-  Com.   v.   Vaughn,   101    Ky.   603,  42 

quiital  will  not  operate  as  a  bar  to  S.  W.  117,  45  L.  R.  A.  858;   Stewart 

the  other.    Chitty's  Cr.  Law,  452.  v.   State,   35  Tex.   App.    174.   32   S. 

19— State  V.  Judge  of  Second  Re-  W.   766,   60   A.   S.   R.   35;    Jones  v. 

corder's   Court,   43   La.  Ann.   1119,  State,  66  Miss.  380,  6  So.  231,  14  A. 

10  So.  179.  S.  R.  570,  and  note. 

20— Com.  V.  Vaugn,  4  S.  W.  117; 


176  Criminal  Law 

evidence  to  convict.  Under  the  former  statute  the  main 
fact  to  be  proved  in  order  to  convict  is  that  the  liquor 
was  sold  without  first  having  obtained  a  license  to  sell, 
but  in  the  latter  the  main  fact  to  be  proved  is  that  the 
liquor  was  sold  to  the  minor  without  the  consent  of  the 
parent  or  the  guardian,  and  it  is  immaterial  whether  he 
had  a  license  to  sell  or  not,  and  in  the  former  the  seller 
would  be  guilty  if  he  had  no  license  even  if  the  consent 
of  the  parent  had  been  given  to  the  minor.  So,  upon 
the  same  line  of  reasoning,  it  has  been  held  that  where 
two  statutes,  one  of  which  imposed  a  penalty  of  fifty 
pounds  upon  a  person  retailing  liquor  without  license, 
and  the  other  by  imposing  a  fine  of  a  thousand  dollars 
and  imprisonment  for  selling  to  a  negro  without  a  ticket, 
that  a  conviction  of  the  one  was  not  a  bar  to  the  other; 
so  the  act  of  buying  goods  from  a  negro,  knowing  the 
same  to  have  been  stolen,  subjected  the  party  buying  to 
two  punishments:  one  for  the  buying  the  stolen  goods, 
knowing  them  to  be  stolen,  and  the  other  for  buying  from 
a  negro  without  a  ticket.  So,  also,  where  a  party  is  en- 
trusted with  the  personal  property  of  another  and  he  rep- 
resents to  another  that  he  is  the  owner,  whereby  he 
induced  such  party  to  part  with  his  property  in  exchange 
for  the  property  that  has  been  entrusted  to  him,  he  is 
guilty  both  of  the  crimes  of  embezzlement  and  of  obtain- 
ing goods  under  false  pretense.  It  has  also  been  held 
that  it  is  no  bar  to  a  prosecution  for  keeping  an  open 
shop  on  Sunday  where  the  party  has  been  acquitted  for 
selling  liquor  without  license.  One  of  the  tests,  says  the 
court  in  the  case  of  Commonwealth  v.  Vaughn,  42  S.  W. 
Reporter  at  page  118,  to  determine  the  identity  of  of- 
fenses is,  if  the  evidence  of  facts  alleged  in  the  second 
indictment  is  not  within  itself  sufficient  to  convict  under 
the  first  indictment,  the  offenses  charged  in  the  two  in- 
dictments are  not  the  same. 

§  208.  Minor  offense  included  in  a  greater.    It  is  a  well 
settled  rule  tli;i(   wiicii  a  minor  offense  is  included  in  a 


Former  Jeopardy  177 

greater,  and  both  are  properly  pleaded  in  the  same  in- 
dictment, a  conviction  of  the  minor  will  be  a  bar  to  a 
subsequent  conviction  for  the  major.''^  But,  however,  if 
for  any  reason,  either  in  the  pleadings  or  in  the  nature 
of  the  offense,  there  could  not  have  been  a  conviction 
or  an  acquittal  of  the  higher  offense,  a  conviction  of  the 
lesser  will  not  be  a  bar  to  a  subsequent  trial  for  the 
greater.^^  But,  as  previously  stated,  in  an  indictment 
for  murder  a  conviction  for  manslaughter  is  a  bar  to  sub- 
sequent prosecution  for  the  murder.  So,  also,  a  trial  for 
murder,  a  conviction  of  murder  in  the  second  degree  is  a 
bar  to  a  subsequent  indictment  for  the  same  murder  in 
the  first  degree.^^  So,  also,  the  prosecution  for  an  as- 
sault and  battery,  the  conviction  of  an  assault  is  a  bar 
for  the  assault  and  battery,  and  an  assault  and  battery 
bars  a  prosecution  for  an  assault  to  murder  where  the 
charge  is  murder.  A  conviction  or  acquittal  of  the  as- 
sault to  murder  will  not  bar  the  prosecution  for  the 
nmrder  if  afterwards  the  party  assaulted  dies  as  the 
result  of  the  assault,  this,  for  the  reason  as  above  stated, 
that  if  for  any  reason  the  greater  offense  could  not  have 
been  passed  upon  in  the  trial  for  the  lesser. 

§  209.  Same,  continued.     In  prosecutions  of  offenses 
containing  a  lesser  and  a  major  offense,  a  conviction  of 

21— state  V.  Wiles,  26  Minn.  381;  Tex.  App.  453,  53  Am.  R.  385;  State 

Com.  V.  Sheldon,  3  Mass.  188;  State  v.   Littlefield,   70   Me.  452,  35  Am. 

V.  Murray,  55  la.  530;  State  v.  Biz-  Eep.  335. 

zell,  58  N.  H.  257;  People  v.  Smith,  23— Jones  v.  State,  13  Tex.  169; 

57    Barb.    (N.   Y.)    46;    Hickey   v.  State  v.  Moon,  41  Wis.  684,  2  Am. 

State,  23  Ind.  21.     Defendant  con-  Cr.   Rep.    64;    Parker   v.    State,   22 

vieted  of  a  simple  assault  under  an  Tex.  App.  105;  People  v.  Downing, 

information  charging  aggravated  as-  84  N.  Y.  478.     One  who  is  indicted 

sault.    There  was  no  express  acquit-  for  murder  in  the  first  degree  and 

tal  of  the  aggravated  assault;  held  convicted   of   the    second   degree   is 

that  the  conviction  could  be  pleaded  thereby   acquitted   of   the    first    de- 

in  bar  for  a  subsequent  prosecution  gree,   cannot  upon  a   new  trial   be 

for  the  aggravated  assault.     Rober-  again  convicted  of  the  first  degree, 

son  V.  State,  1  Tex.  App.  160.  Johnson  v.  State,  19  Tex.  App.  453, 

22— Winn  v.   State,   82  Wis.  576,  53  Am.  Eep.  385. 
52  N.  W.  775;  Johnson  v.  State,  19 

a  L.— 12 


178  Criminal  Law 

the  major  bars  a  subsequent  prosecution  for  the  lesser.^* 
Thus,  as  already  noted,  a  conviction  or  an  acquittal  of  a 
murder  is  a  bar  to  a  subsequent  prosecution  for  man- 
slaughter, but  in  murder  and  in  the  lesser  degrees  a  con- 
viction or  acquittal  of  any  one  of  them  or  all  of  them 
is  not  a  bar  to  a  prosecution  for  carrying  a  prohibited 
weapon,  with  which  the  assault  was  committed.  An  ac- 
quittal of  larceny  is  no  bar  to  the  charge  of  acquiring 
the  goods  by  false  pretenses,  although  an  attempt  was 
made  to  procure  a  conviction  of  larceny  upon  the  same 
evidence  introduced  to  support  the  subsequent  prosecu- 
tion for  obtaining  goods  by  false  pretenses.^^  Nor  is  the 
accused  twice  put  in  jeopardy  by  having  his  cause  re- 
manded for  new  trial  after  having  had  a  former  convic- 
tion set  aside  for  errors  occurring  at  the  trial  in  the  court 
below.^®  A  person  is  in  jeopardy  whenever  his  cause  has 
been  given  to  a  jury  upon  a  legal  indictment  and  the  jury 
has  been  unnecessarily  discharged.^' 

The  constitutional  protection  guaranteed  to  a  person 
that  he  shall  not  be  twice  put  in  jeopardy  of  life  or  limb 
means  that  no  one  shall,  after  an  acquittal  or  con- 
viction, be  tried  twice  for  the  same  offense,  and  it  does 
not  prohibit  a  court  in  the  exercise  of  a  sound  dis- 
cretion from  discharging  a  jury  in  a  criminal  case  with- 
out the  defendant's  consent.^*  Where  a  party  is  charged 
in  two  indictments  for  stealing  a  horse  and  wagon,  one 
for  stealing  the  horse  and  the  other  for  stealing  the 
wagon,  a  conviction  or  acquittal  for  stealing  the  horse 
is  a  bar  for  stealing  the  wagon  where  it  was  done  at  the 
same  time  and  in  the  same  state. 

24 — State  v.   Hall,  50   Ark.   28,   G  2G— Young  v.  Sintc,  98  Am.  Dec. 

S.  W.  20;   Brown  v.  State,  74  Tex.  791,  2  W.  Va.  579. 

App.   2.'54,    167   S.   W.   1014;    Jones  27— Price  v.  State,  M  Miss.  356, 

V.  State,  i;!  Tex.   168,  62  Am.  Dec.  72  Am.  Dec.  195. 

550.  28— Wrifjlit  v.  State,  5  Tnd.  290, 

25— Consineck    v.    State,    40    Ala.  (H    Am.   Doc.  90;    Fislier  v.  Com.   1 

680,  91  Am.  Dec.  496.         .  Bush  (Ky.)   211,  89  Am.  Dec.  620. 


Former  Jeopardy  179 

WHAT  CONSTITUTES  JEOPARDY 

§  210.  As  to  indictment.  Former  jeopardy  cannot  be 
predicated  upon  a  defective  indictment.^^  If  the  indict- 
ment upon  which  the  former  acquittal  or  conviction  is 
based,  is  so  defective  in  form  or  substance  as  to  render 
any  judgment  thereon  subject  to  be  arrested  upon  the 
motion  of  the  defendant,  had  he  been  found  guilty  under 
it,  will  not  operate  as  a  bar.  The  indictment  must  be 
sufficient  to  authorize  all  legal  evidence  necessary  to  a 
conviction,  and  if  such  is  the  case  it  can  make  no  differ- 
ence whether  the  evidence  was  offered  or  not,  the  former 
jeopardy  is  complete  so  far  as  the  indictment  is  con- 
cerned. So,  if  the  court  before  whom  the  first  trial  was 
had  determined  that  the  indictment  was  defective  and 
an  acquittal  is  directed  because  of  the  want  of  authority 
to  admit  legal  evidence  under  it,  or  for  any  other  reason 
an  acquittal  is  had,  the  fact  that  the  court  erred  in  his 
judgment  as  to  the  validity  of  the  indictment  becomes 
res  adjudicata,  and  the  jeopardy  is  complete  and  the 
court  of  the  second  trial  is  bound  to  accept  the  judg- 
ment of  the  first  court  as  to  the  validity  of  the  indict- 
ment.^'' The  rule  herein  announced  may  be  regarded  as 
the  general  rule  upon  this  subject,  but  in  some  of  the 
states,  by  constitutional  and  statutory  provisions,  it  is 
immaterial  whether  the  indictment  is  defective  or  not, 
the  jeopardy  attaches  at  all  events,^^  either  upon  convic- 
tion or  acquittal. 

§211.  Variance  between  indictment  and  proof.  An- 
other well  established  rule  is,  where  there  is  a  variance 
between  the  allegation  of  the  indictment  and  the  proof 

29 — Kearney  v.  State,  48  Md.  16;  in  the  following  cases:     Dissenting 

People  V.   Barns  &  Ward,   1  John.  opinion  of  Walker  in  case  Black  v. 

KeP-  66.  State,  36  Ga.  447;   State  v.  Gooch, 

30— Black  V.   State,   36   Ga.  447,  60   Ark.   218;    uaskins  v.   Com.,  97 

Id.  91  Am.  Dec.  772;  3  Greenl.  Ev.  Kj.  494. 

35  and  36.     This  view  is  sustained  31 — Anderson   v.   State,   24   Tex. 


180  Criminal  Law 

and  by  reason  of  such  defect  tlie  defendant  is  enabled  to 
be  acquitted,  sucli  acquittal  will  not  justify  a  bar  to  a 
subsequent  trial  on  the  same  indictment.^^  The  reason 
for  this  is  very  evident,  because  if  the  facts  offered  under 
the  indictment  present  a  different  state  of  facts  than 
that  alleged  in  the  indictment,  there  is  in  effect  no  trial 
upon  it.  Thus  the  allegation  that  the  property  stolen  is 
the  property  of  H.  Franks,  when  the  proof  shows  it  to 
have  been  the  property  of  Thomas  H.  Frank,  or  where 
the  name  Brison  appears  for  Prison;  ^^  or  where  there 
is  misnomer,  either  as  to  the  correct  name  of  the  de- 
fendant, or  the  name  of  the  person  upon  whom  the  injuiy 
has  been  inflicted;  or  where  the  means  alleged  in  the  in- 
dictment is  different  from  that  offered  in  proof. ^*  As 
the  acquittal  for  embezzling  cloth  from  which  coats  are 
made  is  no  bar  for  embezzling  the  coats.^^ 

§  212.  Court  of  the  indictment  must  have  jurisdiction. 
The  court  from  which  the  indictment  proceeds  must  have 
had  jurisdiction  over  the  crime  as  well  as  over  the  person 
of  the  defendant,  otherwise  an  acquittal  or  a  conviction 
under  it  will  not  serve  as  a  bar  to  another  trial  for  t]ie 
same  crime  in  a  court  having  jurisdiction.^® 

So,  also,  if  the  indictment  is  found  by  an  illegally  or- 
ganized grand  jury,  or  where  some  of  the  members  are 

App.  705,  7  S.  W.  40;  Hurt  v.  State,  34— People  v.   McNealy,   17   Cal. 

25  Miss.  378,  Id.  59  Am.  Dec.  225;  332;  Morgan  v.  State,  34  Tex.  677. 

Harper  v.  State,  59  Ark.  113;  State  35— Com.  v.  Clair,  7  Allen,  525; 

V.    Ward,    48    Ark.    36,   Id.    3    Am.  Com.  v.   Sumnierville,   1  Va.   Cases, 

State  Rep.  213,  2  S.  W.  191.  163;  Kite  v.  Stale,  9  Yearger,  357; 

32— Ex    parte    Bodges,    10    Tex.  U.    S.    v.    Nicholson,    7    How.    204; 

App.  655;  Mather  v.  State,  26  Ala.  Williams  v.  Com.,  78  Ky.  93;  Lee  v. 

72;    Guedel  v.  People,  43  111.  226;  State,  26  Ark.  260,  7  Am.  Rep.  611. 

Com.    V.    Farrell,    105    Mass.    189;  36— McNeal    v.    State,    29    Tex, 

Com.    V.    Crislcy,    107    Mass.    223;  App.    46;     Flominiii',^    v.    Slate,    16 

State  V.  McCoy,  14  N.  11.  304.  Tox.   App.   30;    Wilson   v.   Slnlc.   16 

33— Parliam  v.  State,  2  Tex.  App.  Tox.  App.  240. 
228. 


Former  Jeopardy  181 

for  any  cause  incompetent,  the  conviction  or  acquittal 
will  not  constitute  former  jeopardy.^' 

A  judgment  of  a  court  without  jurisdiction  is  void  and 
an  absolute  nullity,  and  hence  a  trial  under  such  circum- 
stances is  in  effect  no  trial,  and  the  bar  will  not  attach  to 
a  second  prosecution.  But  where  the  judgTaent  of  a 
criminal  court  is  merely  voidable,  the  judgment  of  ac- 
quittal or  conviction,  it  appears  that  upon  a  second  trial, 
this  judgment  would  be  a  bar  in  the  absence  of  a  reversal 
of  the  judgment,  conviction  under  a  void  indictment 
where  the  accused  has  suffered  the  penalty  will  bar  a  sub- 
sequent prosecution.^' 

§  213.  Different  counts.  Where  an  indictment  charges 
in  different  counts  the  same  crime  but  by  different  means 
or  modes  a  verdict  of  a  juiy  upon  one  of  the  counts  with 
silence  as  to  the  others,  a  new  trial  granted  will  open  the 
whole  case  as  though  no  trial  had  been  had  in  the  first  in- 
stance. But  where  the  indictment  charges  in  different 
counts  distinct  offenses  a  verdict  by  the  jmy  upon  one 
count  alone  with  silence  as  to  the  others,  the  defendant 
stands  acquitted  as  to  those  not  mentioned  in  the  verdict, 
and  in  the  event  of  a  new  trial  the  defendant  may  plead 
former  jeopardy  as  to  those  counts  upon  which  verdict 
was  silent.^®  In  the  former  case  there  is  only  one  crime 
charged  but  it  is  charged  to  have  been  committed  by  dif- 
ferent means  or  mode,  and  the  verdict  carries  w^ith  it  the 
same  legal  consequences,  whether  upon  one  or  all  the 

37 — Thompson   v.    State,    6    Neb.  vis  v.  State,  19  Ohio  St.  585;   Bai- 

102;  Marston  v.  Jenness,  11  N.  H.  ley  v.  State,  26  Ga.  579;  Michel  v. 

155;   Kohlheimer  v.  State,  39  Miss.  State,  5  Yearg.  514;  State  v.  Stan- 

548,  77  Am.  Dec.  689,  and  note.  ton,  23  N.  C.  424;   Bro^ATi  v.  U.  S., 

38— State  v.  Scott,  99  la.  36,  68  52  S.  W.  56.  This  latter  is  an  In- 
X.  W.  45;  Kohlheimer  v.  State,  39  dian  Territory  case.  Bell  v.  State, 
Miss.  548,  77  Am.  Dec.  689,  and  48  Ala.  684,  17  Am.  Rep.  40;  Camp- 
note,  bell  V.  State,  9  Yerg.   (Tenn.)   333, 

39 — See  the  following  cases:  Les-  30  Am.  Dec.  117;   Contra  Pranfeth 

ter  V.  State,  18  Ohio  St.  391;  Jar-  v.  State,  79  Vt.  236,  65  Atl.  84. 


182  Criminal  Law 

counts  for  if  this  was  not  true,  says  the  courts,  the  prose- 
cution would  often  be  defeated  or  greatly  impaired  in  the 
event  the  defendant  upon  his  motion  obtained  a  new 
trial.  Where  the  counts  are  for  separate  and  distinct 
offenses  the  verdict  is  necessarily  several  in  its  nature  and 
the  finding  as  to  each  offense  forms  the  basis  for  separate 
judgments. 

§  214.  Second  as  to  the  effect  of  a  new  trial  and  an 
arrest  of  judgment.  At  the  common  law  the  courts  could 
not  grant  a  new  trial  after  a  conviction  in  a  felony  case, 
but  in  misdemeanors  it  appears  that  authority  was  not 
wanting.*"  So  it  has  been  held  that  where  the  statute 
fails  to  change  the  rule  of  the  common  law  in  this  respect, 
the  common  law  might  be  resorted  to,  to  justify  a  refusal 
to  allow  a  new  trial  in  a  felony  and  a  treason.  This,  how- 
ever, has  from  the  early  part  of  the  nineteenth  century 
been  declared  generally  not  the  law  of  the  American 
State  as  being  repugnant  to  the  genius  of  our  institu- 
tions, and  in  general  it  may  be  said  that  the  rule  of  the 
common  law  has  never  been  followed  with  us.*^  So  the 
rule  may  be  stated  that  in  the  absence  of  a  statute  the 
defendant  in  a  criminal  case,  as  a  matter  of  right  is 
entitled  to  reserve  his  exception  to  the  court  rulings  dur- 
ing a  trial,  and  for  material  errors  therein  may  have  the 
judgment  set  aside  either  in  arrest  of  the  judgment,  or  by 
a  motion  for  a  new  trial,  or  on  appeal  have  a  new  trial 
by  a  reversal  of  the  judgment  in  a  court  of  last  resort. 
At  the  common  law,  if  for  the  errors  of  the  court  the 
defendant  had  been  improperly  convicted,  the  conviction 
liad  to  stand  and  the  usual  practice  seemed  to  have  been 
for  the  court  to  recommend  to  the  king  that  a  pardon  be 

40 — People  v.  Comstock,  8  Wend.  172;  McCaul's  Case,  1  Va.  Cases, 
549,  3  Bla.  Com.  387;  Younger  v.  271;  Ball's  Case,  8  Leigh.  726;  U. 
State,  2  W.  Va.  579,  Id.  98  Am.  8.  v.  Freis,  3  Dall.  375,  1  (L.  C.  P. 
Dec.  791;  People  v.  Marble,  38  Kd)  U.  S.  Rep.  701;  State  v.  Hop- 
Mich.  309.  kins,    1    Bay,    372;    McCutcheon    v. 

41— Crump's    Case,    1    Va.    Cas.  State,  176  Ind.  13,  93  N.  E.  545. 


FoRMEK  Jeopardy  183 

granted.  As  a  rule  in  the  several  states  statutes  cover 
minutely  the  instances  and  circumstances  under  which 
new  trials  may  be  had,  or  in  the  absence  of  the  statutes 
the  courts  have  established  the  rule  to  allow  the  same 
upon  the  application  of  the  defendant  in  the  furtherance 
of  justice.  For  the  rule  as  at  the  common  law,  as  appli- 
cable to  our  country  appears  to  be  so  foreign  to  our  sense 
of  justice  the  great  uncertainty  and  the  delay  incident 
to  the  application,  and  the  too  apt  abuse  of  the  judge's 
recommendation  for  pardon,  and  the  further  uncertainty 
of  the  favorable  action  of  the  pardoning  power,  the 
courts  in  order  that  the  opportunities  to  do  the  defend- 
ant an  injustice  might  be  reduced  to  a  minimum  have 
allowed  the  defendant  the  right  to  apply  and  obtain  with- 
in certain  Avell  defined  rules  a  second  trial.*^ 

§  215.  Same  continued.  Based  upon  the  foregoing  con- 
siderations the  courts  hold  that  the  granting  a  new  trial 
does  not  operate  against  the  constitutional  provisions 
of  the  states  and  the  maxim  of  the  common  law  that 
"no  person  shall  be  twice  put  in  jeopardy  of  life  or  limb." 
Hence  where  a  new  trial  is  granted  to  the  defendant 
either  by  the  court  before  whom  the  cause  was  tried  upon 
the  motion  of  the  defendant,  or  where  by  appeal  or  writ 
of  error  the  same  is  reversed  a  second  trial  under  such 
circumstances  is  not  a  putting  in  jeopardy  as  contem- 
plated by  the  constitution,  and  a  conviction  is  not  a  bar 
to  the  second  trial.*^ 

§  216.  State  has  no  right  to  appeal.  The  rule  is  well 
established  that  in  the  absence  of  a  statute  extending  the 

42— Green's  Case,  17  Mass.  525;  43— Gannon    v.    People,    127    111. 

Armstead's  Case,  11  Leigh.  657,  Id.  507,  11  Am.   St.  R.   147,  21  N.  E. 

37  Am,  Dec.   623;    Overbee's  Case,  525;  Lowe  v.  People,  5  Gilman,  305; 

1  Eob.  (Va.)  756;  Marshall's  Case,  Com.     v.     Green,     17     Mass.     515; 

5    Gratt.    663 ;    Warenty  's    Case,    8  Younger  v.  State,  2  W.  Va.  579,  98 

Gratt.  712,  56  Am.  Dec.  162;  Y^oung-  Am.  Dec.  707;   Suteliff  v.  State,  18 

er  V,  State,  2  W.  Va.  579,  98  Am.  Ohio,  469,  51  Am.  Dec.  459;  People 

Dec.  791.  V.  Travers,  77  Cal.  176. 


184  Criminal  Law 

power  to  the  state  to  appeal  or  take  a  criminal  case  up 
on  a  writ  of  error  it  has  no  power  or  authority  after  the 
acquittal  of  the  defendant  to  appeal  or  otherwise  have 
the  cause  reversed  because  the  same  would  be  twice  trying 
the  defendant  for  the  same  offenses.  Thus  one  court 
says:  ''This  court  has  over  and  over  again  said  that  in  no 
case  in  the  sessions  wall  they  grant  a  new  trial  when  the 
verdict  is  for  the  defendant.  It  is  the  intention  of  the 
principle  that  no  man  shall  twdce  be  put  in  jeopardy  of 
his  life  so  that  no  man  shall  twice  be  tried  for  the  same 
offense  when  one  juiy  have  passed  upon  and  declared  his 
innocence.  It  is  giving  to  the  prisoner  the  benefit  not 
only  the  prejudice  of  his  jurors  but  even  the  errors  of  his 
judge."** 

§  217.  Two  offenses  committed  by  the  same  act.  There 
is  great  conflict  and  confusion  in  the  reported  cases  w^liere 
the  same  act  constitutes  tw^o  or  more  distinct  offenses, 
whether  each  is  separately  indictable,  and  that  a  convic- 
tion or  acquittal  of  the  one  will  act  as  a  bar  to  the  prose- 
cution of  the  other.*^  So  it  has  been  held  that  w^liere  the 
same  blow  struck  one  person  lawfully,  and  another  un- 
lawfully, the  acquittal  for  the  striking  the  blow  under 
law^ful  circumstances  was  not  a  bar  for  the  otlier.*^  But 
where  two  crimes  are  committed  in  the  same  rencounter 
l)ut  do  not  proceed  from  the  same  act  or  blow  but  are  so 

44 — state  v.  McKee,  1  Bailey  State,  23  Ind.  21;  State  v.  Damun, 
Law,  651,  21  Am.  Dec.  504,  and  2  Tyler  (Vt.)  387;  State  v.  Fay- 
note;  State  ex  rel.  Eowe  v.  District  ettevilte,  2  Murpliey  (N.  C.)  371; 
Court  Silver  Bow  County,  44  Mont.  Fisher  v.  Com.,  1  Bush.  (Ky.)  211, 
318,  119  Pac.  1103,  Ann.  Cas.  89  Am.  Dec.  620;  Roberts  v.  State, 
1913  B,  396;  State  v.  Reed,  52  Or.  14  Ga.  81;  State  v.  Burnham,  7 
377,  97  Pac.  753;  People  v.  Horn,  Conn.  414;  Vaugn  v.  Com.  2  Va. 
70  Cal.  ]7,  11  Pac.  470;  Cochran  Cas.  273;  State  v.  Standerfer,  5 
V.  State,  119  Md.  539,  87  Atl.  400.  Porter  (Ala.)   523;  State  v.  Thurs- 

45— Slate  v.  Cooper,  1  Green,  13  ton,  2  McMillian  (S.  C.)  382;  Com. 

N.  .].  361,  25  Am.  Dec.  490;   State  v.  Andrews,  408. 

V.  Sheppard,  7  Conn.   156;    Com.  v.  46— Jones  v.  State,  66  Miss.  380, 

Squires,    1    Mete.    258;     Hickcy    v.  Id.  14  Am.  St.  R.  570. 


FoKMER  Jeopardy  185 

closely  connected  that  the  proof  of  the  one  cannot  be 
made  without  the  proof  of  the  other  the  conviction  or  ac- 
quittal of  the  one  will  not  bar  the  other.  So  where  the 
same  person  killed  two  persons  in  the  same  assault,  but 
the  killing  proceeded  from  two  different  acts,  the  convic- 
tion or  acquittal  of  the  one  will  not  bar  the  prosecution 
of  the  other.  So,  also,  if  two  or  more  persons  conspire  to 
kill  two  persons  and  one  of  them  kills  the  two  but  by 
two  different  acts  or  shots  the  act  of  one  is  the  act  of  all, 
the  conviction  of  the  one  who  did  the  killing  of  one  of  the 
persons  will  not  bar  the  prosecution  as  to  the  killing  of 
the  other,  nor  will  it  bar  the  prosecution  of  the  partici- 
pants in  the  crime.*'' 

§  218.  Larceny  from  different  persons  at  the  same  time. 

The  larceny  of  several  different  articles  at  the  same  time 
from  the  same  or  from  different  persons  is  only  one  crime, 
and  the  act  cannot  be  divided  so  as  to  make  a  part  of  the 
act  indictable  independent  of  the  other."  Hence  if  the 
same  is  divided  and  the  defendant  is  prosecuted  for  a  part 
of  the  stolen  goods,  or  in  case  the  theft  is  of  goods  belong- 
ing to  two  persons,  and  an  indictment  is  found  as  to  the 
theft  of  one  only  a  trial  and  acquittal  of  this  will  be  a  bar 
to  a  prosecution  of  the  balance.  And  this  is  the  rule  even 
where  part  of  the  property  is  by  statute  made  a  specific 
kind  of  larceny  for  which  a  different  punishment  is  at- 

47— Tate  v.  State,  53  Miss.  439,  10    Humph.    (Tenn.)    101;    Jackson 

Id.  24  Am.  Eep.  708.     "A  convic-  v.  State,  14  Ind.  327;  State  v.  Nel- 

lion  of  a  robbery  is  a  bar  to  subse-  son,  29  Me.  329;   Ben  v.   State,   22 

quent  prosecution  for  murder  result-  Ala.  9,  58  Am.  Dec.  234;   Clem  v. 

ing  from  the  criminal  act  done  in  State,  42  Ind.  420,  13  Am.  Rep.  369; 

the    perpetration    of    the    robbery,  Mahala  v.  State,  10  Yerger,  532,  31 

where  the  statute  makes  undesigned  Am.  Dec.  591 ;  William  v.  State,  44 

killing  in  the  perpetration   of   rob-  Am,  Dec.  403,  2  Grat.  567;  State  v. 

bery   murder."      Syllabus    State   v.  Ray,    33    Am.    Dec.    90;    Miller    v. 

Mowser    (N.    J.)    106    Atl.    416,    4  State,  8  Ind.  327;  Reese  v.  State,  8 

A.  L.  R.  695,  and  note.  Ind.  416;   People  v.  Webb,  38  Cal. 

48— Roberts   v.   State,   14   Ga.   8,  478. 
58  Am.  Dec.  528;  State  v.  Williams, 


186  Ceimixal  Law 

tacked.  Such  as  where  the  defendant  is  indicted  for  the 
stealing  of  a  horse,  wagon  and  a  set  of  harness  a  convic- 
tion for  the  larceny  of  the  horse  will  bar  a  prosecution 
for  the  larceny  of  the  wagon  and  set  of  harness,  although 
the  punishment  is  greater  for  the  stealing  the  horse  than 
for  the  other  articles.*^  There  is  a  considerable  conflict 
in  the  authorities  whether  in  case  the  larceny  is  from  dif- 
ferent persons  but  by  the  same  act  and  at  the  same  time 
the  conviction  or  acquittal  of  the  larceny  for  one  person 
will  bar  a  prosecution  for  the  larceny  from  the  other.^*' 
We  believe  that  the  weight  of  reason  as  well  as  the  au- 
thorities support  the  rule  as  given  in  the  first  part  of  this 
section.  There  does  not  appear  to  be  any  good  reason  to 
say  that  a  prosecution  for  the  larceny  from  two  different 
persons  at  the  same  time  Avould  not  be  a  bar  for  the  lar- 
ceny from  the  other.  There  is  only  one  fraudulent  in- 
tent, and  it  cannot  be  divided  at  the  convenience  of  the 
pleader  for  if  such  was  the  law  as  many  convictions  could 
be  had  as  there  were  different  owners.  To  say  the  most 
the  rule  of  the  Texas  courts  which  allows  the  subsequent 
trial,  appears  to  be  more  in  accordance  with  the  justice 
of  the  case,  for  it  might  be  argued  that  if  the  defendant 
was  acquitted  in  the  first  case  a  very  reprehensible  of- 
fense might  go  unpunished.^^ 

§  219.  Passing  forged  paper,  etc.  The  doctrine  of  the 
preceding  section  is  applicable  to  passing  or  uttering 
forged  notes,  bills,  or  of  counterfeit  coin.  Thus  where 
the  utterer  presented  at  the  teller's  window  four  different 
forged  bills  drawn  by  four  several  persons  the  acquittal 
oi-  conviction  for  the  one  is  a  h:\v  to  the  prosecution  for 

49— Fisher  v.  Com.  1  Bush.  (Ky.)  51— Wilson   v.  Stale,  45  Tex.   76, 

211;    Wilson   v.   State,  45   Tex.   76;  2;{    Am.    Rep.   602.   2   Am.   Cr.   Rep. 

Hudson   V.   State,  9  Tex.   App.   151.  :i5G;    Hudson  v.  State,  9  Tex.  App. 

50— State    v.    Hynuin,    117    N.    C.  151,  ;i5  Am.  Rep.  7:i2 ;  Alexander  v. 

749,  23  S.  E.  29;  Stale  v.  Lambert,  State.  21  Tex.  App.  406,  57  Am.  Rep. 

9  Nev.  321.  617,  17  S.  W.  139. 


Former  Jeopardy  187 

the  uttering  of  the  others.^^  But  where  the  same  act 
produced  different  offenses  such  as  grand  larceny  and 
petit  larceny  a  conspiracy  to  steal,  and  the  theft  of  the 
thing  conspired  about,  to  theft,  and  such  other  like 
offenses,  the  conviction  or  acquittal  of  the  one  is  not  a  bar 
for  the  other.  But  where  offenses  generally  are  so  closely 
connected  in  point  of  time  as  to  produce  a  connected  act 
then  it  is  one  offense  according  to  the  facts. 

§  220.  Cardinal  doctrine,  what  is.  It  is  a  cardinal  doc- 
trine that  if  the  evidence  in  the  second  prosecution  estab- 
lishes identically  the  same  in  the  point  of  intent,  time, 
place  and  circumstance  as  that  upon  the  first  indictment 
the  conviction  or  acquittal  is  a  bar  to  the  second  charge.^^ 
And  this,  too,  notwithstanding  the  object  upon  which  the 
second  offense  was  committed  is  a  distinct  object  from 
that  of  the  first.  It  is  sufficient  if  in  fact  the  proof  in  one 
is  essential  in  the  other.  As  where  two  persons  are  killed 
by  the  same  shot,  or  two  persons  stabbed  by  the  same 
thrust,  and  that  at  the  same  instance  of  time  or  so  nearly 
so  as  to  be  incapable  of  separation.^* 

§221.  Test  of  the  rules.  The  test  to  be  applied  in 
order  to  determine  whether  the  two  charges  are  the  same 

52— People  v.  Van  Curen,  5  Par-  54 — Sadberg  v.   State,   46   S.   W. 

ker  Cr.  Cas.  66;  State  V.  Benham,  7  620;    Spanell    v.    State     (Tex.    Cr. 

Conn.  414;  State  v.  Eggleslit,  41  la.  App.),  203  S.  W.  357,  2  A.  L.  E.  593  ; 

574,    20    Am.    Eep.    612,      See    this  Wright     v.     State,     17     Tex.     App. 

last  case  for  a  discussion  of  the  doc-  152;    Simco   v.   State,   9    Tex.   App. 

trine  particularly.     State   v.  Samp-  338;  see  Irvin  v.  State,  7  Tex.  App. 

son,  157  la.  257,  138  N.  W.  473,  42  78;    Dominick's   Case,  40   Ala.   680, 

L.  R.  A.  (N.  S.)  967.  91  Am.  Dec.  496;  Foster's  Case,  39 

53— Clem   v.   State,  42  Ind.   420,  Ala.  229;  Clemm  v.  State.  154  Ala. 

13  Am.  Eep.  369;   State  v.  Cooper,  12,  45  So.  212,  129  A.  S.  E.  17,  and 

1  Green  (N.  J.)  361;  State  V.  Shop-  aote;    State    v.    Douglas,    26    Nev. 

pard,  7  Conn.  541 ;  Hickory  v.  State,  196,  65  Pac.   802,  99  A.  S.  E.  688, 

23  Ind.  21;  State  v.  Damon,  2  Tyler  note  124  A.  S.  E.  637. 
381;  Ointzen  v.  State,  1  Tex.  App. 
447;  Hudson  v.  State,  9  Tex.  App. 
151;  Wilson  v.  State,  45  Tex.  76. 


188  Ckiminal  Law 

in  the  first  and  second  indictment  is  where  every  part  of 
a  criminal  act  may  be  alleged  in  a  single  count  of  the  in- 
dictment and  proved  under  it.  The  act  cannot  be  split 
into  several  different  crimes  and  a  separate  indictment 
sustained  upon  each.^^  If  the  facts  alleged  in  the  second 
indictment  are  such  that  if  proved  they  would  have  pro- 
cured a  legal  conviction  upon  the  prior  indictment,  under 
which  the  conviction  or  acquittal  has  taken  place  the 
same  will  be  a  bar  to  a  further  prosecution.^^ 

§222.  Arraignment.  It  is  an  established  rule  that 
when  a  jury  has  been  empaneled  and  sworn  in  a  court 
of  competent  jurisdiction  upon  an  information  or  an 
indictment  sufficient  in  form  and  substance  to  sustain  a 
conviction,  and  the  jury  has  been  charged  with  the  deliv- 
erance; and  all  legal  intermediate  proceedings  connected 
with  the  ''plea"  and  "arraignment"  having  been  en- 
tered, the  defendant  is  then  in  jeopardy,  and  when  such 
state  of  fact  is  shown  then  the  defendant  is  entitled  to  his 
discharge,  if,  however,  the  cases  are  in  other  respect 
the  same  transaction."  So  also  where  the  jury  is  unneces- 
sarily discharged  this  will  entitle  him  to  his  bar  to  a 
subsequent  indictment  involving  the  same  transaction. 
It  is  variously  held  dependent  upon  the  particular  statute 
whether  a  failure  to  plead  to  the  indictment  prior  to  the 
discharge  of  the  jury  will  operate  to  defeat  the  bar.^' 

55— Triplett  v.  Com.,  84  Ky.  196;  1072;   Simco  v.  State,  9  Tex.  App. 

Id.  1  S.  W.  84;   WillLims  v.  Com.,  338;     Ex    parte    Rodger,    10    Tex. 

78    Ky.    93,    Id.    11    S.    W.    210;  655;   Prince  v.  State,  19  Ohio  423; 

O 'Brian  v.  Com.,  9  (Bush.)  Ky.  333,  Hite  v.  State,  9  Yearg.  357. 

15  Am.  Rep.  715,   1   Am.  Cr.  Rep.  57— State  v.  Hays,  67  Iowa  27,  24 

520;  Cooley  V.  Con.  Limitation,  325;  N.    W.    575;    State   v.    Cassady,    12 

Huff  V.  a)m.,  42  S.  W.  907.  Kans.    550,    1    Am.    Cr.    Rep.    567; 

56— Durham    v.    People,   4   Scam.  Tate  v.  State,  53  Miss.  439,  Id.  24 

172;    Dickoy    v.    Com.,    17    Pa.    St.  Am.    Rep.    709;    Prince's    Case,    36 

126,    55    Am.    Dec.    542;    Dominick  Miss.  613. 

V.  State,  40  Ala.  680,  91  Am.  Doc.  58— Yeargcr    v.    State,    Tox.    Cr. 

49fi;    State    v.   Vinco,   34   La.    Ann.  Hep.,  41  S.  W.  621;  Link  v.  State,  3 


Former  Jeopardy  189 

§  223.  Discharg-e  of  jury.  What  constitutes  the  un- 
necessary discharge  of  the  jury  which  authorizes  the 
plea  of  jeopardy  is  a  question  variously  decided.  One 
court  has  laid  the  rule  as  follows : ' '  We  are  unable  to  say 
that  a  jury  after  they  are  charged  can  be  discharged, 
and  the  prisoner  tried  a  second  time  for  the  following 
causes  only:  1.  The  consent  of  the  prisoner.  2.  Illness 
of  one  of  the  jury,  the  prisoner  or  the  court.  3.  The 
absence  of  one  of  the  jurymen  or  4.  The  impossibility 
of  the  jury  agreeing  to  a  verdict.  Beyond  these  we  ap- 
prehend the  courts  have  no  right  to  go.  It  is  said  that 
it  is  a  matter  of  discretion  with  the  court  to  discharge 
the  juiy  whenever  it  may  think  it  consistent  with  the 
ends  of  justice.  It  is  true  that  it  is  a  matter  of  discre- 
tion but  in  the  language  of  Junius  it  is  a  legal  discretion, 
and  must  be  exercised  in  conformity  to  known  rales. ' '  ^^ 
Arbitrary  discretion  is  but  another  name  for  caprice  or 
favor.  Under  its  exercise  the  boldest  may  tremble,  and 
the  free  made  slaves.  These  four  causes  in  a  general 
sense  may  be  said  to  comprehend  all  the  reasons  why  the 
discharge  of  a  jury  before  a  verdict  would  not  place 
the  defendant  in  jeopardy  and  exempt  him  from  a  second 
trial.  Thus  where  it  is  discovered  by  the  state  after  an 
empanelment  of  the  jury  and  the  plea  of  the  defendant 
that  one  of  the  jurors  will  not  convict  because  of  his 
peculiar  ideas  concerning  the  infliction  of  imprisonment 
as  a  punishment,  and  a  nolle  prosequi  entered  it  is  held 
that  this  is  an  unnecessary  discharge  of  the  jury  before 
verdict  and  that  he  was  entitled  to  his  acquittal.^"  So 
again  in  the  case  of  the  juror  who  after  being  sworn 
upon  the  case  arose  and  informed  the  court  that  he  had 

Heisk.  252;  White  v.  State,  7  Tex.  Ind.  215;  Gruber  v.  State,  3  W.  Va. 

App.  374;  U.  S.  v.  Riley,  5  Blatchf.  699;    Joy    v.    State,    14    Ind.    139; 

204;  Fed.  Cas.  No.  16164.  People  v.  Case,  48  Cal.  323;  Grogan 

59 — McKee  v.  State,  21  Am.  Dec.  v.    State,   44  Ala.    9;    McKinnie   v. 

499,  Id.  Bailey  Law,  651;    see  Mc-  State,  26  Ark.  334. 
Fadden  v.  Com.,  23  Pa.  St.  12,  62  60— McKee    v.    State,    1    Bailey 

Am.  Dec.  308;  Morgan  v.  State,  13  Law,  251,  21  Am.  Dec.  499. 


190  Criminal  Law 

been  a  member  of  the  grand  jury  which  found  the  indict- 
ment against  the  defendant,  and  the  court  upon  its  own 
motion  and  against  the  objection  of  the  defendant,  dis- 
charged the  jury,  and  filled  his  place  with  another,  and 
proceeded  with  the  trial,  the  court,  upon  appeal  held 
this  to  be  in  violation  of  the  defendant's  constitutional 
right  not  to  be  twice  tried  for  the  same  offense.^^  So, 
also,  where  the  jorisoner  is  on  trial  under  an  indictment 
for  manslaughter,  and  the  court  with  the  prisoner's 
consent  discharges  the  jury  because  the  court  believes 
the  evidence  shows  a  murder,  this  is  jeopardy.®* 

§  224.  Failure  to  agree.  Where  the  jury  fails  to  agree 
they  may  be  discharged  and  it  will  not  militate  against 
the  state's  right  to  again  try  the  defendant  upon  the 
same  indictment.  Upon  the  proposition  whether  the 
disagreement  of  the  jury  will  authorize  their  discharge 
without  the  defendant's  consent,  and  in  the  absence  of 
the  absolute  necessity  for  their  discharge  will  establish 
jeopardy  there  are  numerous  conflicting  authorities.®^ 

The  earlier  decisions  seem  to  support  the  doctrine  that 
the  jury  can  not  be  discharged  except  upon  the  grounds 
of  absolute  necessity  but  the  latter  and  now  the  general 
conceded  rule  seems  to  be  that  the  j^ry  may  be  discharged 
when  there  is  no  probability  of  them  agreeing  without 
the  consent  of  the  defendant,  and  that  such  discharge 
will  not  operate  as  a  jeopardy.®* 

§  225.  Waiver  of  rights.  Many  rights  guaranteed  by 
this  law  are  dependent  upon  the  diligence  in  declaring 

61 — O 'Brian    v.    Coin.,    9    Bush.  derson  v.  State,  174  Ala.  11,  56  So. 

(Ky.)  333,  15  Am.  Eep.  715.  998,  Ann.  Cas.  1914  B  760;   Dreyer 

62— Kunckler   v.   People,  48   Cal.  v.  People,  188  III.  40,  58  N.  E.  620, 

331.  58  L.  R.  A.  869;  In  re  Asher,  130 

63— Com.   V.   Cook,   6   Scrg.   &   R.  Mich.  540,  90  N.  W.  418,  57   L.  R. 

577,  9  Am.  Dec.  465.  A.  806;   McFaddcn  v.  Com.,  23  Pa. 

64 — State   V.   Moor,   12   Am.   Dec.  8t.  12,  62  Am.  Dec.  308;    Oborn  v. 

547,  and  note  and  crises  cited;   An-  St.-itc,  143  Wis.  249,  126  N.  W.  737. 


Former  Jeopardy  191 

and  maintaining  them.  The  principle  is  a  common  one 
and  recognized  in  all  departments  of  the  law,  that  which 
is  not  expressly,  or  in  some  instances  impliedly  con- 
tended for  upon  issue  joined  is  taken  by  the  antagonist, 
as  abandoned  or  waived.  There  is  no  sounder  doctrine 
or  a  more  positive  rule  than  parties,  plaintiff  or  defend- 
ant to  a  cause  pending  for  adjudication  may  waive  or 
abandon  any  right  they  may  have;  and  this  may  be  ex- 
pressly or  impliedly  done.  This  doctrine  is  not  confined 
to  civil  causes  but  is  applicable  to  criminal  causes  as  well. 
Therefore,  in  some  instances  the  defendant  in  a  criminal 
case  may  waive  a  constitutional  guarantee.  The  right 
to  waive  a  juiy  in  a  trial  for  a  felony  seems  to  be  an 
exception  to  the  general  rule.^^  But  the  right  to  waive 
the  guarantee  that  ''no  person  shall  be  twice  put  in  jeop- 
ardy of  life  or  limb,"  is  allowed,  it  appears,  upon  the 
theory  that  such  waiver  is  for  the  defendant's  benefit. 

§  226.  At  common  law.  It  must  be  borne  in  mind  that 
the  right  not  to  be  twice  tried  for  the  same  offense  was 
a  doctrine  of  the  common  law,  and  some  writer  has  put 
it  that  it  was  embedded  in  the  common  law.  So  our  con- 
stitutional declaration  that  "no  person  should  be  twice 
placed  in  jeopardy  of  life  or  limb"  is  an  express  adop- 
tion of  the  common  law.  So  this  again  brings  us  to  refer 
to  a  rule  of  the  English  courts  as  formerly  practiced  as 
governing  the  trial  of  criminal  causes.  As  we  have  al- 
ready seen  the  defendant  was  not  allowed  a  new  trial, 
when  he  was  convicted  but  the  error  of  the  trial  was 
supposed  to  be  corrected  by  the  grant  of  pardon,  hence 
there  could  not  be  any  waiver  upon  the  ground  of  asking 
or  consenting  to  a  new  trial.  But  it  appears  that  the  de- 
fendant in  the  English  courts  might  obtain  a  writ  of 
error  to  the  Queen  Bench  Division,  and  when  the  judg- 
es—Mapes  V.  state,  13  Tex.  App.  App.  664;  Brown  v.  Webber,  6 
85 ;  may  waive  a  jury  in  a  misde-  Cusli.  560. 
meanor;    Rosbery  v.   State,   1   Tex. 


192  Criminal  Law 

ment  of  the  lower  court  was  reversed  it  placed  the  de- 
fendant in  the  same  position  as  he  was  before  the  trial  in 
the  assize  or  quaiier  sessions.  So  it  is  apparent  that 
he  might  waive  the  jeopardy  by  permitting  the  reversal 
of  the  cause.®* 

§  227.  In  America.  So,  also,  we  have  seen  that  the 
rule  in  the  American  states  is  generally  that  the  state 
has  no  right  of  appeal  from  a  judgment  or  acquittal 
upon  a  valid  indictment  in  a  court  of  competent  jurisdic- 
tion. All  errors  committed  by  the  judge  against  the  com- 
monwealth are  not  subject  to  review  by  appeal  or  other- 
wise at  the  instance  of  the  commonwealth,  and  an  acquit- 
tal is  forever  a  bar  to  a  further  prosecution."  But 
where  the  defendant  is  convicted  he  may  at  his  option 
point  out  to  the  court  why  the  conviction  should  not 
stand,  and  he  may  appeal  and  in  case  a  new  trial  is 
granted  he  is  accounted  as  having  waived  his  constitu- 
tional right  to  be  twice  tried  for  the  same  crime.  But  so 
long  as  his  case  is  not  reversed  or  a  new  trial  granted  he 
may  invoke  his  former  conviction  as  jeopardy 


68 


§  228.  Rig^hts  that  cannot  be  waived.  There  are  other 
rights  of  the  defendant  incident  to  his  trial  which  can 
not  be  taken  away  from  him  without  his  consent.  Thus 
in  all  cases  of  felony  he  is  entitled  to  be  present  at  the 

66 — State    v.    McKee,    1    Baiky  case  for  full  discussion  of  the  rijrlit 

Law,    651,    21    Am.    Dec.    499,   and  of  the   state  io   appeal   in  a  crim- 

note;  Johnson  v.  State,  1  Okla.  Cr.  inal     case.       Grafton     v.      United 

321,  97  Pac.  1059,  18  Ann.  Cas.  300;  States,   206   U.   S.   333,   51   L.   Ed. 

Younger  v.  State,  2  W.  Va.  579,  98  1084;    Ostwalt  v.   State,  118  N.   C. 

Am.  Dec.  791;   State  v.  Martin,  30  1208,  24  S.  E.  660,  32  L.  R.  A.  396: 

Wis.    216,    11    Am.   Rep.    567;    Mc-  State  v.  Hotel  McCrery  Co.,  68  W. 

Guinn  v.  State,  46  Neb.  427,  65  N.  Va.    130,   60    S.   E.   472,   Ann.    Cas. 

W.  46,  50  A.  S.  R.  617.  1912  A   966.      In   this   case   an   ap- 

67 — State  V.  Rook,  61  Kan.  382,  peal  wns  allowed  on  the  application 

.')9  Pac.  653,  49  L.  R.  A.  186;  People  of  the  state. 

V.  Minor,  144  111.  308,  33  N.  E.  40,  68— People  v.  Webb,  38  Cal.  467. 

lit    I,.    H.   A.  342.     See  note  in  this 


Former  Jeopardy  193 

time  and  during  his  trial,  and  no  proceedings  in  refer- 
ence thereto  can  in  any  case  be  conducted  in  his  absence 
except  he  give  his  express  consent  thereto.^^  The  gov- 
ernment after  the  defendant  has  been  placed  upon  his  trial 
upon  a  sufficient  indictment  and  in  a  court  of  competent 
jurisdiction  is  not  permitted  to  enter  a  nolle  prosequi, 
without  the  consent  of  the  defendant  thereto.  Such  a 
disposition  without  his  consent  is  a  jeopardy.''®  Nor  can 
the  court  discliarge  the  jury  except  for  a  necessary  cause, 
not  even  one  juror  unless  the  defendant  gives  his  consent 
thereto.  The  fact  that  the  verdict  of  the  jury  was  ren- 
dered while  the  defendant  was  absent  from  the  place  of 
trial  will  be  regarded  as  without  his  consent  and  jeopardy 
will  be  complete."''^ 

§229.  Implied  consent  to  waiver  sufficient.  The  de- 
fendant's consent  need  not  be  expressly  obtained  in  oraer 
to  defeat  the  jeopardy  but  an  implied  consent  or  waiver 
is  sufficient.  Thus  if  the  defendant  should  act  in  such  a 
manner  or  under  such  circumstances  as  to  reasonably 
indicate  that  he  agreed  to  the  action  of  the  court  he  will 
be  taken  as  having  consented  thereto.''^  It  is  a  familiar 
rule  that  preliminary  pleadings,  things  incident  to  ar- 
raignment of  the  defendant  are  taken  as  having  been 
properly  made  and  as  the  case  may  be  entered  and  a 
failure  to  object  to  the  same  will  be  taken  as  waived. 

§  230.  Authority  of  council.  The  authority  of  defend- 
ant's  counsel  to  waive  the  defendant's  right  to  hav^ 
the  jury  remain  together  till  after  verdict  is  denied  in 

69— Escarno    v.    State,    16    Tex.  72— Stewart    v.    State,    15    Ohio 

App.  85.  St.   155;    Carroll   v.   State,    50   Tex. 

70— Jones  v.  State,  55  Ga.   625;  App.  485,  98  S.  W.  859,  123  A.  S. 

Kohlheimer  v.  State,  39  Miss.  548,  E.  851,  14  Ann.  Gas.  426.     A  vexr 

77  Am.  Dec.  689.  full  and  complete  note  on  all  phasfla- 

71 — Roberts  v.    State,    14   Ga.   8,  the  text  is  contained  in  note.    Stone 

58    Am.    Dec.    528,    and    note,    full  v.  State,  135  A.  S.  E.  72. 
discussion. 

C.  L.— 13 


194  Criminal  Law 

the  Texas  courts.''''  The  defendant  himself  may,  how- 
ever, consent  to  the  jury's  separation.'''*  In  the  courts  of 
Georgia  the  judge  may  allow  the  jury  to  separate  for  the 
purpose  of  attending  to  things  of  a  personal  necessity 
such  as  attending  to  a  call  of  nature  without  the  consent 
of  the  defendant.'''^  It  is,  however,  held  by  the  courts  of 
Texas  that  the  defendant  cannot  by  his  consent  waive 
the  right  that  the  jury  be  kept  together  where  the  jurors 
so  separating  are  not  accompanied  by  an  officer.'''®  Nor 
can  he  waive  his  right  to  be  present  when  a  final  judg- 
ment is  rendered  against  him  even  where  the  same  is  in 
the  nature  of  a  nunc  pro  tunc.''"'^ 

§  231,  Summary.  Jeopardy  may  be  waived  as  a  gen- 
eral rule  to  the  separation  of  the  jury,  and  to  the  right 
to  be  supplied  with  a  copy  of  the  indictment  and  copy 
of  the  list  of  jurors.  The  defendant  in  a  criminal  prose- 
cution under  the  provisions  of  the  constitution  and  the 
statutes  of  some  of  the  states  is  required  to  be  present 
at  the  rendition  of  the  verdict.  But  in  the  absence  of 
such  provisions  there  is  no  rule  of  the  common-law  that 
prohibits  his  right  to  waive  his  presence.  Some  constitu- 
tions and  statutes  provide  that  it  is  necessary  for  the 
defendant  to  be  present  at  the  formation  of  the  jury,  that 
is  the  courts  have  construed  such  provisions  to  mean 
that  the  provisions  could  not  bo  waived.'''' 

§  232.  Nolli  prosequi.  The  general  rule  is  that  a  nolli 
prosequi  is  not  a  l)ar  lo  a  subseiiiUMit   i)r()S(H*ntion  if  it 

73 — Stirling    v.    IState,    15     Tox.  iiig   section.      Also    I'coplc    v.    Hig- 

App.  249.  gans,   59  Cal.   357;   Spear  v.   State, 

74— Brown  v.  State,  38  Tex.  482.  15    Ga.    562;     Willuims    v.    Co.    2 

75— Neal  v.  State,  64  Ga.  275.  Gratt,  44   Am.  Dec.  408;   Loper  v. 

7«>— English     v.    St-ito,    28     Tox.  Slate,  3  Miss.  429;   Stone  v.  State, 

A  pp.  500.  mo  Ala.  91,  40  So.  823,  135  A.  S.  R. 

77— Majx's  V.  Stiito.  1:5  Tex.  Apj).  <)9,   and    note;    Stale   v.   White,    71 

85.  Kan.  356,  80  Pac.  589,  6  Ann.  Gas. 

78 — See  antlioritics  in  the  preeotl-  132. 


Former  Jeopardy  195 

is  entered  before  the  empanelment  of  the  jury  in  the  case, 
but  is  otherwise  if  the  jury  is  empaneled.  After  issue 
joined  or  the  empanelment  of  a  juiy  and  a  plea  of  not 
guilty  a  nolli  prosequi  entered  by  the  prosecution  without 
the  consent  of  the  accused  is  a  bar  to  a  subsequent  prose- 
cution.'*  Jeopardy  does  not  begin  until  the  jury  has 
been  empaneled  and  swom.^o  Where  a  party  stands 
charged  with  several  violations  of  the  same  kind,  a  nolli 
l)rosequi  will  not  bar  others  not  dismissed."  A  dismissal 
of  the  jury  on  account  of  sickness  of  one  of  the  jurors 
without  the  consent  of  the  defendant  is  not  jeopardy.^" 
In  Texas  the  court  cannot  discharge  the  jury  without  the 
consent  of  the  defendant.*^  Where  there  is  a  hung 
juiy  or  where  there  is  a  reversal  of  the  judgment  of  the 
lower  court  on  appeal  the  former  conviction  is  not  a 
jeopardy.^* 

79— Franklin  v.   State    (Ga.),   11  82— People  v.  Eoss,  85  Oal.  383; 

S.  E.  876,  85  Ga.  570;  Com.  v.  Pin-  Welsh  v.  State,  126  Ind.  71,  25  N. 

chase,  2  Pick.  521;  People  v.  Good-  E.  883. 

win,  18  Johns.  187;  U.  S.  v.  Perez,  83— Eudder    v.    State,    15    S.    W. 

9  Wh.  579;   Mount  v.  Com,  2  Duv.  717;  Jones  v.  Com.,  86  W.  Va,  740, 

(Ky.)    93;    Com.    v.   Bockman,    105  10  S.  E.  1001;  Ellis  v.  State,  25  Fla! 

Mass.  53;  People  v.  Cook,  10  Mich.  783;  Eobinson  v.  Com.,  88  Ky.  386. 

64;    Girard   v.   People,    3    111.    362;  84— State  v.  Battle,  7  Ala.  259; 

People  V.  Tyler,  7  Mich.  161;  State  Wright  v.  State,  5  Ired.  290;  State 

V.  Brooks,  3  Humph.  70.  v.    Eeed,    26    Conn.    202;    State    v. 

80— .State   v.   Paterno,   9    So.   442  Green,  16  la.  239;  State  v.  Eedman, 

(La.  Ann.).  17    i-^    239;    Dobbins   v.    State,    14 

81—0  'Brian  v.  State,  91  Ala.  25,  O.   St.   493 ;    Coleman   v.   Tennessee, 

8  So.  560.  97  u.  S.  509-521. 


CHAPTER  X 


CRIMINAL  PKESUMPTIONS 


§  233.  Presumptions  part  of  crimi- 
nal law. 

§  234.  What  are  presumptions  of 
law. 

§  235.  Presumptions  how  created. 

§  236.  Criminal  trial. 

§  237.  Presumption  defined. 

§  238.  Eebuttable   presumptions. 

§  239.  The    burden   of   proof. 

§  240.  Of  the  prima  facie  case. 

§  241.  Presumptions  of  fact. 

§  242.  All  persons  presumed  to  do 
those  things  required  by 
law. 

§  243.  Corpus  delicti. 

§  244.  Defendant 's  duties. 

§  245.  Presumption  as  to  conspira- 
tors. 

§  246.  Presumptions  as  to  posses- 
sion of  recently  stolen 
property. 

§  247.  Further   considered. 

§  248.  Presumptions  as  to  those  ab- 
senting themselves  beyond 
the   state. 

§  249.  Presumption  of  continuance 
of  life. 

§  250.  Presumptions  as  to  married 
women. 

§  251.  Sanity  is  presumed. 

§  252.  All  persons  are  presumed  to 
be  normal  as  to  their  phy- 
sical condition. 

§  253.  Presumption  of  the  probable 
results  of  a  man's  act. 


§  254.  Presumption    as    to    persons 

under    the    age    of    seven 

years. 
§  255.  Presumptions   as   to    females 

under  the  age  of  ten. 
§  256.  Taking  property   openly  and 

notoriously. 
§  257.  All  persons  are  presumed  to 

know  the  law. 
§  258.  Malice  is  presumed  from  the 

use  of  a  deadly  weapon. 
§  259.  Presumption  where   one   dies 

more    than   a    year   and   a 

day  from  wound. 
§  260.  Defendant  is  presumed  to  be 

of  good  character. 
§  261.  Conflict   of   presumptions. 
§  262.  Defendant     fleeing     country, 

presumption  of. 
§  263.  Defendant 's  right  to  explain. 
§  264.  Presumption  from  the  fabri- 
cation of  evidence. 
§  265.  Courts  are  presumed  to  take 

notice,  etc. 
§  26G.  Presumption    of    guilt    from 

judicial  confession, 
§  267.  Dying    declaration    presumed 

to  be  true. 
§  268.  Presumption  as  to  the  testi- 
mony of  an  accomplice. 
§  269.  Presumption    as    to    officers, 

eie. 


§233.  Presumptions  part  of  criminal  law.     Wo  think 
tliat  it  would  be  a  benefit  to  have  n  chapter  on  presump- 

196 


Criminal  Presumptions  197 

live  evidence  as  applied  to  criminal  cases  in  a  book  of 
this  character.  It  is  for  the  reason  that  if  the  questions 
of  presumptive  evidence  are  gathered  together  and 
placed  in  compact  form  it  would  be  an  easier  matter  to 
find  them.  Usually  the  various  presumptions  are  found 
scattered  through  books  on  evidence  and  the  searcher 
takes  up  more  or  less  time  finding  them.  The  purpose 
here  is  not  attempted  to  differently  state  or  to  embellish 
these  rules  for  the  law  books  are  full  of  these  presump- 
tions. In  the  succeeding  pages  of  this  chapter  we  shall 
attempt  to  apply  these  rules  under  the  subdivisions  of 
Presumptions  of  Law  and  Presumptions  of  Fact,  Pre- 
sumptions conclusive  or  irrebuttable,  and  to  such  as  are 
rebuttable. 

§234.  What  are  presumptions  of  law.  Presumptions 
of  law  are  those  universal  conclusions  dictated  by  justice, 
by  the  laws  of  nature,  or  such  as  are  found  by  experience 
to  be  the  result  arising  from  the  relation  of  certain 
things. 

The  infallibility  of  such  rules  are  demonstrated  by  the 
uniformity  with  which  certain  results  follow,  a  given 
state  of  conditions  and  relations.  The  law  adopts  these 
conclusions  because  any  other  conclusion  would  be  incon- 
sistent with  those  known  and  universally  recognized  in 
the  rules  of  justice  and  the  usual  experiences  of  men. 

A  part  of  these  rules  will  some  time  prove  to  be  un- 
true, but  the  law  nevertheless  regards  them  as  being  abso- 
lute, or  at  least  relatively  true  because  the  exception  is  so 
greatly  in  disproportion  to  the  general  experience.  Con- 
clusions or  presumptions  of  this  character  do  not  have 
exclusive  application  to  the  law  but  are  recognized  as 
truths  in  philosophy  and  other  sciences.  They  are  uni- 
versal truths  and  fundamental  principles  and  acquire 
no  particular  force  because  they  are  called  presumptions 
of  law,  for  by  any  other  name  the  truth  would  remain. 

All  men  are  not  sane,  but  the  real  fact  is  that  a  large 


198  Criminal  Law 

per  cent  of  all  persons  are  sane  (based  upon  the  experi- 
ence and  the  nature  of  the  human  race),  so  the  law  as- 
sumes it  to  be  a  fact  universal  in  its  application  that  all 
persons  are  sane. 

§  235.  Presumption,  how  created.  Legal  presumptions 
or  presumptions  of  law  are  nothing  more  than  rules  of 
law  established  by  the  common  law,  and  by  the  decision 
of  the  courts  declaring  the  law  upon  a  given  state  of  fact 
found  by  experience  to  be  true  and  just  and  such  others 
as  are  declared  to  be  true  by  positive  statute. 

Thus  the  presumption  that  all  men  know  the  laws  of 
the  country  where  they  live  finds  its  reason  and  authority 
in  one  universally  acknowledged  fact  (this  being  found 
by  the  courts  after  a  long  experience  with  men  and  com- 
mercial communities),  that  any  other  rule  would  result 
in  incalculable  confusion  and  injustice  in  the  administra- 
tion of  the  law.  So  the  presumption  that  all  persons 
intend  the  ordinary  and  usual  consequences  of  their, 
acts  is  declared  to  be  time  because  exiDcrience  teaches 
that  men  usually  act  from  motive  and  an  intent  to  accom- 
plish a  desired  end. 

The  courts  adopt  these,  together  with  others,  because 
experience  teaches  that  tlie  highest  degree  of  credit  can 
be  given  to  them. 

A  legislative  or  statutory  presumption  is  where  the 
legislative  will  declare  a  thing  to  be  true  under  all,  or 
under  some  specific  state  of  circumstances.  Thus  where 
tlie  statute  provides  that  a  criminal  offense  shall  not  be 
))i-()S('cute(l  unless  ;iii  iiidicinient  or  other  process  pro- 
vick'd  by  law  had  not  been  presented  within  a  specified 
time  the  right  to  prosecute  has  been  barred  for  tlie  rea- 
son that  it  is  presumed  by  the  lapse  of  time  there  was  no 
crime.  This  presents  an  absolute  legal  trutli,  notwith- 
standing the  crime  in  reality  was  committed.  Again 
wiicic  tlie  statute  ))i'()\id('s  that  wlicn  a  person  has  occu- 
pied a  tia<'l  nl'  h-ind  tor  .1  |)eiio(l  of  Im  yeai's  IVcm'  from 
the  chiini  ot'  otiiers  is  jjresnined  t<»  ha\'e  the  tilh»  to  tlie 


Criminal  Presumptions  199 

land  presents  an  absolute  legal  truth,  notwithstanding 
that  another  person  owns  the  title  intact.  These  statutes 
of  limitations  are  absolute  and  conclusive  presumptions 
because  they  are  declared  by  law  to  be  universally  true. 
The  reason  that  may  prompt  the  enactment  have  nothing 
to  do  with  the  legal  effect  of  the  presumption.  The  rea- 
son may  or  may  not  justify.^ 

§  236.  Criminal  trial.  In  the  course  of  a  criminal  trial 
there  of  course  are  to  be  found  many  iniles  of  evidence  ap- 
plicable to  both  civil  and  criminal  causes.  It  shall  be 
our  intention  to  point  out  those  rales  which  have  to  do 
with  the  criminal  trial  only. 

§  237.  Presumption  defined.  A  conclusive  and  irrebut- 
table presumption  is  that  absolute  and  imperative  trath 
which  does  not  admit  of  doubt,  the  verity  of  which  admits 
of  no  contradictory  evidence  nor  does  it  admit  of  excep- 
tions. It  needs  no  evidence  to  strengthen,  nor  will  any 
evidence  be  admitted  to  deny  it.  It  is  a  fundamental 
principle  of  the  law,  and  in  a  strict  technical  sense  is  not 
a  rule  of  evidence  but  a  rule  of  law. 

In  the  administration  of  the  criminal  law  verj^  few  of 
this  class  of  presumptions  are  met  with.  Thus  the  pre- 
sumption that  all  persons  under  the  age  of  seven  years  is 
incapable  of  forming  a  criminal  intent  is  of  this  class.'' 
And  so  also  the  presumption  that  every  person  knows 
the  laws  of  his  country  though  these  have  some  excep- 
tions. Thus,  that  a  boy  under  the  age  of  fourteen  years 
is  presumed  to  be  incapable  of  committing  the  crime 
of  rape;  that  one  absenting  himself  beyond  the  limits  of 
his  country  for  the  period  of  seven  years  is  dead;  and  in 
the  case  of  a  married  woman  at  the  common  law  is  pre- 
sumed to  be  under  the  coercion  of  her  husband  w^here  she 
commit  a  felony  in  his  immediate  presence.    This  at  com- 

1—1   Greenl.  sec.   14  to  25;   Par-  2— See  sec.  182,  this  work  and  au- 

sons    cout.    Chap,    limitations.      See       thorities. 
Statutes  of  Limitations. 


200  Cri:mixal  Law 

moil  law  appears  to  have  had  the  force  of  absolute  law, 
but  it  is  now  regarded  as  rebuttable. 

§  238.  Rebuttable  presumption.  A  rebuttable  presump- 
tion is  in  that  class  of  legal  conclusion  which  may  be 
overcome  by  proof  to  the  contrary.  Upon  a  certain  state- 
ment or  condition  of  facts  the  law  imposes  prima  facie 
verity,  and  in  the  absence  of  evidence  to  the  contrary 
the  prima  facie  conclusion  becomes  an  absolute  conclu- 
sion of  law.^  These  rules  are  created  by  the  law  for 
the  better  securing  the  public  welfare  and  reaching  a 
higher  degree  of  certainty  in  the  administration  of 
justice. 

§  239.  The  burden  of  proof.  AVhcn  the  law  invokes 
these  conclusions  in  favor  of  one  party  the  other  is  then 
required  to  overcome  it  by  show^ing  that  the  particular 
case  is  an  exception  or  that  as  a  matter  of  fact  the  con- 
clusions reached  are  untrue.  Any  competent  evidence 
may  be  offered  in  refutation  of  such  conclusion.  Such 
conclusion  shifts  the  burden  of  the  proof. 

§  240.  Of  the  prima  facie  case.  The  evidence  must  be 
strong  enough,  of  probative  force  sufficient  to  convince 
the  court  or  the  jury  that  the  prima  facie  case  had  been 
disproved.  If  no  evidence  whatever  is  oifered  in  rebut- 
tal to  the  prima  facie  case  then  the  court  or  juiy  would 
be  compelled  to  find  the  presumption.  Thus  to  illustrate: 
In  a  suit  upon  a  promissory  note  the  same  having  been 
offered  in  evidence  a  prima  facie  presumption  is  created 
that  the  same  is  genuine  and  recites  the  truth  on  its  face. 
Thus  if  no  ])roof  is  offered  to  (lis]irove  its  recitals  the 
court  or  jury  is  bound  to  adopt  the  conclusion  that  the 
execution  of  the  note  and  the  recitals  therein  arc  true. 
Again  if  recently  stolon  i)roporly  is  traced  to  A  the  law 

.3—1   Grcoiil.   3.1. 


Criminal  Presumptions  201 

raises  the  prima  facie  conclusion  that  the  possession  is 
illegal  and  the  burden  shifts  to  A  to  explain  his  posses- 
sion. If  lie  fails  to  do  this  then  the  conclusion  is  that 
the  possession  was  illegal. 

§241.  Presumptions  of  fact.  The  presumption  is  of 
a  greater  or  less  probative  force  as  the  conclusions 
reached  are  probable  or  improbable.  Mr.  Greenleif  says : 
''That  presumptions  of  fact  are  mere  arguments,  the 
major  premise  of  which  is  not  a  rule  of  law."  They 
are  not  fixed  rules  within  themselves  but  are  mere  de- 
ductions and  inferences,  and  are  more  or  less  convincing, 
accordingly  as  they  impress  themselves  upon  the  under- 
standing. They  differ  from  presumptions  of  law  in  this, 
that  the  latter  are  fixed  and  permanent  rules  which  form 
a  part  of  the  fundamental  principles  of  the  law,  the  for- 
mer are  inferential  conclusions  drawn  from  the  proof  of 
the  existence  of  other  facts  in  the  particular  case.  Thus 
suppose  A  is  charged  with  the  murder  of  B,  and  imme- 
diately after  the  killing  A  is  found  with  blood  on  his  left 
hand  and  in  the  chamber  where  B  was  killed  a  bloody 
imprint  of  the  fingers  and  palm  of  the  right  hand  is  left, 
then  the  inference  that  A  made  the  imprint  would 
be  of  very  little  probative  force.  If,  however,  it 
was  shown  that  both  of  A's  hands  were  bloody  then  a 
different  degree  of  probability  would  be  drawn  from 
these  circumstances,  and  the  conclusion  would  be  more 
certain  that  A  killed  B,  or  was  there  at  the  time  and 
participated  in  it. 

§242,  All  persons  presumed  to  do  those  thing's  re- 
quired by  law.  A  large  percentage  of  the  people  conform 
to  and  comply  with  the  commands  and  prohibitions  of 
the  law.  Experience  and  observation  teach  that  only 
a  few  persons  out  of  a  great  many  commit  crimes,  hence 
a  cardinal  principle  of  the  law  is  that  all  persons  are  pre- 
sumed to  be  innocent  when  charged  with  crime.    This  is 


1'02 


Criminal  Law 


a  rebuttable  presumption  and  to  overcome  it  a  very  high 
degree  of  proof  is  required.  The  probability  of  innocence 
is  so  great  that  the  law  requires  the  rebutting  evidence 
to  be  so  convincing  as  to  force  its  establishment  beyond 
a  reasonable  doubt.* 

§  243.  Corpus  delicti.  In  trials  for  murder  the  corpus 
delicti  the  unlawful  fact  of  the  killing  being  proven,  the 
presumption  of  innocence  is  thereby  overcome,  and  then 
the  burden  of  proof  shifts  to  the  accused  to  show  circum- 
stances of  extenuation  and  explanation.  When  the  un- 
lawful killing  is  traced  to  the  defendant  then  this  is  suffi- 
cient to  establish  the  murder  and  the  fact  of  malice  is 
presumed.^ 


§  244.  Defendant's  duties.  The  government  is  required 
to  create  a  prima  facie  case  of  guilt,  and  when  this  is 
done  the  defense,  if  any,  devolves  upon  the  defendant.^ 


4—3  Greenl.  Ev.  29;  Eoberton  v. 
State,  9  Tex.  App.  209;  Blocker  v. 
State,  9  Tex.  App.  279;  Wallice 
V.  State,  9  Tex.  App.  299;  Smith 
V.  State,  9  Tex.  App.  150;  Haiues  v. 
State,  9  Tex.  App.  313;  Reed  v. 
State,  9  Tex.  App.  472;  Giles  v. 
State,  6  Ga.  276;  West  v.  State,  76 
Ala.  98;  Oreman  v.  State,  5  Sw. 
(Ark.)  558;  State  v.  Reede  (Del.), 
15  Alt.  r  968;  Watts  v.  People,  126 
111.  9,  18  N.  E.  340,  126  111.  9; 
Guiteg  V.  State,  63  Ind.  278. 

5 — Fahnestock  v.  State,  23  Ind. 
231;  State  v.  Vincent,  24  la.  570; 
Perry  v.  State,  44  Tex.  473;  State 
V.  Willis,  63  N.  C.  26;  People  v. 
McCarty,  110  N.  Y.  309;  Territory 
V.  McAndrews,  3  Mont.  148;  Barcus 
V.  State,  49  Miss.  17,  19  Am.  Rep. 
125,  1  Am.  Or.  Rep.  249;  Com.  v. 
WchHtor,  59  Mass.  295;  State  v. 
BriHcoo,  .'!0  La.  Ann.  433;  Miirphcy 
V.    J'coplc,   ;',7    111.   4  17;    Wharton   v. 


State,  73  Ala.  366;  People  v.  Rolin, 
63  Cal.  421;  State  v.  Dillon,  38  N. 
W.  535,  74  la.  653;  State  v.  Davis, 
50  S.  C.  405,  27  S.  E.  905,  62  A.  S. 
R.  837;  Mann  v.  State,  124  Ga.  760, 
53  S.  E.  324,  4  L.  R.  A.  (N.  S.) 
934;  State  v.  Trivas,  32  La.  Ann. 
1086,  36  Am.  Rep.  293;  Brown  v. 
State,  98  Miss.  786,  54  So.  305,  34 
L.  R.  A.  (N.  S.)  841;  State  v. 
Bowles,  146  Mo.  6,  47  S.  W.  892, 
69  A.  S.  R.  598. 

6— Billard  v.  State,  30  Tex.  367, 
94  Am.  Dec.  317  and  note:  State  v. 
Ilaxsie,  15  R.  I.  1,  2  A.  S.  R.  838; 
Tiffany  v.  Com.,  121  Pa.  St.  165,  6 
A.  S.  R.  775;  Trumbell  v.  Territory, 
3  Wyo.  280,  21  Pac.  1081,  6  L.  R. 
A.  384;  State  v.  Dcschamps,  42 
La.  Ann.  567,  7  So.  703,  21  A.  S.  R. 
392;  Rccd  v.  State,  50  Ga.  556; 
State  V.  Thomas,  98  N.  C.  599; 
State  V.  Shij.loy,  10  Minn.  223,  88 
Am.  J)cc.   70;    Tiffony   v.  Com.,   121 


Criminal  Presumptions  203 

There  are  a  few  of  the  American  authorities  which  hold 
that  where  the  sanity  of  the  defendant  is  put  in  question 
the  sanity  must  be  proven  by  the  state  upon  the  whole 
case.'''  The  weight  as  well  as  the  bulk  of  authorities  is 
against  it,  however.^  The  proof  that  the  defendant  is 
less  than  seven  and  fourteen  years  of  age,  the  defense 
of  infancy  or  the  want  of  the  power  of  forming  a 
mischievous  intention  is  upon  the  defendant.®  And  so 
are  all  matters  that  are  peculiarly  within  the  knowledge 
of  the  defendant.^"  It  is  undoubtedly  the  law  as  admin- 
istered by  the  modem  courts  that  the  innocence  of  the 
defendant  follows  him  through  the  whole  trial  when 
charged  with  murder.  The  earlier  decisions  appear  to 
have  been  rather  unifonn  in  holding  that  when  a  killing 
had  been  traced  to  the  defendant  the  presumption  fol- 
lowed that  it  was  done  upon  malice.  But  at  this  time 
it  is  believed  that  this  rule  has  been  so  often  attacked 
that  the  courts  are  fast  adopting  the  idea  that  there 
is  no  presumption  against  the  defendant,  but  to  the 
contrary  the  state  at  all  stages  of  the  prosecution  is 
required  to  prove  the  malice  and  that  the  burden  is  never 
on  the  defendant. 

§245.  Presumption  as  to  conspirators.  The  fact  of  a 
criminal  conspiracy  having  been  established,  the  pre- 
sumption follows  that  the  act  of  one  of  the  conspirators 
in  furtherance  of  the  common  design  is  the  act  of  all  of 
his  co-conspirators.  The  declaration  of  one  in  regard 
to  the  common  purpose,  is  also  presumed  to  be  the  decla- 

Pa.  St.  165,  6  A.  S.  E.  775;  State  8— Turner  v.  Com.,  86  Pa.  St.  54; 

V.  Alexander,  66  Mo.  148;  People  v.  Frence  v.  State,  12  Ind.  670. 
Hong  Ah  Duck,  61  Cal.  387;   State  9— Hor.  &  Tliom,  Self  Defense. 

V.  Briscoe,  30  La.  Ann.  433;  Green-  10 — James  v.  State,  13  Tex.  App. 

ley  V.  State,  60  la.  141;  Eeddick  v.  14,  4  Tex.  App.  275;   10  Tex.  App. 

State,  7   Kan.   144;    Cunningham  v.  230;    13    Tex.    App.    1.      The   same 

State,  56  Miss.  269.  232;   4  Tex.  App.  468,  5  Tex.  App. 

7— Howe  V.  State,  11  Neb.  537;  596. 
State  V.  Spencer,  2  N.  J.  L.  196. 


204  Cbiminal  Law 

ration  of  all.  In  the  books  this  is  not  called  a  presump- 
tion, but  the  rule  is  in  effect,  a  presumption,  and  an 
irrebuttable  one.  It  is  an  inference  drawn  from  the  fact 
that  persons  engaged  in  a  common  purpose  give  their 
assent  to  all  acts  and  declarations  of  a  co-worker.  Be- 
cause, again  in  the  ordinary  affairs  of  life,  persons  com- 
bining to  etfect  a  common  purpose  impliedly  agree  that 
each  will  adopt  the  act  of  the  other. 

§  246.  Presumption  as  to  the  possession  of  recently 
stolen  goods.  It  is  a  rebuttable  presumption  when  one 
is  caught  with  recently  stolen  goods  in  his  possession  that 
he  is  guilty  of  the  theft,  or  at  least  that  he  is  guilty  as 
receiver  of  stolen  goods  knowing  them  to  be  stolen. 
When  the  stolen  goods  are  traced  to  the  possession  of  the 
defendant  the  presumption  of  innocence  is  overcome  and 
the  presumption  of  his  guilt  takes  its  place,  and  the 
defendant  is  required  to  rebut  this  presumption  by  evi- 
dence of  explanation  of  this  possession.  This  possession 
creates  a  conclusion  of  guilt  more  or  less  convincing  in 
proportion  to  the  circumstances  of  the  case,  and  the  kind 
and  character  of  the  property.^^  If  a  horse  is  found  in 
the  possession  of  A  locked  in  his  barn  the  inference  of 
guilty  possession  would  be  very  much  greater  than  it 
would  be  if  the  animal  was  found  in  a  remote  pasture 
under  the  control  of  A.  Again,  if  the  possession  of  a 
diamond  is  traced  to  the  accused,  the  same  being  stolen 
the  inference  would  be  quite  strong  that  the  possession 
was  illegal.  Thus  if  an  article  of  goods  being  easy  of 
concealment  by  reason  of  its  particular  nature,  size,  bulk 
and  the  like  the  probative  force  of  the  fact  of  possession 

11—3  Greenl.  32;  1  Greenl.  11-34;  State,  16  Tex.  App.  71;  Jnckson  v. 

Smith  V.  People,  103  111.  82;   State  State,  20  Tex.  App.  656;    State  v. 

V.  Jarnett,  82  N.  C.  655;   State  v.  Guikl,  149  Mo.  370,  50  S.  W.  909, 

Kelly,  73   Mo.  608;   State  v.  Bobb,  73    A.    S.    R.    395;    aastleberry    v. 

76  Mo.  501 ;  Allison  v.  State,  2  Tox.  State,  35  Tex.  App.  382,  60  A.  S.  R. 

App.    10;     Eagloman    v.    Slate,    52  53;  ITunt  v.  Com.,  13  Grat.  757,  70 

Am.  Dec.  494,  2  Ind.  91;  Tucker  v.  Am.  Dec.  443,  and  note. 


Criminal  Presumptions  205 

would  be  more  convincing  than  it  would  be  if  the  article 
was  of  such  a  nature  that  it  could  not  be  concealed. 

§  247.  Same  continued.  The  statement  in  the  preced- 
ing section  that  the  possession  of  recently  stolen  property- 
creates  the  presumption  that  the  possession  is  illegal, 
is  in  reality  only  an  inference  tending  to  prove  that  the 
possession  was  acquired  illegally.  It  is  true  that  some 
of  the  earlier  authorities  treated  it  as  a  rebuttable  pre- 
sumption of  law  and  that  the  crime  was  then  considered 
to  have  been  proven,  and  that  the  burden  shifted  to  the 
accused  to  establish  his  innocence.^^  The  burden  of  the 
state 's  case  shifts  to  the  defendant  through  the  trial,  and 
the  accused  is  required  to  oifer  some  explanation  of  the 
possession,  and  it  is  not  believed  to  be  the  law  that  the 
jury  or  the  court  would  be  authorized,  solely  to  convict 
upon  the  failure  of  the  accused  to  offer  some  explanation 
of  the  possession.  If,  however,  there  is  on  the  part  of  the 
state  other  evidence  of  the  guilt,  independent  and  dis- 
connected with  the  mere  fact  of  the  possession  in  the 
absence  of  the  explanation  of  the  accused  this  it  appears 
would  be  sufficient  to  authorize  the  conclusion  as  a  legal 
presumption  that  the  accused  had  received  the  goods 
knowing  them  to  be  stolen.  Standing  alone  the  mere  pos- 
session of  the  fruits  of  a  crime  are  at  most  only  presump- 
tions of  fact,  and  can  only  create  inferences  of  guilt, 
and  are  more  or  less  strong  according  to  the  circum- 
stances. As  where  the  possession  is  so  far  removed,  in 
point  of  time,  from  the  fact  of  the  crime  as  to  satisfy  the 
court  that  the  defendant  had  nothing  to  do  with  it,  such 
evidence  would  clearly  be  inadmissible." 

§  248.  Presumption  as  to  those  who  absent  themselves 
beyond  the  state.    Persons  absenting  themselves  beyond 

12— state  V.  Gentry,  149  Mo.  374,  13— Kelley  v.  State,  31  Tex.  App. 

73  Am.  St.  Rep.  391;   Castlebery  v.  32;  Huggins  v.  People,  135  111.  243, 

State,  35  Tex.  App.  382;  60  Am.  S.  25  Am.  St.  Rep.  357;  State  v.  Jacob, 

^CP-  53.  30  S.  C.  131,  14  Am.  St.  Rep.  897. 


206  Criminal  Law 

the  realm  or  absconding  beyond  the  jurisdiction  of  the 
state  for  a  period  of  seven  years  are  conclusively  pre- 
sumed to  be  dead."  This  is  a  general  rule  of  evidence,  and 
its  application  is  not  confined  to  the  criminal  law,  but  it 
frequently  becomes  important  in  trials  for  bigamy.  The 
law  will  not  permit  persons  to  marry,  where  either  have  a 
living  husband  or  wife,  unless  in  the  event  they  have 
been  divorced,  in  which  case,  however,  the  law  permits  the 
remarriage  of  the  divorced  parties  or  where  either  is 
dead.  Hence  this  doctrine  of  the  presumption  of  death 
becomes  important  for  the  reason  that  where  either  one 
abandons  the  other,  and  they  have  no  knowledge  of  the 
whereabouts  of  the  other  for  a  period  of  seven  years,  and 
no  knowledge  whether  living  or  dead  the  presumption 
is  tliat  he  or  she  is  dead,  and  a  remarriage  under  such 
circumstances  would  be  a  complete  defense  to  the  crime 
of  bigani}',  although  it  would  afterwards  transpire  that 
the  party  was,  as  a  matter  of  fact,  not  dead  at  the  time. 
One  marrying  under  such  circumstances  before  the  full 
expiration  of  the  seven  years  although  believing  that  the 
jjarty  was  dead,  and  also  believing  that  the  full  period  of 
time  had  elapsed  from  the  abandonment  will  not  be  a 
defense  for  a  prosecution  for  bigamy  unless  it  is  shown 
as  a  fact  that  the  former  partner  in  the  marital  relation 
died  prior  to  the  second  marriage.  This  presumption 
appears  to  have  been  incorporated  in  the  original  bigamy 
statute  by  the  English  Parliament  as  one  of  the  defenses 
to  an  otherwise  bigamous  marriage.  It  was  a  legislative 
engraft ment  of  the  presumption  as  a  specitic  defense  to 
bigamy.  In  a  prosecution  for  bigamy  the  state  is  re- 
(juired  to  show  that  tlie  defendaiil  had  a  living  wife  at 
the  time  of  the  second  marriage. ^^ 

14 — Set  following  case  for  a  full  178;     Davie    v.    Brigys,    97    U.    S. 

discussion  of  the  term  "beyond  the  G.57;    Thoinasson   v.   Oduiii,   2.5   Ala. 

miliii."      Ward    v.    f'olc,   :\'2    N.    II.  •lH(i;   Murrey  v.  Baker,  3  Wh.  U.  S. 

452;     W.ikificM    v.    Smart,    8    Ark.  ."ill;    Alexander   Bank    v.    Dyer,    14 

489;     Field     v.    Dickcr.son,    .'5     Ark.  I'rt.  I'.  S.   14."),  S  •'-!»!>  fliis  work. 
409;    Campbell   v.   White,   22   Mich.  lo— Gorman     v.    State,    23     Tex. 


Criminai.  Peesumptions  207 

§249.  Presumption  of  continued  life.  The  rule  that 
one  is  presumed  to  be  dead  when  it  has  been  shown  that 
he  has  been  gone  from  the  state  for  a  period  of  seven 
years  has  an  exception  in  its  application  in  prosecutions 
for  the  crime  of  bigamy.  This  exception  is  itself  a  pre- 
sumption, in  this,  that  if  the  defendant  is  shown  to  have 
been  living  at  a  particular  time  then  he  is  still  presumed 
to  be  living  unless  such  time  elapsing  from  the  time 
he  was  last  known  to  have  been  living,  and  the  time 
the  alleged  bigamous  marriage  is  said  to  have  taken  place 
is  beyond  a  reasonable  time.^^  As  there  is  no  certainty 
of  the  time  of  a  person's  life,  yet  it  is  taken  that  most 
persons  live  to  and  beyond  manhood,  hence  the  presump- 
tion is  one  only  of  comparison  as  to  the  relative  age  of 
the  party  at  the  time  he  is  last  known  to  be  alive.  The 
inference  is  stronger  where  it  is  shown  that  the  party 
was  in  his  young  manhood  than  it  would  be  if  he  was 
shown  at  the  time  of  last  heard  from  to  be  far  advanced 
in  age.  There  seems  to  be  a  great  conflict  among  the 
reported  case  as  to  the  relative  value  or  probative  value 
of  these  presumptions.  We  think  this  only  an  apparent 
conflict  for  the  reason  that  the  presumption  that  a  person 
is  dead  when  he  has  been  gone  from  the  country  for  the 
statutory  period  is  a  statutory  limitation  upon  the  right 
to  prosecute  the  case,  and  when  the  evidence  discloses 
this  state  of  fact  then  the  presumption  becomes  absolute 
and  irrebuttable.  In  the  case  of  the  presumption  of  life 
we  are  met  with  the  facts  that  the  human  race  as  an 
entity  die  at  all  periods  of  the  individual  life,  and  that 
as  a  fact  common  to  our  knowledge  only  a  few  persons 
live  beyond  three  score  and  ten  years,  and  hence  the  pre- 

App.    646;    Hull    v.    State,    7    Tex.  111.   58;    Stevens   v.   McNamara,   36 

App.    593;    State    v.    Fildeu,    3    Cr.  Me.  176;   Smith  v.  Knowlton,  11  N. 

Mag.   Cal.   49;    Forbes   v.    Foot,    13  H.     191;     Lockhiirt    v.    White,     18 

Am.  Dee.  732  and  note.  Tex.  402 ;  Ballard  v.  Carmichael,  83 

16— Gordan   v.   Gordan,   2   Houst.  Tex.  355. 
(Del.)    574;    Lowe    v.    Fouke,    103 


208  Criminal  Law 

sumption  of  life  is  one  of  inference  based  upon  our  knowl- 
edge of  these  facts  and  hence  could  be  of  very  little 
force.  Some  of  the  authorities  hold  that  the  jury  are  to 
take  the  two  presumptions,  and  from  the  facts  in  the  case 
determine  the  weight  to  be  given  to  each  which  of  course 
destroys  their  force  as  presumptions  of  law.  The  pre- 
smnption  of  death  is,  however,  one  of  law  and  the  other 
one  of  fact — the  one  absolute  and  positive  and  the  other 
only  inferential.^' 

§  250.  Presumptions  as  to  married  women.  At  the 
common  law  a  married  woman  was  exempted  from  crimi- 
nal intent  w^here  she  committed  a  crime  in  the  presence 
of  her  husband  for  the  reason  that  she  was  presumed  to 
be  under  the  coercion  of  her  husband.  This  was  a  pre- 
sumption of  law,  and  where  the  facts  were  that  she  was 
in  the  immediate  presence  of  her  husband  she  was  com- 
pletely exonerated  from  liability.  This  is  a  presump- 
tion in  some  of  the  several  jurisdictions  of  the  United 
States — that  is,  in  those  jurisdictions  where  the  common 
law  is  in  force  as  to  married  women.  It  is  therefore  com- 
petent to  offer  this  presumption  as  a  defense  for  a  mar- 

17 — In  the  case  of  the  State  v.  stance;   or  more  correctly  speaking, 

Prym,  43  Minn.  387,  the  court  said:  thoro  is  no  prosumption  one  way  or 

"It  seems  to  us  that  neither  of  these  the  other.     The  evidence  that  a  per- 

views    are    correct.      The    statutory  sou    was  living  at  a  particular  time 

presumption,    in    certain    cases,    of  is  but  one  of  the  facts  to  be  consid- 

dcath  after  seven  years,  affords  no  crcd    in    determining    the    question 

ground  for  the  converse  proposition,  wliether  he  was  living  at  any  future 

that  if  the  person  has  been  heard  given  time,  and  which  is  to  be  con- 

from  within  seven  years,  there  is  a  sidered  with  reference  to  accompany- 

presumption  of  law  that  he  is  still  ing    circumstances,    such   as   to    the 

living.     Neither  is  it  true  tliat  there  tinic   intervening,   the   age   and   the 

is  any  prcsuniplion  one  way  or  the  hoaltli   of  the  person,  and  the  like, 

other,  as  to  the  continuance  of  life.  Its   weiglit  as  evidence  will  bo  af- 

It   is  a   mere   presumption   of   fact,  IVctcd  l)y  any  circumstances  afTcct- 

wliich  is  subject  to  bo  controlled  by  ing  the  probability  of  the  continu- 

circumstances  and  facts,  and  consc-  ancc  of  life,  or  rendering  it  probable 

qiiontly     by     no     means     of     equal  tlirit   tlio    dc;ith   1i;k1   occurred. 
Hlrongtli  at  nil  time  and  all  circum- 


Criminal  Presumptions  209 

ried  woman  when  the  connnon  law  lias  not  been  abolished 
by  statute.  The  common  law  though  appears  to  have 
been  a  little  jealous  of  its  scope.  It  was  not  a  legal  pre- 
sumption when  the  circumstances  showed  that  the  hus- 
band could  not  as  a  matter  of  fact  have  coerced  her,  or 
where  the  crime  was  treason,  or  murder,  or  misdemeanor. 
As  a  general  rule  this  presumption  in  our  country  is  not 
often  of  force.  Most  of  the  states  have  statutes  which 
give  to  the  wife  substantially  the  rights  and  privileges 
as  that  of  the  husband,  and  practically  the  wife  is  not 
exempt  from  her  criminal  acts  while  in  the  presence  of 
her  husband. ^^ 

§  251.  Sanity  is  presumed.^^  This  is  essentially  a  crimi- 
nal presumption  since  its  application  is  more  frequently 
met  with  in  criminal  prosecutions.  Sanity  is  said  to  be 
the  normal  condition  of  man,  and  that  insanity  is  the 
abnormal  condition.  This  is  a  rebuttable  presumption 
of  law,  and  the  burden  is  upon  the  person  alleging  in- 
sanity to  prove  it.  In  view  of  the  fact  that  this  has  been 
fully  discussed  in  a  former  chapter  we  will  not  enter  into 
the  various  questions  as  to  the  weight  to  be  given  to  it 
but  will  close  the  discussion  here  by  saying  that  the 
question  of  burden  of  proof  is  a  much  mooted  one  where 
insanity  is  offered  as  a  defense  to  crime. 

§  252.  All  persons  are  presumed  to  be  normal  in  their 
physical  condition.    All  persons  are  presumed  to  be  nor- 

18 — A  full  discussion  of  the  prin-  lierty,  140  Mass.  454,  5  N.  E.  258; 

ciple  of  the  text   will  be  found  in  State  v.  Colby,  55  N.  Y.  73;   State 

I  he  following  cases:     Hines  v.  State,  v.    Baker,    71    Mo.    475;     Com.    v. 

35  N.  H.  207;   Goldstine  v.  People,  Wealcli,    97    Mass.    593;     Com.    v. 

82   N.   Y.   231;    State   v.   Williams,  Musey,    112    Mass.    287;    Hardy   v. 

65   N.   C.    399;    Davis  v.   State,   15  Foley,   121   Mass.   259;    Edwards  v. 

Ohio  St.  Reports,  721;  State  v.  Pat-  State,  27  Ark.  493;  State  v.  Banks, 

ton,    42    Vt.    495;    Miller   v.    State,  48  Ind.  197. 

27   Wis.    384;    Phillips   v.    Phillips,  19— McDugal    v.    State,    88    Ind. 

7    V.    Mon.    (Ky.)    268;    State    v.  24;    McDonald   v.    People,    47    Cal. 

Nelson,   29  Me.  329;    Com.  v.  Far-  134;   Com.  v.  Rodges,  48  Mass.  500, 
C.  L.— 14 


210  Criminal  Law 

mal  physically.  Thus  all  persons  are  presumed  to  have 
two  hands  and  two  feet,  two  eyes,  one  head,  and  the  like. 
An  adult  woman  is  presumed  to  be  virile,  and  able  to  bear 
children.  Thus  men  are  presumed  to  be  able  to  indulge 
in  an  act  of  sexual  intercourse.  A  boy  under  fourteen 
years  is  presumed  to  be  incapable  of  committing  sexual 
intercourse,  for  the  want  of  maturity.  The  instances  are 
many,  but  it  would  only  prolong  a  statement,  which  is 
known  to  every  person.^®* 

§  253.  Presumption  of  the  probable  result  of  a  man's 
act.  it  is  a  presumption  of  law  that  every  person  is  pre- 
sumed to  intend  the  probable  and  natural  consequences 
of  his  acts.  Thus  if  one  intended  to  commit  some  crime 
and  in  undertaking  to  cany  it  out  the  results  of  his  acts 
culminate  differently  than  he  had  intended  he  neverthe- 
less is  guilty  of  the  consequences.'"'  Thus  if  A  intending 
to  kill  B  and  through  mistake  takes  C  for  B  and  kills 
him  A  is  guilty  of  murdering  C  if  the  killing  would  have 
been  murder  if  he  had  killed  B  the  person  he  had  the 
specific  intent  to  kill.  So,  also,  if  A  directs  a  blow  at  B 
and  misses  him,  and  it  falls  upon  0  and  kills  him  he  is 
guilty  of  killing  C.  But  if  A  would  be  justified  in  killing 
B  he  then  would  be  justified  in  killing  C,  if  by  mistake 
the  blow  falls  upon  him.  So  again  if  a  person  acts  in  any 
capacity  whether  pursuing  a  lawful  calling  or  not  the 
results  being  traced  to  him  as  the  consequences  of  his  act, 
he  is  presumed  to  have  intended  the  result. '^^  Thus  if 
the  government  in  a  trial  for  nmrdor  i)r()V('s  the  corpus 

19u— Gardiner    v.    State,    81    Ga.  21— Stale  v.  Payton,  70  Mo.  220, 

144,   7  S.   E.   144;    Hill   v.  Spencer,  2  S.  W.  394;   State  v.   Murphy,  17 

196  111.  65,  63  N.  E.  614.  N.  Da.  48,   15  N.  W.   84,  16  Ann. 

41   Am.  Dec.  458;   State  v.  Finley,  Cas.    1133;    Com.    v.    Flainnihon,    8 

38   Mich.   482;    McKinsoy    v.    State,  Pa.  St.  430;  Clark  v.  State,  19  Tex. 

26  Ark.  334.  App.  495;   People  v.  Flock,  125  N. 

20— Dunham  v.  Stiite,  70  Ga.  264;  Y.  324,  26  N.   E.  267,  11   L.  R.  A. 

State    V.    Gilniore,    69    Me.    163,   31  807;   State  v.  LevcUe,  34  N.  C.  120, 

Am.    Kep.   257,   .1    Am.    (!r.   Uv]).    15.  13  S.   K.  319,  27  A.  S.  R.  779. 
ii  542  this  work. 


Criminal  Presumptions  211 

delicti  (which  consists  of  two  elements,  1,  the  death  and 
second  a  criminal  agency  in  producing  the  death),  then 
the  burden  is  upon  the  accused  to  show  that  there  was 
excuse  or  justification.  In  other  words  the  killing  being 
traced  to  the  accused  the  presumption  of  innocence  is 
then  ovei'come,  and  the  presumption  that  he  intended 
to  murder  takes  its  place,  and  if  no  further  evidence  is 
offered  by  the  accused  the  jury  is  authorized  to  convict 
if  the  guilt  is  established  beyond  a  reasonable  doubt,^^ 

§  254.  Presumption  of  persons  under  seven  years  of 
ag"e.  Every  person  under  the  age  of  seven  years  is  con- 
clusively presumed  to  be  incapable  of  forming  a  criminal 
intent,  and  cannot  commit  a  crime  in  a  sense  that  they 
would  be  punished  for  it.  This  is  the  rule  at  common 
law.  So,  also,  all  persons  between  the  ages  of  seven  and 
fourteen  years  are  presumed  to  be  incapable  of  forming 
an  intent  sufficient  to  convict  them  for  committing  a 
crime,  unless  it  is  shown  that  they  had  a  mischievous  dis- 
cretion. But  the  fact  of  non-age  was  regarded  as  an 
independent  and  separate  defense,  and  the  burden  of 
proof  was  upon  the  defendant  to  establish  it.  What  ap- 
pears to  be  the  law  is  that,  under  the  age  of  seven  years, 
there  could  in  no  case  be  any  crime,  and  the  case  of 
being  under  fourteen  and  over  seven  an  evil  intention 
could  be  shown  and  that  this  be  gathered  from  the  evi- 
dence of  the  whole  case.  The  presumption  was  founded 
on  the  natural  immaturity  of  the  parties.^^  There  is  also 
another  presumption  that  a  boy  under  the  age  of  four- 

22 — 3    Greenl.    sec.    14;    and   au-  that  the  defendant  was  possessed  of 

thorities.     High  v.   State,      26  Tex.  sufficient     understanding     to     know 

App.  545,  8  A.  S.  R.  448;    Collier  that  the  act  was  wrong.     The  state 

V.   State,   39   Ga.   31,   99   Am.   Dec.  is  not  required  to  do  this  until  it  ap- 

449.  pears    from    the   evidence    that    the 

23 — In  the  State  of  Texas,  where  defendant  is  less  than  thirteen  years 

the    statute    exempts    infants    from  of   age.      Parker   v.   State,   20    Tex. 

crime   between   the   ages   9   and    14  App.  451. 
years,  the  state  is  required  to  show  In  the  case  of  Dove  v.  State,  37 


212  Criminal.  Law 

teen  years  of  age  is  incapable  of  committing  the  crime 
of  rape,  and  this  is  an  irrebuttable  presumption  at  com- 
mon law.  This  is  based  upon  the  physical  inability  of 
the  party  to  consummate  the  act  of  carnal  intercourse. 
This  is  believed  to  be  the  law  in  most  of  the  states,  but 
in  some  may  be  rebutted.  It  has  been  held  that  a  boy 
under  the  age  of  fourteen  might  commit  an  assault  to 
rape.^* 

§  255.  Presumption  as  to  females  under  the  age  of  ten 
years.  A  female  under  the  age  of  ten  years  is  presumed 
to  be  incapable  of  giving  consent  to  an  act  of  carnal  inter- 
course. This  is  a  presumption  of  law  and  irrebuttable. 
An  act  of  carnal  intercourse  with  a  female  under  the  age 
of  ten  years,  at  common  law,  even  with  her  consent,  was 
rape.  Under  many  of  the  statutes  the  age  at  which  a 
female  may  be  capable  of  giving  her  consent  to  an  act 
of  intercourse  modifies  the  common  law  and  places  the 
age  limit  as  high  as  eighteen  years. 

§  256.  Taking   of   property   openly   and   notoriously. 

AMiere,  in  j)rosecution  for  larceny,  it  is  developed  in  the 

Ark.  261,  the  court  says:  "By  the  not  doli  capax,  or  capable  of  dis- 
common law,  that  if  a  child  over  cerning  between  good  and  evil,  until 
seven  and  under  the  age  of  fourteen  tlie  contrary  is  shown  affirmatively 
years  of  age  is  indicted  for  a  felony,  by  the  evidence.  The  rule  is  stated 
it  will  be  left  to  the  jury  to  say  in  note  to  1  Hale,  above  cited: 
whether  the  offense  was  committed  'From  the  supposed  imbecility  of 
by  the  prisoner,  and  if  so,  whether,  mind,  the  protective  humanity  of  the 
at  the  time  of  the  offense,  the  dc-  law  will  not,  without  anxious  cir- 
fendant  had  a  guilty  knowledge  that  cunispcction,  permit  an  infant  to 
lie  or  she  was  doing  wrong.  The  lie  convicted  on  his  own  confession, 
presumption  of  law  is,  at  that  age,  Yet  if  it  appears,  by  strong  and 
has  not  such  guilty  knowledge,  un-  pregnant  evidence  and  circum- 
less  the  contrary  is  proved  by  the  stances,  that  he  was  pnsrfectly  con- 
evidence.  By  statute:  an  infant  scions  of  the  nature  and  malignity 
under  twelve  years  of  age  shall  not  of  the  crime,  the  verdict  of  a  jury 
\)0  found  guilty  of  any  crime  or  may  fiiul  him  guilty.'  " 
mi.sdcmeanor.  Yet  when  the  accused  24 — Territory  v.  Kcyes,  5  Dn. 
is  between  the  ages  of  twelve  and  244;  St.ntc  v.  Williams,  14  Ohio 
fourteen,  the  common  law  presump-  222. 
lion  still  prevails,  that  he  or  she  is 


Criminal  Presumptions  213 

evidence  that  the  taking  of  the  property  was  open  and 
notorious  and  there  being  no  subsequent  attempt  to  con- 
vert it,  the  presumption  is  created  that  there  was  no 
felonious  intent.  This  is,  however,  a  presumption  of  fact 
and  it,  of  course,  depends  in  the  first  instance  upon  the 
certainty  of  the  evidence  as  to  the  acts  of  the  defendant. 
The  essential  element  of  larceny  is  the  intent  of  which 
the  taking  is  the  fruit.^^  The  intent  is  to  be  gathered 
from  the  acts  of  the  party  charged;  the  circumstances  of 
the  taking  as  to  whether  the  accused  attempts  to  conceal 
it;  the  relation  of  the  taker  to  the  owner,  and  the  like. 
All  persons  are  presumed  to  be  honest  as  well  as  inno- 
cent of  the  guilty  intent  necessary  to  constitute  the  crime 
of  which  he  is  charged.  Cases  might  arise  where  the 
court  might  be  of  the  opinion  that  the  acts  and  circum- 
stances were  of  such  a  nature  as  to  warrant  it  in  declaring 
as  a  matter  of  law  that  the  presumption  was  that  the 
defendant  could  not  have  had  the  essential  felonious  in- 
tent. 

§  257.  All  persons  presumed  to  know  the  law.  Every 
person  is  conclusively  presumed  to  know  the  laws  of  his 
countiy.^^  And  if  he  removes  abroad  he  is  presumed  to 
know  the  laws  of  the  land  where  he  is  domiciled.  This 
presumption  does  not  speak  actual  truth.  No  person  in 
existence,  perhaps,  knows  anything  like  all  the  law;  for 
no  mind,  however  profound;  no  genius,  however  great; 

25— Black  v.  State,  83  Ala.  81,  3  26—6  L.  E.  A.  498;  Hess  v.  Chil- 

Am.  St.  Eep.   691,  3  So.  814;   Me-  ver,   77  Mich.   598,   43  N.  W.   994, 

Mullin  V.  State,  53  Ala.  531;  Round-  18  A.  S.  R.  421;  Wharton  v.  State, 

tree  v.  State,  58  Ala.  383;  Johnson  37   Miss.   379;    State  v.    Salt   Lake 

V.   State,    73    Ala.    523;    Belote    v.  City,  35  Utah  25,  99  Pac.  255,  18 

State,    36    Miss.    96,    72    Am.    Dec.  Ann.  Cas.  1130;  Hallett  v.  Alexan- 

163;  Leaman  v.  State,  18  Tex.  App.  der,  50  Colo.  37,  114  Pae.  490,  Ann. 

174,  51  Am.  Rep.  298;  Hunt  v.  Com.,  1912  B  1277. 
18  Grat.  757,  70  Am.  Dec.  443,  and 
note;  Garcia  v.  State,  26  Tex.  209, 
82  Am.  Dee.  605. 


214  Criminal  Law 

no  physical  condition,  however  enduring,  during  the  time 
allotted  to  him  in  a  life  time,  could  acquire  the  greater 
part  of  the  laws.  This  presumption  has,  perhaps,  pro- 
duced its  correlative  in  the  maxim:  ' ' Ignorantia  juris 
quod  quarquis  tenetur  neminem  excusat,"  that  the  ignor- 
ance of  the  law  excuses  no  one.  This  presumption  is 
generally  regarded  as  conclusive,  but  the  ignorance  of 
the  law  may  be  put  in  evidence  for  the  purpose  of  rebut- 
ting a  specific  intent  with  which  an  act  has  been  com- 
mitted. 

§  258.  Malice  presumed  from  the  use  of  deadly  weapon. 
Malice  is  presumed  from  the  deliberate  use  of  a  deadly 
weapon.  So,  also  malice  being  once  established  it  is 
presumed  to  continue  until  the  contrary  appears.''^  Malice 
being  inferred,  by  the  use  of  the  weapon  the  burden  shifts 
to  the  defendant  to  show  the  legal  use  of  the  weapon.  Mal- 
ice is  also  presumed  from  the  manner  in  which  a  weapon 
is  used,  although  not  necessarily  dangerous  or  deadly. 
So  if  the  use  of  such  weapon  indicates  a  heart  fatally 
bent  upon  mischief  and  in  total  disregard  of  conse- 
quences, the  malice  is  presumed.  So,  also,  where  a  homi- 
cide is  perpetrated  by  lying  in  wait;  by  the  administra- 
tion of  poison;  in  the  perpetration  of  rape,  arson,  bur- 
glary and  I'obbery;  by  starvation  and  tort  arc. ^^ 

Where  a  homicide  has  been  proven  to  be  unlawful  and 
no  circumstances  of  mitigation  or  extenuation  appears, 
the  presumption  is  that  the  killing  was  ui)on  malice,  and 

28 — state  v.  Raimabarfjer,  91  la.  29 — Lamar    v.    Statc^    63    Miss. 

746;   State  v.  Perrigo,  70  la.   657;  265;  State  v.  Wisdom,  84  Mo.  177; 

Murphcy    v.    State,    37    Ala.     141  ;  Territory   v.    Rominc,    2    Now   Mex. 

Bivens  v.  State,  11  Ark.  455;  Mur-  114;    State    v.    Sherley,    64    N.    C. 

phey  V.   Slate,   9  Colo.  439;    Riggs  610;  Adams  v.  People,  109  111.  444; 

V.   State,   30   Miss.   635;    Perkins   v.  15    Am.   Rep.   617,   4    Am.   Cr.   Rep. 

State,    1    Mi.s3.    62;    State   v.   Barn  351;    Kennedy,   1(I7   Iiid.   144. 
well,  80  N.  C.  466;  McCoy  v.  State, 
25  Tex.  37. 


CitiMiNAL  Prekumptions  215 

this    presumption    prevails    until    the    defendant    dis- 
proves it.^" 

§  259.  Presumption  where  one  dies  after  year  and  a  day 
from  wound.  Where  one  receives  a  wound,  inflicted  in 
malice,  and  languishing  dies  more  than  a  year  and  a 
day  from  the  time  of  receiving  the  wound,  the  presump- 
tion of  law  arises  that  he  died  of  other  causes  than  the 
wound.  This  is  also  irrebuttable  and  no  proof  can  be 
offered  that  the  wound  contributed  to  the  death  or  even 
accelerated  a  disease  that  caused  the  death.  The  offense 
is  completely  barred  where  the  death  occurs  more  than  a 
year  and  a  day  from  the  wound.  This  is  a  general  rule 
of  the  common  law  and,  unless  the  same  has  been  changed 
by  statute,  the  same  would  be  barred.  Some  time,  of 
course,  should  be  placed  at  which  a  wound  would  be 
most  likely  to  result  fatally,  but  why  the  common  law 
has  placed  this  a  year  and  a  day  is  not  very  clear.^^ 

But  while  this  time  has  been  placed  as  the  limit  at 
which  a  prosecution  for  the  murder  or  manslaughter 
might  be  maintained,  yet  it  has  no  effect  as  a  bar  to  the 
lesser  grades  of  the  offense,  such  as  assaults  for  mur- 
der and  other  degrees  of  assault,  etc.  If  it  had  otherwise 
been  murder  if  the  party  had  died  within  a  year  and  a 
day,  there  appears  to  be  no  good  reason  why  the  assault 
to  murder  might  not  be  maintained.  We  have  not  come 
across  a  case  adjudicated  as  to  this  particular  question, 
but  we  are  convinced  from  principle  that  the  assailant 

30— Murphey    v.    People,    9    Colo.  616;  Brown  v.  State,  12  Minn.  538; 

435,    13    Pac.    528.      "Thus    where  State  v.  Mkhell,  64  Mo.  191;  Milton 

the   defendant   assaulted  a   woman,  v.    State,    6    Neb.    136;    Stokes    v. 

with  his  hands  and  feet,  at  a  time  People,  53  N.  Y.  164,  13  Am.  Eep. 

he   was   aware,   that   owing   to   her  492 ;  Sullivan  v.  State,  102  Ala.  135, 

condition,   the  assault   might   prove  15  So.  264,  48  A.  S,  B..  22;  State  v. 

fatal,     a     presumption     of     malice  Medley,   66  W.   Va.   216,   66   S.   E. 

arises.     See  Castelo  v.  State,  62  la.  358,   18  Am.  Gas.   761. 
404,  17  N.  W.  605;  State  v.  Knight,  31—1   Hawk.   Crown  Ed.   page  9, 

43    Maine    11;    Com.    v.    York,    50  sec.  9;    3  Inst.  53.  §536  this  work. 
Maes.  93;  Hogue  v.  State,  34  Miss. 


216  Criminal  Law 

would  be  responsible.  For  at  the  time  of  the  assault 
all  the  elements  essential  to  constitute  the  assault  ex- 
isted. 

§  260.  Defendant  is  presumed  to  be  of  good  character. 

The  defendant  in  a  criminal  prosecution  is  presumed  to 
be  of  good  character  at  the  time  he  is  charged  with  hav- 
ing committed  a  crime.  The  govennnent,  in  the  first 
instance,  is  not  permitted  to  put  in  evidence  any  circum- 
stance, derogatory  thereto,  independent  and  discon- 
nected with  the  circumstances  incident  to  the  crime 
eharged.^^ 

The  defendant  enters  into  the  trial  with  this  presump- 
tion in  his  favor  and  he  is  entitled  to  all  its  worth,  for 
it  would  be  unfair  and  unjust  to  allow  the  government 
to  introduce  evidence  to  his  prejudice  by  showing  that 
he  had  conmiitted  other  crimes  or  that  he  was  of  a  vio- 
lent and  fierce  disposition  or  that  his  character  was  gen- 
erally bad. 

Thus,  upon  a  charge  of  murder,  the  state  is  not  allowed 
to  show  that  the  defendant  had,  prior  to  the  charge, 
committed  other  murder,  rape,  larceny,  forgery,  etc., 
unless  the  crime  charged  is  one  of  a  series  of  or  a  part 
of  a  system  of  murders,  rapes,  robberies,  burglaries  and 
the  like ;  in  which  case  the  intent  is  evidenced  by  the  for- 
mer crimes,  because  each  follows  the  other  as  a  pre- 
viously foimed  and  premeditated  purpose.  As  in  the 
case  where  A  was  prosecuted  for  murdering  her  brother- 

32 — State  v.  Merrill,  2  Dev.  (N.  that  in  the  absence  of  evidence  the 
C.)  L.  269;  State  v.  Northcut,  48  ,iury  should  not  attribute  to  the  de- 
la.  583;  State  v.  Jones,  2  N.  W.  fendant  a  general  bad  character, 
Rep.  1060;  Gustofson  v.  State,  50  with  respect  to  the  qualities  in- 
la.  194;  1  Cr.  Mag.  page  260;  volved  in  the  alleged  offense,  nor 
State  V.  Linley,  51  la.  343;  State  give  weight  to  the  assumed  bad 
V.  Swain,  68  Mo.  605;  Olive  v.  character,  in  determining  the  ques- 
State,  11  Neb.  1,  7  N.  W.  444;  tion,  whether  the  evidence  estab- 
.fones  V.  State,  10  Tex.  App.  552;  lishes  his  guilt."  People  v.  John- 
"Whcn  it  is  said  that  good  char-  ])on,  9  Pae.  C.  L.  J.,  Page  756. 
acf«r    is    i»rcHiniKd,    it    is    only    Baid 


Criminal  Presumptions  217 

in-law,  D,  it  was  competent  for  the  state  to  show  that  A, 
for  the  purpose  of  securing  certain  insurance  payable  to 
her  sister,  had  murdered  her  and  after  her  death  had 
induced  D  to  transfer  the  payment  to  her.^^  So  where 
the  object  or  purpose  is  to  commit  burglaries  or  rob- 
beries generally,  the  state  having  proved,  first,  the  com- 
mon purpose  or  plan,  then  one  robbery  or  burglary  would 
be  admissible  proof  in  the  prosecution  of  another.^ 

§  261.  Conflict  of  presumptions.  It  appears  to  be  defi- 
nitely settled  that  there  is  no  presumption  of  law  that 
a  person  shown  to  be  living  at  a  time  stated,  continues 
to  live,  as  distinguished  from  and  as  opposed  to  the  pre- 
sumption that  a  person  charged  with  crime  is  presumed 
to  be  innocent  until  his  guilt  is  proven.^^ 

So,  in  a  prosecution  for  bigamy,  proof  that  the  for- 
mer husband  or  wife  was  living  at  a  time  anterior  to 
the  period  created  by  the  statute  of  the  presumption, 
death  does  not  relieve  the  prosecution  of  the  burden  of 

33 — State    v.    Dobbins,    152    la.  prior  challenge  of  another  member 

632,  132   N.  W.   805,  42   L.   R.  A.  of  this  class  would  be  relevant.    Or, 

(N.  S.)  735;  Hyde  v.  State,  234  Mo.  if,  the  ease  of  the  prosecution,  was 

200,    136    S.    W.    316,    Ann.    Gas.  that   A   had   concocted   a   plan   for 

1912  D    191;    People   v.    Molineaux,  cheating    several    banks,    by    some 

168   N.   Y.   264,   61   N.   E.    286,   62  common  design  operating  upon  all, 

L.  R.  A.  193.  then    the    cheating    of    one    bank 

34 — ' '  If  A  is  charged  with  killing  would  be  admissible  for  cheating  an- 

B,  in  a  duel,  would  it  be  admissible  other."      Francis    Wharton,    1    Cr. 

that  ten  years  back,  A  had  sent  a  Mag.  page  1 ;  in  support  of  his  posi- 

cfiallenge    to    C,    or    that    he,    even  tion,    cite    the    following:    Rex    v. 

had   killed   in   duels,   half   a   dozen  Dunn,  1  Mod.  CO.  950;  Rex  v.  Oddy, 

people,  or  if  A  is  charged  with  em-  2  Den.  C.  C.  224;  Coleman  v.  People, 

bezzling  money,  as  an  officer  of  a  53  N.  Y.  130;  Copperman  v.  People, 

particular  bank,  would  it  be  admis-  56   N.    Y.    591;    People    v.    Rundo, 

sible  to  prove  an  embezzlement  made  3  Parker  C.  335;  Shreidly  v.  People, 

by  him,  even  within  a  year,  in  an-  23    Ohio    St.    30;    Devato    v.    Com. 

other  bank?    Certainly  not.    If  how-  (Ky.),  3  Mete.  414;  Yarborough  v. 

ever,  the  case  of  the  prosecution  is  State,  41  Ala.  403;   Dove  v.  State, 

that  A's  plans,  in  pursuance  with  37  Ark.  261. 

some  social  grudge,  was  to  kill,  all  35 — People  v.  Prilen,  3  Cr.  Mag. 

of  a  particular  family,  or  all  of  a  188,   (Cal.),     page  49;   In  Re  Phe- 

particular    class    of    men,    then    a  nis'  Trusts,  R.  L.  5  C.  C.  App.  139. 


218  Criminal  Law 

proving  tliat  sucli  former  husband  or  wife  was  living  at 
the  time  of  the  alleged  second  marriage.  The  prosecution 
is  required  to  prove  all  the  elements  of  a  crime  and  the 
fact  that  the  allegation  of  the  indictment  is  that  the  de- 
fendant married  while  yet  having  a  living  wife  or  hus- 
band, it  is  bound  to  establish  this  element  of  the  crime  by 
proof.  The  authorities  are  conflicting,  but  the  weight  is 
with  the  proposition  that  where  the  presumption  of  the 
existence  and  the  continuance  of  life  conflicts  with  the 
presumption  of  innocence,  the  latter  prevails,  and  the 
burden  is  on  the  government  to  show  the  former.*^ 

§  262.  Defendant  fleeing  country,  presumption  of.  In 
the  books  we  find  that  a  presumption  of  guilt  was  al- 
lowed against  a  defendant  where  it  w^as  proved  that  he 
had  fled  the  countiy  when  he  was  charged  with  crime, 
or  where  he  had  absconded  the  country  before  he  was 
charged  or  at  or  about  the  time  the  same  was  committed, 
or  where  he  resisted  arrest  or  endeavored  to  avoid  ar- 
rest.^' Thus,  where  one  being  crowded,  stabbed  a  by- 
stander in  order  that  he  might  make  his  escape.^®  The 
trend  of  modern  authority  is  clearly  against  the  pre- 
sumption as  one  of  law.  As  one  of  fact  it  seems  to  be 
a  universal  rule.  One  state,  it  ajDpears,  considers  it  a 
presumption  of  law  and  the  accused  is  required,  under 
its  authority,  to  offer  rebutting  evidence,  explanation, 
or  tlie  court,  as  a  matter  of  law,  may  instruct  the  jury 
to  convict  upon  the  ]n'esumption  alone. ^®  Any  of  the 
al)o\'('  enumerated  circimistaiices  may  ])v  put  in  evidence 

:{6— Montgomery    v.    Blcvons    (U.  39— Stnte  v.  Poo,  12;{  la.  118,  98 

S.),  1  Sawy.  666;    State  v.   Hull,   7  N.    W.    587,     101     A.    S.    R.    307; 

Tex.  App.  593.  Lpwis  v.  State,  96  Ala.  6,  38  A.  S. 

37— Giancoli    v.    People,    74    Cal.  1{.  75,  11  So.  259;  State  v.  Duncan, 

642;     People    v.    Ogle,    104    N.    Y.  7   Wash.   336,   38   A.   S.   B.   888,  35 

.">11;    .Jor(l:iii    v.    Slate,    79    Ala.    9;  I'.-ic.  117;  State  v.  Ma  Foo,  110  Mo. 

State   V.   Dupeor,  31   La.   Ann.   804.  7,  ;i3  A.  S.   U.   11  1,   19  S.  W.  222. 

38 — State    v.    SaunderB,    76    Mo. 


Criminai.  Presumptions  219 

against  an  accused,  but  the  defendant  always  has  the 
right  to  explain.  A  conclusion  of  guilt  from  the  fact  of 
flight  is  dependent  upon  other  facts  and  circumstances 
which  may  or  not  leave  a  strong  conviction  of  the  guilt. 
There  are  many  reasons  why  the  same  should  not  pre- 
vail as  a  presumption  of  law.  An  instance  is  given 
where  (and  this  is  of  frequent  occurrence  in  all  parts  of 
the  United  States)  great  public  excitement  and  indigna- 
tion takes  the  form  of  a  ''mob;"  *®  or  where  the  condition 
of  the  public  denotes  such  a  prejudice  against  the  de- 
fendant that  it  is  doubtful  that  he  may  secure  a  fair 
and  impartial  trial.*^ 

§  263.  Defendant's  right  to  explain.  Where  the  de- 
fendant's flight  has  been  placed  in  evidence  he  has  the 
right  to  explain  why  he  fled,  except  where  the  evidence 
clearly  establishes  his  guilt.*^  In  a  Texas  case,  where  the 
defendant  was  denied  the  right  by  the  court  below,  the 
court  of  criminal  appeals  reversed  the  same  for  that 
reason  alone.*^  The  right  of  the  government  to  put  in 
evidence  the  flight  of  the  defendant  in  all  class  of  cases, 
circumstantial  and  direct,  is  declared  to  be  the  rule  in 
Texas;  so,  also,  that  the  state  is  limited  to  proof  of  flight 
after  indictment  or  charge  by  complaint.  The  defendant 
is  not  permitted  to  create  self-serving  testimony  by  show- 
ing that  he  did  not  attempt  to  escape  or  flee  or  to  put  in 
evidence  his  conduct  as  concerning  the  charge  until  the 
same  had  been  put  in  issue  by  the  government.**  It  is 
relevant  in  all  trials  for  crime  for  the  prosecution  to  offer 

40— Arnold  v.  State,  9  Tex.  App.  State,    4    Tex.    App.    355;    Gose    v. 

435.  State,    6    Tex.   App.   121;    Aikin  v. 

41— State  V.  Phillips,  24  Mo.  475.  State,  10  Tex.  App.  610;   Mathews 

42 — 9  Am.  &  Eng.  Enclo.  Lw.  page  v.   State,  9  Tex.  138. 
692  and  cases  cited.  44 — Williams    v.    State,    22    Tex. 

43— Arnold  v.  State,  9  Tex.  App.  App.  497;   4  S.  W.  54;   Gilliand  v. 

435;   Bcnifides,  31  Tex.  579;   Steat  State,  24  App.   524,  7  S.  W.  241; 

V.  Sheffield,  43   Tex.  370;    Blake  v.  Mercer  v.  State,  17  Tex.  App.  452; 

State,  3   Tex.  App.  581;   Harden  v.  20  Tex.  App.  656. 


220  Criminal  Law 

evidence  of  the  flight,  fright,  confusion,  nervousness, 
emotions,  anxiety  and  appearances  of  the  defendant. 
Fight  and  fright  and  other  evidences  of  anxiety  may  be 
considered,  in  a  sense,  implied  or  involuntary  confes 
sions.  But  considered  from  the  known,  usual  and  natural 
impulses  of  most  persons  very  little  weight  could  be 
given  them,  however.*^ 

§  264.  Presumption  from  fabrication  of  evidence.    It  is 

always  relevant  for  the  state  to  prove,  as  a  circumstance 
in  establishing  the  guilt  of  the  defendant,  that  he  had 
falsified,  fabricated  or  suppressed  evidence  which  might 
be  material  to  the  state's  case.*®  This  is  not  a  presump- 
tion of  law^,  except  where  the  defendant  had  the  posses- 
sion of  documentary  evidence  or  other  evidence  par- 
ticularly within  his  knowledge.  This  last  rule  is  of  more 
frequent  application  in  civil  matters,  and  a  party  to  a 
civil  suit  who  destroys  or  suppresses  any  such  evidence 
is  presmiied  to  have  done  so  for  the  advancement  of  his 
own  interest.  At  least  the  suppression  of  evidence  is  a 
strong  inference  against  the  defendant,  to  be  considered 
in  connection  with  all  tlie  circumstances. 

§  265.  Courts  are  presumed  to  notice,  etc.  Courts  are 
presumed  to  take  notice  and  have  knowledge  of  English 
words,  phrases,  abbreviations  and  legal  expressions  in 
common  usc;*''^  of  all  important  historical  facts;  of  all 
public  statutes  and  laws;  all  subdivisions  of  the  country 
over  which  they  have  jurisdiction,  such  as  counties,  ju- 
dicial districts  and  the  like;  of  their  own  records,  officers, 
sheriffs,  marshals  and  the  like;  take  knowledge  of  the 
beginning  and  closing  of  their  own  terms;  of  what  consti- 
tutes the  current  coin  and  money  of  the  country;  of  the 

45 — Sylvester  V.  State,  1  Ala.  Law  3  Orccnl.   K\.  .'!  1 ;   Uiulciliill  on   Va\, 

.Tnurnal,  pa^'c  134.  I'aj^o    .'M.T,   and    autlidritio.s   citod    by 

4G — Bcnevidos   v.    Stale,   31    Tex.  liini. 

579;  Sheffield  v.  State,  43  Tox.  370;  -17— Undcrliill  on   Kv.,  sec.  237. 


Criminal  Presumptions  221 

heads  of  departments,  either  of  the  United  States  or  of 
the  states.*^ 

§266.  Presumption  of  gnilt  from  judicial  confession. 
Judicial  confessions  are  in  all  cases  presumptions  of 
guilt,  except  in  the  case  of  murder,  where  the  corpus 
delicti  has  not  been  proven.  In  such  case  it  is  necessary 
to  corroborate  the  ''plea  of  guilty"  by  circumstances 
aliunde.**  Extrajudicial  confessions,  made  voluntarily 
and  freely,  are  not  conclusive,  are  but  questions  of  facts 
to  be  determined  by  the  jury,  and  do  not  necessarily  form 
the  basis  of  guilt.^®  Confessions,  however,  are  presumed 
to  be  voluntarily  made.^^ 

§  267.  Dying  declaration  presumed  to  be  true.  Dying 
declarations  are  presumed  to  be  true  because  made  under 
circumstances  which  are  supposed  to  be  equal  to  the 
sanctity  of  an  oath.  It  is  scarcely  a  presumption,  how- 
ever, but  a  strong  inference  is  created  that  one,  mortu 
extremis,  would  not  tell  an  untruth.  (Evidence  of  such 
statements  are  admissible  where,  in  cases  of  homicide, 
the  question  is,  as  to  how  it  has  been  committed  and  for 
showing  the  intent  with  which  the  defendant  acted.  Such 
evidence  is  clearly  inadmissible  unless  it  positively  ap- 
pears as  a  predicate  that  the  declarant  was  at  the  time 
conscious  of  impending  dissolution.  The  degree  of 
credence  to  be  given  these  declarations  are  dependent 
upon  several  considerations,  which,  in  some  cases,  almost 
destroy  their  weight,  if  they  do  not  entirely,  such  as 
that  the  declarant  was  not  conscious  of  immediate  death; 
that  the  witnesses  did  not  clearly  understand  what  it 

48— Ashby  v.  Martin  50  Ala.  537;  v.  Brown,  150  Mass.  330,  23  N.  E. 

Manchester  v.  Cheney,  94  111.  430;  49;  People  v.  Barker,  60  Mich.  227, 

McDonald  v.  State,  80  Wis.  407,  50  27  N.  W.  ,539. 

N.  W.  185;   State  v.  Barber,  36  TJ.  50— Underhill  on  Ev.,  page  138. 

S.  313;   State  v.  Gould,  26  W.  Va.  51— Culver    v.    Com.,    126    Mass. 

258;  Hinde  v.  Vattier,  5  Pet.  398.  227,  27  N.  W.  539. 

49 — 1  Greenl.  216  and  note;  Com.  464;    People    v.    Barker,    60    Mich. 


222  Criminal  Law 

was  he  said;  that  the  decUiraiit  was  not  in  the  full  pos- 
session of  his  faculties,  free  from  opiates  and  the  like; 
that  the  witnesses  have  no  interest  in  the  prosecution; 
the  relationship  of  the  witnesses  and  the  declarant;  all 
of  these  and  many  others  cast  discredit  upon  such  state- 
ments. Dying  declarations  are  presumed  to  be  equal 
in  w^eight  to  the  oath  of  any  other  person  taken  in  open 
court  and  statements  made  in  response  thereto;  that 
the  solemnity  of  the  approaching  death  has  the  force  of 
inducing  one  thus  situated  to  tell  the  truth." 

§  268.  Presumption  as  to  the  testimony  of  accomplices. 

The  old  rule  was  that  an  accomplice's  testimony  was  re- 
ceived with  the  same  degree  of  credence  as  the  testi- 
mony of  other  witnesses,  and  it  was  for  the  jury  to  con- 
vict upon  such  testimony  as  they  saw  fit.®'  If  they  be- 
lieved the  testimony  they  were  authorized  to  convict. 
But  at  this  time  it  appears  to  be  an  almost  universal  rule 
to  require  corroboration  of  such  testimony.  There  is  a 
rebuttable  presumption  now  that  an  accomplice's  testi- 
mony is  untrue,  at  least  to  the  extent  that  the  jury  is 
not  authorized  to  convict  without  corroboration.  It  is 
the  usual  practice  for  the  court  to  instruct  the  jury  that 
unless  the  testimony  of  the  accomplice  has  been  corrobo- 
rated they  cannot  convict.  The  question  of  the  corrobora- 
lioii  is  one  the  jury  may  determine  for  themselves,  of 
course  within  certain  limits.  Where  the  rule  of  the 
common  law  is  adhered  to  there  is  no  presuni})tion  that 
the  testimony  of  an  a.cc()iii))li('e  is  not  true.  In  many  in- 
stances the  rule  that  the  accomplice  must  be  corroborated 
is  due  to  statutory  ])r()visi(>ii.  In  otliers  it  is  due  no 
doubt  to  the  fact  that  the  courts  have  looked  with  sus- 

52 — Wortliington  v.  State,  92  Md.  Dec.  695;  Montgomery  v.  State,  80 

222,  48  All.  li'}-),  84  A.   S.   K.  r)()0;  Ind.  ;j:{8,  41  Am.  Hop.  815;  Slato  v. 

Stale  V.  Fiirncy,  41  Kan.  115,  l.'i  A.  Moy*<r,  fi5  N.  .1.  L.  2;{7,  47  All.  486, 

S.  K.  2(i2;  Slati'  v.  .lolinHon,  118  Mo.  86  A.  S.  R.  6.'?4,  and  note. 

401,  40  A.  S.  K.  405,  24  H.  W.  229;  5;(— Undcrhill     on     Ev.     277;      1 

Vo88  V.  Com.,  :j   Ivcigh  786,  24   .\ni.  ('rim.    Law  Mag.,  page  428. 


Criminal  Presumptions  223 

picion  upon  such  testimony,  because  of  the  great  incen- 
tive of  the  witness  to  testify  falsely  for  the  purpose  of 
protecting-  his  co-defendant  or  to  shield  himself  from 
the  crime." 

§269.  Presumptions  as  to  officers.  The  courts  as  a 
rule  will  not  presume  that  testimony  wrongfully  ad- 
mitted before  the  juiy  could  have  no  influence  with  them 
in  forming  their  verdict.^*^  All  proceeding  in  a  cause  is, 
however,  presumed  to  be  regular.^^  So,  also,  an  officer 
charged  with  official  misconduct  and  the  failure  to  per- 
form his  duty  is  presumed  prima  facie  to  have  acted 
within  the  law\*' 

54 — Wicks  V.  state,  28  Tex.  App.  56— Escareno    v.    State,    16    Tex. 

448;     Thomas     v.     State,     43     Tex.  App.  88,   3   Tex.   App.   76;    Beck  v. 

658;    Meyers  v.  State,   7   Tex.  App.  State,   72   Ind.   250;    Rutherford   v. 

640.  Com.,  78  Ky.  639. 

55— McKnight    v.    State,    6    Tex.  57— 0 'Connell   v.    State,    10    Tex. 

App.   158;   Logan  v.  State,  17   Tex.  App.  367;   James  v.  State,  21   Tex. 

App.  50.  App.  355. 


CHAPTER  XI 


CONFESSIONS 


§  270.  Admissions  and  confessions.         §  286. 
§  271.  Confession,  the  effect  of. 
§  272.  Classes   of   confessions.  §  287. 

§  272a.  The    effect    of    a    plea    of 

guilty  in  open  court.  §  288. 

§  273.  Confessions,      facts      to      be       §  289. 

proven. 
§  274.  Confession    defined.  §  290. 

§  275.  Admissibility      is      for      the 

courts.  §  291. 

§  276.  Inducement.  §  292. 

§  277.  Persons  in  authority. 
§  278.  Excluding  confessions.  §  293. 

§  279.  Must  be  voluntary. 
§  280.  Proof  of  admonition. 
§  281.  The  test.  §  294. 

§  282.  Threats    of   a   mob. 
§  283.  Confessions   at   comomn   law. 
§  284.  At    the    time    of    arrest    de-       §  295. 

meanor  given  in  evidence. 
§  285.  Silence  as  a  confession.  §  296. 


Confession  only  binds  the 
person  making  it. 

Confession  of  principal,  ac- 
cessory, etc. 

As  to  second  confession. 

No  examining  courts  at  com- 
mon law,  as  confession. 

Confession  obtained  through 
fraud. 

Confession  while  drunk. 

Confession  by  persons  inca- 
pacitated. 

Confession  of  defendant  vol- 
untarily testifying  in  his 
own  behalf. 

Inadmissible  confession  can- 
not be  used  for  impeach- 
ment. 

Admission  of  former  mar- 
riage, confession. 

Confession   by   third  parties. 


§  270.  Admissions  and  confessions.  Usually  admis- 
sions against  interest  in  civil  matters  and  confession  of 
guilt  in  criminal  matters  are  treated  in  the  books  under 
the  same  head,  "Exceptions  to  the  rule  respecting  hear- 
say evidence." 

Generally  the  reasons  given  for  receiving  declara- 
tions and  statements  against  interest  in  civil  matters 
are  the  same  as  those  assigned  for  receiving  the  confes- 
sions of  guilt  in  criminal  causes — the  presumption  pre- 
vailing that  such  confessions  or  admissions  are  probably 
true  because  made  against  the  interest  of  the  party  mak- 
ing tlicin.^     The  I'lili's  of  law  governing  ilic  admissibility 

1— Grecnl.     Ev.     2i:\;      Stnfo     v.       Ooiild,    10    N.    .1.    L.    16.'!,    IS    Am. 

224 


Confessions  225 

of  the  admissions  are  wholly  separate  and  distinct  from 
the  rules  admitting  evidence  of  confessions,  or  acknowl- 
edgments of  guilt.  In  the  latter  a  higher  degree  of  cer- 
tainty and  precaution  is  required  than  in  the  former. 
The  law  for  the  purpose  of  protecting  persons  charged 
with  crime  from  the  unjust  consequences  of  inadvertent 
and  unguarded  statements  have  thrown  around  them  cer- 
tain safeguards  which,  by  experience,  are  found  not  to 
be  necessary,  in  order  to  elicit  the  highest  degree  of 
truth  in  the  proof  of  mere  admissions  in  civil  matters.^ 

§  271.  Confession,  the  effect  of.  Deliberate  and  volun- 
tary confessions  impart  a  very  high  degree  of  probity, 
founded  upon  the  assumption  that  a  sane  person  would 
not  inculpate  himself  except  upon  convictions  of  con- 
scious guilt,  and  that  an  innocent  man  would  not  imperil 
his  safety  or  prejudice  his  interest  by  a  false  statement. 
Perhaps  no  stronger  evidence  in  a  given  case  could  be 
obtained  or  which  would  invite  a  higher  sense  of  convic- 
tion than  an  open  avowal  of  guilt.^  Whilst  his  is  true, 
great  caution  should  be  exercised  in  admitting  such  evi- 
dence. The  court  should  be  positively  satisfied  that 
such  confessions  were  freely  and  voluntarily  made,  apart 
from  motives  of  fear  or  from  considerations  of  advan- 
tage or  benefit  or  from  a  hope  of  escaping  punishment.'* 
Many  strong  reasons  are  urged  why  strict  caution  should 
bo  observed  on  admitting  such  confessions.  Thus  the 
probability  of  the  witness  misapprehending  the  exact 

Dec.  404;  Com.  v.  Knapp,  10  (Pick.)  v.  State,  43  Miss.  472;   Johnson  v. 

Mass.   477;    State   v,    Jefferson,    20  State,  59  Ala.  37;  State  v.  Patterson, 

Am.    Dec.    534;     6    Ired.     (N.    C.)  73   Mo.   705;    Bergen  v.  People,  17 

305;    Blackburn   v.   Com.,   12   Bush,  111.  426;   Terry  v.  McClint,  1  Mont. 

(Ky.)  181.  394;  Straight  v.  State,  43  Tex.  486; 

2 — 1  Phil.  Ev.  402;   Eoscoe's  Cr.  Berry   v.   State,   4   Tex.   App.   492; 

Ev.  41.  Smith    v.    State,    21    Gratt.     (Va.) 

3— Holt  V.  U.  S.,  110  U.  S.  574.  809;   State  v.  Knowles,  48  la.  598; 

4 — Anderson  v.  State,  72  Ga.  98;  Com.  v.  Smith,  119  Mass.  305;  John- 

Nesbit  V.  State,  43  Ga.  239 ;   Pitts  son  v.  State,  20  Tex.  App.  28. 
C.  L.— 15 


226  Criminal  Law 

language  used;  the  failure  to  give  the  proper  intonation 
of  the  voice,  the  almost  utter  impossibility  of  one  person 
to  repeat  what  another  person  has  said,  in  gesture,  facial 
expression,  words  and  actions;  the  probability  of  mis- 
take; the  treacherousness  and  fallibility  of  the  memory; 
the  erroneous  impression  one  is  likely  to  acquire  from 
the  misconception  of  words,  phrases,  etc.;  from  malice, 
jealousy,  zeal  and  interest  on  the  part  of  the  witnesses; 
the  environments  and  the  accompanying  circumstances 
surrounding  the  defendant ;  his  mental  condition  and  tem- 
perament; his  excitability  or  degree  of  calmness  when 
impressed  with  the  seriousness  of  the  charge  against  him ; 
these  and  many  others  may  contribute  to  the  belief  that 
the  confession  is  untrue  in  whole  or  in  part. 

§  272.  Classes  of  confessions.  Confessions  are  of  two 
classes,  judicial  and  extrajudicial.  1.  Judicial  confes- 
sions are  those  open  and  notorious  admissions  and  volun- 
tary^ declarations  of  guilt,  ''by  plea  of  guilty"  made  in 
open  court,  or  where,  under  the  provisions  of  the  statutes, 
the  accused  makes  a  statement  of  the  substance  of  the 
circumstances  of  the  crime  after  being  warned  by  the 
X)residing  magistrate  that  any  statement  he  may  make 
can  be  used  against  him  in  the  trial  of  the  cause.  Upon 
a  ''plea  of  guilty"  being  entered  in  open  court  the  de- 
fendant is  presumed  to  be  guilty  as  acknowledged,  unless 
it  appears  that  the  accused,  through  the  apprehension  or 
fear,  the  promise  of  reward  or  pardon,  or  the  hope  of 
receiving  some  benefit,  or  of  escaping  some  punishment, 
or  under  some  oilier  inducement  the  "])lea"  was  made 
under  duress.^ 

Generally  the  entire  statement  is  placed  in  evidence. 
Ill  cases  of  murder  confessions  in  open  court  are  not  con- 
clusive.    The   c()rj)us   del  id  i   must   Ix'   coi'roborated   by 

5— State   V.    Lamb,   28   Mo.   218;        ]041;   Skagj^s  v.  State,  88  Ark.  62, 
Danty  v.  State,  89  Ind.  398;   State        113  S.  W.  346,  16  Ann.  Cas.  622. 
V.    AhraniH,    131    la.   479,    108    Ncv. 


Confessions  227 

evidence  outside  of  the  evidence  of  the  confession.^  In 
crime  of  less  malignity  corroboration  is  not  required.  It 
is  provided,  however,  by  statutes  of  some  of  the  states 
that  the  plea  of  guilty  must  be  corroborated,  or  at  least 
the  magistrate  must  be  satisfied  that  the  statement  is 
freely  made  and  that  it  is  true. 

§  272a.  The  effect  of  a  plea  of  guilty  in  open  court.    A 

plea  of  guilty  is  only  an  admission  that  the  accused  com- 
mitted the  act  charged  against  him,  and  sufficiently  al- 
leged in  the  complaint  or  indictment,  and  is  not  an  ad- 
mission that  the  act  charged  is  an  offense  against  the 
law.  By  so  pleading  he  does  not  admit  that  the  offense 
charged  is  constitutional  or  within  the  powers  of  the  leg- 
islature, or  that  the  law  had  been  properly  enacted,  or 
that  the  court  before  which  the  plea  was  made  had  juris- 
diction to  receive  the  plea.'''  Such  a  plea  is  only  an  admis- 
sion that  by  the  record  the  truth  of  whatever  is  suf- 
ficiently alleged  against  him  and  does  not  prevent  him 
from  taking  advantage  of  such  defects.^ 

§  273.  Confession  is  a  fact  to  be  proven.  A  confession 
is  a  fact  to  be  proven  rather  than  evidence  to  prove  a 
fact.  The  confession  of  guilt  is  one  thing  and  the  proof 
of  the  confession  is  quite  another.  All  of  the  confession 
nmst  be  proven,  all  the  acts,  statements,  declarations  and 
conversations  must  be  admitted  together.^     A  different 

6— Gore   v.   People,    162   111.   259,  476,  60  Am.  St.  Rep.  832,  41  Pac.  5; 

44  N.   E.   500;    People   v.   Jackson,  Wilmotli  v.  Hensel,  151  Pa.  St.  200, 

103  N.  Y.  182,  8  N.  E.  374;   People  25  Atl.  86. 

V.  Jonos,  32  Cal.  80;   State  v.  Mar-  8— State  v.  Kelley,  206  Mo.  685, 

t«ner,  20  Kan.  93;  State  v.  Knapp,  12  Am.  Gas.  681;   Flecher  v.  State, 

70  Ohio  State  380,  71  N.  E.  751,  1  12   Ark.   169;    Henderson  v.   State, 

Ann.    Cas,    819.      Proof    of    Corpus  60  Ind.  276;  Com.  v.  Kennedy,  131 

Delicti,    Stringfellow    v.    State,    26  Mass.  584. 
Miss.  157,  59  Am.  Dec.  247.  9— Williams  v.  State,  69  Ark.  599, 

7— People  V.  Gould,  70  Mich.  240,  65  S.  W.  103;   Conner  v.  State,  34 

38    N.    W.    282,    14    Am.    St.    Rep.  Tex.    659;     Roscoe's    Cr.    Ev.    54; 

493;   Grossman  v.  Oakland,  30  Ore.  State    v.    Hollenchat,    61    Mo.    302; 


228  Criminal  Law 

rule  would  admit  of  great  abuse  and  result  in  a  great  in- 
justice to  the  accused.  The  rule  in  this  respect  is  the 
same  as  that  in  civil  cases.  Where  the  witness  has  heard 
only  a  part  of  the  statement  or  where  he  cannot  remem- 
ber the  substance  of  what  has  been  said,  or  where  the 
accused  w^as  interrupted  while  making  the  statement, 
having  failed  to  complete  the  same  fully,  evidence  of 
these  would  be  inadmissible.^**  Yet,  however,  where  dif- 
ferent witnesses  hear  one  part  and  another  another  part, 
the  government  may  prove  one  part  by  one  witness 
and  the  other  by  another.^^  The  accused  always  has  the 
right  to  explain  the  statements  made  by  him  by  any  evi- 
dence that  will  have  a  tendency  to  rebut  them.  "When 
the  confession  is  in  the  jury  may  believe  it,  or  a  part 
only,  or  it  may  be  rejected  entirely. 

§  274.  Confession  defined.  Extrajudicial  confessions 
are  those  free  and  voluntary  acknowledgments  of  guilt 
made  out  of  and  independently  of  a  court  of  justice,  and 
includes  all  statements,  conversations  and  facts  from 
which  guilt  may  be  inferred. ^^  There  is  no  presumption 
of  law  arising  from  this  class  of  confessions,  but  they  are 
merely  matters  of  fact  to  be  weighed  by  the  jury  in  de- 
termining the  guilt  of  the  accused.  It  is  the  duty  of  the 
court  to  instruct  the  jury  that  they  should  observe  great 

Griswall    v.    State,    24    Wis.    144;  Ala.  54;  Crawford  v.  State,  4  Cald. 

State  V.  Elliott,  15  la.  723;  Peter-  (Tenn.)    90;    State   v.    Gelabut,   39 

son  V.  State,  47  Ga.  524;   Williams  Cal.   663;    State   v.   Busse,    127   la. 

V.  State,  39  Ala.  532;  State  v.  Na-  318,  100  N.  W.  536. 
lione,  32  Vt.  241;    Kelsey  v.  Bush,  11— Cofman    v.    Com.,    10    Bush. 

2  Hill   (N.  Y.)   440;   Com.  v.  Keys,  (Ky.)  405;  Blackburn  v.  State,  230 

11     Gray     (Mass.)     323;     Com.     v.  St.   146;   People  v.  Wynne,  15  Cal. 

Brown,  9  Leigh  (Va.)  633;  State  v.  70;    Com.    v.    Brown,   9    Leigh    633, 

Isaac,   3   La.   Ann.   359;    People  v.  (36  Va.)  33  Am.  Dee.  263;  Noel  v. 

Murphey,  39  Cal.  52;  Eespuhlica  v.  State,    161    Ala.    25,    49    So.    824; 

McCarty,  2  Ball  (U.  S.)  86;  United  State  v.   Colvin,   226   Mo.   446,   126 

States  V.   Prior,   5   Cr.   37;    McCiil-  S.  W.  448. 
lock  V.  State,  48  Ind.  109.  12— People     v.     LeRoy,     4     Pac. 

10— State  V.  Covington,  2   Bailey  (Cal.)    649,  59  Cal.  451. 
(S.    C.)    569;    Miller    v.    State,    40 


Confessions  229 

caution  before  allowing  the  proof  of  such  confessions  to 
control  them  in  coming  to  a  verdict.^'  Two  views  are  en- 
tertained by  the  courts  and  text  writers  whether  this 
class  of  evidence  should  be  corroborated.  The  doctrine 
of  the  American  states  is  perhaps  settled  that  corrobora- 
tion is  required.  This,  perhaps,  because  of  the  many- 
errors,  mistakes,  misapprehensions  a  witness  may  fall 
into  in  detailing  conversations,  statements,  etc.,  and  this 
rule  is  supported  by  reason  and  justice.^* 

§  275.  Admissibility  for  the  court.  The  question  of  the 
admissibility  of  the  evidence  is  preliminary  to  the  ad- 
mission and  the  same  is  to  be  determined  by  the  court. 
A  review  of  the  reported  cases  shows  that  there  are  num- 
berless instances  where  courts  have  rejected  such  evi- 
dence because  of  its  incompetency.  The  sufficiency  of 
the  evidence  of  a  confession  is  one  to  be  determined  by 
the  jury  and,  as  we  have  said,  may  be  rejected  in  whole 
or  part.^®  Confessions  made  to  a  person  in  authority  or 
to  those  who  have  a  right  to  inquire,  or  those  who  exer- 
cise any  restraint  over  the  freedom  of  actions  of  the  pris- 
oner, as  a  preliminary  to  the  introduction  of  evidence 
of  the  confession,  the  government  must  show  that 
such    confessions    were    freely    and    voluntarily    made 

13— U.  S.  V.  Natt,  1  McLean  (U.  15— Whaley  v.  State,  11  Ga.  123; 

S.)  499;  Fouts  v.  State,  80  St.  98;  State  v.  Brite,  73  N.  C.  26;    State 

Tcople  V.  Gilbert,  39  Cal.  663.  v.  Fredmont,  851  A.  541;   Harding 

14— People   V.   Williams,   101   111.  v.   State,   54  Ind.   359;    Murphey  v. 
382;    May    v.    People,    9    111.    343;  People,  63  N.  Y.  590;  State  v.  Dun- 
State  V.  Knowles,  48  la.  598;  Smith  kin,  64  Mo.  262;  Young  v.  Com.,  8 
V.    State,   22   N.   W.    780;    Yate   v.  Bush  (Ky.)  366;  Burns  v.  State,  36 
State,  1  S.  W.  (Ark.)  65;  People  v.  Tex.  356;   State  v.  Vance,  8  N.  C. 
Lane,  49  Mich.  340;    State  v.  Dav-  631;    King  v.   State,   40  Ala.   314 
idson,  30  Vt.  377;  Com.  v.  McCune,  Com.    v.    Culver,    126    Mass.    464 
97  Mass.  580;   Strinfellow  v.  State,  Metzger    v.    State,    18    Fla.    481 
26    Miss.    157,    59    Am.    Dec.    247;  Dioson  v.  State,  13  Fla.  631. 
Brown  v.  State  32  Miss.  433;  Win- 
slow  V.  State,  76  Ala.  42;  Butler  v. 
Com.,  2  Dunn.  (Ky.)  435. 


230  Criminal  Law 

after  having  been  advised  that  the  statements  might 
be  used  against  him.^^  It  must  appear  that  the 
prisoner  understood  fully  what  effect  his  statements 
would  have  so  far  as  being  evidence  that  could  be  offered 
against  him.  So,  also,  where  any  person,  in  the  presence 
of  an  officer  or  other  person  having  any  authority  over 
the  prisoner,  offers  him  any  inducement  to  make  a  state- 
ment, and  a  statement  is  thereby  obtained,  the  same  will 
be  subject  to  be  rejected  unless  it  appears  that  the  person 
so  in  authority  warned  the  prisoner  of  the  effect  of  the 
statement." 

§  276.  Inducement.  The  rule  is  well  settled  that  an 
inducement  offered  to  a  prisoner  by  a  person  in  authority 
for  procuring  a  statement  concerning  any  criminal  offense 
of  which  he  stands  charged  has  the  effect  of  excluding 
such  evidence  as  being  procured  by  undue  influence.  By 
the  phrase,  "persons  in  authority,"  appears  to  apply  to 
any  person  having  an  interest,  that  is,  one  who  is  not 
officious  and  curious,  but  one  who  in  good  faith  has  an 
interest  in  helping  to  hunt  out  the  guilty  parties,  either 
as  an  officer  or  as  a  private  person,  such  as  judicial  and 
ministerial  officers,  sheriffs,  marshals,  police  officers,  de- 
tectives, prosecuting  officers  and  the  jDarty  injured,  and 
all  persons  connected  with  the  business  of  these  several 
officers." 

§  277.  Persons  in  authority.  The  aullioiities  are  con- 
flicting whether  ])ersons  not  in  authority,  that  is,  per- 

16— Cane  v.  State,  18  Tex.  App.  Lacey  v.  Slate,  58  Ala.  38G;  Beck- 

.387;  Warner  v.  State,  29  Tex.  App.  ham  v.  State,  100  Ala.  16;  State  v. 

168;  Gentry  v.  State,  24  Tex.  App.  .Tay,  116  la.  264;   89  N.  W.  1070; 

80;    Johnson    v.    State,    107    Miss.  State    v.    Brocknian,    46    Mo.    566; 

196,  65  So.  218,  51  L.  R.  A.  (N.  S.)  State   v.   Wliitfield,   70   N.   C.   356; 

1183.  People  v.  Smith,  15  Cal.  409;  3  Rus- 

17 — Jones  v.  State,  58  Miss.  349;  sell  on  Cr.  385;  People  v.  Gonzales, 

Reagan   v.   State,  49   Col.   316,   112  136  Cal.  666,  69  Pac.'  487;  State  v. 

Par.  78.5.  Dye,    36    Nev.    143,    133    Pac.    935. 

18 — Newman  v.  State,  49  Al.i.  U;  Sic  the  li.st  of  cases  cited. 


Confessions  231 

sons  who  have  no  direct  connection  with  the  prosecution, 
by  holding  out  inducements  obtains  a  confession  of  guilt 
can  be  permitted  to  testify  to  such  statements.  It  ap- 
pears to  be  borne  out  by  the  weight  of  the  authorities 
that  if  the  facts  of  the  particular  case  show  that  the  pris- 
oner made  the  confession  under  immediate  influence  of 
such  inducements  and  which  had  the  effect  of  creating  in 
his  mind  a  hope  or  a  fear,  then  such  confession  should 
be  excluded.^^  However,  some  of  the  authorities  hold 
that  all  confessions  made  to  private  persons  upon  induce- 
ments held  out  to  a  prisoner  by  them  would  be  inadmis- 
sible.^® The  rule  in  the  federal  courts  appears  to  be  that 
the  evidence  will  not  be  excluded  unless  it  was  obtained 
by  an  officer  or  under  the  sanction  of  an  officer.  The 
court  held  that  a  confession  made  to  any  other  person 
than  one  connected  with  the  prosecution  as  an  officer 
authorized  to  have  control  over  the  prisoner  would  not 
exclude  the  evidence.  It  further  holds,  however,  that 
at  common  law  there  were  private  prosecutors  which,  by 
the  law,  assumed  authority  over  the  prisoner,  but  that 
this  rule  of  the  common  law  did  not  have  application  in 
the  federal  courts  and  that  the  law  of  the  United  States 
did  not  recognize  this  semi-official  relation  to  the  prose- 
cution.^^ 

§  278.  Excluding  confessions.    Just  what  expressions, 
phrases  or  words  are  sufficient  to  determine  whether  the 

19— Bergerlt    v.    State,    8    Baxt.  276;    Anderson    v.    State,    104   Ala. 

(Tenn.)    520;    Cunningham  v.   Com.  83,  16  So.  108. 

9  Bush  (Ky.)   149;  State  v.  Farth-  20— In  Texas  it  is  held  that  state- 

ington,  43  la.   494;    Com.  v.   Sego,  ments   made   to   private  persons   or 

125  Mass.  150;  Ulrick  v.  People,  39  persons  not  in  authority  are  admis- 

Mich.  245;  State  v.  George,  15  La.  sible;  Gentry  v.  State,  24  Tex.  App. 

Ann.  145.     For  a  full  discussion  of  80,  5  S.  W.  660;   Eice  v.  State,  22 

the  common  law  rule  see  the  follow-  Tex.  App.  654;   Thompson  v.  State, 

ing:      Womack    v.    State,    16    Tex.  19  Tex.  App.  593. 

App.  178;  Collins  v.  State,  20  Tex.  21— United  States  v.  Stone,  8  Fed. 

App.  399;  Carter  v.  State,  37  Tex.  Rep.  232. 
362 ;  Williams  v.  State,  19  Tex.  App. 


232  Criminal  Law 

iuducemeiit  or  threat  comes  within  the  rule  excluding 
evidence  of  confessions  is  far  from  being  reduced  to  a 
rule.  Thus  it  has  been  held  that  where  the  language 
was:  ''Unless  you  give  me  more  satisfactory  account  I 
will  take  you  before  a  magistrate;"  ^^  "if  you  will  tell 
me  where  my  goods  are  I  will  be  favorable  to  you ! "  ^^ 
' '  I  only  want  my  money  and  if  you  will  give  that  you  may 
go  to  the  devil;"  ^*  "if  you  do  not  tell  me  all  about  it  of 
course  we  cannot  do  anything  for  you;"  ^^  "you  had  bet- 
ter split,  and  not  suffer  for  all  of  them ; "  "  the  inspector 
tells  me  that  you  make  housebreaking  tools,  so  you  had 
better  tell  me  the  truth,  it  will  be  better  for  you;"  "do 
not  say  anything  to  prejudice  yourself,  as  w^hat  you  say 
I  shall  take  down  and  will  be  used  against  you  or  for 
you  at  the  trial,"  come  within  the  rule  of  exclusion. 
The  following  cases  have  been  held  to  be  admissible,  as 
where  the  merchant  said  to  his  clerk:  "I  am  satisfied 
there  are  other  receivers  whom  we  have  not  yet  discov- 
ered. I  would  like  for  you  to  make  a  clear  breast  of  this 
matter,  as  AV  has  done;"  where  the  prisoner  was  urged 
to  confess  if  guilty,  and  not  do  so  if  he  was  innocent;^ 
where  the  prisoner  was  tied  and  said  to  the  officer,  "if 
you  will  untie  me  I  will  tell  you,"  and  upon  being  untied 
confessed.^'  Page  after  page  of  similar  cases  could  be 
cited,  but  it  would  but  add  confusion.  Whether  a  state- 
ment or  confession  in  any  given  case  is  admissible  is  a 
question  for  the  court  to  determine  at  the  time  it  is  of- 
fered, and  although  tlic  reports  are  full  of  precedents, 
yet  no  precise  rule  can  be  given  to  govern  all  cases.  The 
circumstances  of  each  case  can  be  only  taken  as  a  guide. 

§  279.  Must  be  voluntary.    The  proof  of  a  confession 
must  show  thai  it  was  freely  and  voluntarily  made,  aside 

22— Rc'x.  V.  Tliompson,  1  Leo.  291.  25— Rex  v.  Fenwcll,  L.  R.  Q.  B. 

23— Boyd    v.    State,    2    Humph.  D.  147. 

(Tenii.)   87.  2G— Com.  v.  Scgo,  125  Mass.  210. 

24— Kcx  V.   Partridge  &  C.   &  B.  27— Cruse  v.  Cruse,  74  N.  C.  491. 
551. 


Confessions  233 

from  the  influences  of  hope,  fear,  promises,  threats,  co- 
ercion or  duress,  or  any  other  influences  which  overcome 
the  free  and  deliberate  volition.''^  The  burden  is  upon 
the  government  to  show  that  the  confession  is  not  inad- 
missible. Whether  under  the  circumstances  the  confes- 
sion is  admissible  is  a  question  to  be  submitted  to  the 
sound  discretion  of  the  court.  The  usual  practice  appears 
to  be  that  when  the  confession  is  offered  the  accused 
should  object  to  the  introduction  of  the  evidence  because 
not  deliberately  made.  Then  the  preliminary  question 
is  to  be  determined  by  the  court  and  this  should  be  done 
out  of  the  hearing  of  the  jury  to  avoid  prejudicing  them 
in  case  the  same  is  excluded  from  them.^^ 

§280.  Proof  of  admonition.  If  the  circumstances  in- 
dicate that  the  confession  has  been  freely  and  voluntarily 
made,  then  the  evidence  of  it  is  admissible.  In  cases 
where  the  prisoner  is  in  the  custody  of  an  officer,  in  jail, 
or  under  arrest,  before  the  confession  is  entitled  to  admis- 
sibility it  must  appear  that  the  proper  admonition  and 
warning  were  given  to  the  accused  to  the  effect  that  any 
statement  he  might  make  could  be  used  against  him  and 
that  he  was  not  compelled  to  say  anything  at  all  if  he  did 
not  desire.^"  So,  also,  it  must  appear  that  the  accused  fully 

28— state    v.    Com.    55    Vt.    513;  State,    84   Mo.    278;     Chambers     v. 

State  V.  Ploward,  17  N.  H.  171;  Com.  State,  39  la.  179;  Brown  v.  People, 

V.   Natt,    135   Mass.    269;    State   v.  91    111.    506;    State    v.    Carrick,    16 

Porter,    18    Conn.    166;     People    v.  Nev.  120. 

McMahan,    15    N.    Y.    384;    Cox   v.  29— State    v.    Patterson,    73    Mo. 

People,    80    N.    Y.    500;     State    v.  696;    Redd  v.   State,   69   Ala.   255; 

Guild,  10  N.  J.  L.  163,  18  Am.  Dee.  State   v.   Branham,    13    S.    C.    389; 

404;    Niclioldson   v.    State,   28   Md.  Bradford  v.  State,  104  Ala.  68,  16 

140;    Thompson   v.    Com.    20    Gratt  So.   107,   53   Am.   St.  Rep.  24,  and 

(Va.)  224;  State  v.  Mills,  21  N.  C.  note  to  6  Am.  St.  Rep.  244;    Ker- 

428;    Simon   v.    State,   5   Fla.   285;  meen  v.  State,  17  Ariz.  263,  151  Pac. 

Frank  v.  State,  39  Miss.  705;   Por-  738;  Berry  v.  State,  4  Okla.  Cr.  202, 

ter  V.  State,  55  Ala.  95;  Johnson  v.  Ill  Pac.  676,  31  L.  R.  A.   (N.  S.) 

State,  61  Ga.  605;   Nolen  v.  State,  859;  Ammons  v.  State,  18  L.  R.  A. 

14  Tex.  App.  474;  Bryant  v.  State,  (N.  S.)   768. 

9  Humph.  (Tenn.)  635;  Hopkirk  v.  30— Taylor  v.  State,  3  Tex.  App. 


234  Criminal  Law 

comprehended  the  legal  effect  of  his  action.  If  it  clearly 
appears  that  he  did  not  know  what  he  was  doing  or 
that  he  did  not  make  the  confession  free  from  hope  or 
fear,  the  evidence  would  be  inadmissible.  So,  also,  it 
should  clearly  appear  that  the  accused  understood  the 
language  used.  Thus,  if  the  accused  was  a  foreigner,  and 
the  w^arning  was  given  in  a  language  which  he  did  not 
understand  there  would  be  no  warning  in  a  legal  sense. 
It  should  also  appear  that  he  could  hear  and  that  he  was 
in  a  position  where  he  could  hear  and  understand  fully 
what  was  said  to  him.'^ 

§  281.  The  test.  The  test  of  the  question,  in  determin- 
ing whether  the  prisoner  acted  from  hope  or  fear,  is 
whether  there  has  been  any  threat  or  promise  of  such  a 
nature  that  the  prisoner  would  likely  tell  an  untruth  from 
fear  of  the  threat  or  hope  of  profit  from  the  promise.'^'* 
The  hope  or  fear  of  some  collateral  benefit  or  injury 
does  not  render  the  confession  inadmissible.^^  The  hope 
or  fear  must  arise  out  of  the  circumstances  of  the  par- 
ticular case  and  relate  solely  to  it.  A  confession  induced 
by  the  fear  of  legal  punishment  is  not  inadmissible  for 
that  reason.^*  The  fact  that  the  defendant  was  actuated 
by  the  belief  that  he  would  not  be  prosecuted  does  not 
exclude  evidence  of  confession  made  under  such  a  be- 
lief.'* So,  also,  if  a  prisoner  make  a  confession  upon  the 
understanding  that  he  shall  be  exempted  from  prosecu- 
tion, but  aftenvards  refuses  to  testify,  evidence  of  such 

381;    Berry  v.   State,  4  Tex.   App.  33— State    v.    Wcntworth,    37    N. 

492;  Masscy  v.  State,  10  Tex.  App.  II.  196;  McKinncy  v.  State,  134  Ala. 

645.  134,  32  So.  726;  State  v.  Cruse,  74 

31— Loggins  V.  Slate,  8  Tex.  App.  N.  C.  491. 

434;  Com.  v.  McDermott,  123  Mass.  34— Gentry  v.  State,  24  Tex.  App. 

440,  25  Am.  Rep.  120.  80;  Thompson  v.  State,  19  Tex.  App. 

32— United     States    v.    Stone,    8  590. 

Fed.    232;    Beckham    v.    State,    100  35— Allen  v.  Stnto,  12  Tex.  App. 

Ala.  15;   Reagan  v.  People,  49  Colo.  190. 
;iir,.  112  r.-if.  785. 


Confessions  235 

a  confession  is  admissible.^^  A  prisoner  who  confesses, 
with  the  understanding  with  the  proper  authorities  that 
he  shall  be  exempted  from  prosecution,  shall  be  required 
to  comply  with  his  contract  if  he  expects  to  receive  the 
benefit  of  his  agreement.  The  law  always  exacts  hon- 
esty and  good  faith.  If,  however,  the  promise  is  condi- 
tional, such  as  the  government  may  use  the  confession 
or  not,  as  it  deems  advisable,  and  the  prisoner  refuses  to 
testify,  the  confession  is  inadmissible.^''' 

§  282.  Threats  of  a  mob.  Where  a  prisoner  knows  of 
the  threatened  violence  of  a  mob  and  of  the  gathering 
of  armed  men  for  the  purpose  of  doing  him  personal  in- 
jury, and  under  such  circumstances  makes  a  self-dis- 
serving statement  concerning  the  crime,  the  evidence 
of  such  statement  is  inadmissible.^^ 

A  confession  obtained  through  force  or  duress  is  inad- 
missible for  any  purpose.^^  The  rule  is  well  settled  that, 
where  a  prisoner  is  in  the  custody  of  an  officer  or  is  con- 
fined in  prison,  a  self-disserving  statement  made  to  an 
officer  or  to  any  person,  where  the  same  is  not  induced 
by  hope  of  reward  or  fear  of  some  injury,  will  not  take 
from  such  confession  its  free  and  voluntary  character.*® 

§  283.  Confessions  at  common  law.  At  common  law  a 
confession  made  to  persons  in  authority,  where  it  ap- 

36— Com.     V.     Knapp,     10     Pick  40— Balbo    v.    People,    80    N.    Y. 

(Mass.)     477,    20    Am.    Dec.    534;  484;    King   v.   State,   40   Ala.   314; 

State  V.  Moran,  15  Ore.'  62,  14  Pac.  Austin  v.  State,  14  Ark.  556;  Meyer 

419;   Hamilton  v.  People,  29  Mich.  v.   State,   19   Ark.    156;    Stevens  v. 

173;    Lopez  v.  State,  12  Tex.  App.  State,  11  la.  225;   State  v.  Sopher, 

27.  70  la.  494,  30  N.  W.  917;    Com.  v. 

37— State  v.  Johnson,  30  La.  Ann.  Preece,  140  Mass,  276,  5  N.  E.  494; 

^881-  People  V.  McCullough,  81  Mich.  25, 

38— Young  V.  State,  68  Ala.  596;  45  N.  W.  515;  Price  v.  State,.  18  O. 

Eedd  V.  State,  69  Ala.  255;  Mose  v.  St.  418;   Sparf  v.  U.  S.  156  U.  S. 

State,  36  Ala.  211 ;  Kendal  v.  State,  51,  39  L.  Ed.  343. 
65  Ala.  493. 

39 — Summerville    v.    Summcrville, 
37  N.  J.  Eq.  602. 


236  Criminal  Law 

peared  that  the  same  was  freely  and  voluntarily  made 
without  an  inducement  being  held  out  to  the  confessor  cre- 
ating a  hope  of  reward  or  the  fear  of  injury,  were  ad- 
missible as  evidence  of  the  defendant 's  guilt. 

At  the  common  law  the  person  to  whom  the  confes- 
sion was  made  was  not  required  to  warn  the  accused 
that  the  statements  might  be  used  against  him,  but  this 
rule  of  the  common  law  has  been  in  many  instances 
changed  by  the  statute  of  the  several  states,  which  in  sub- 
stance provides  that  confessions  made  while  the  pris- 
oner is  in  the  custody  of  an  officer  or  under  such  circum- 
stances as  would  take  from  the  accused  his  free  will  or 
other  legal  restraint  as  to  the  crime  charged,  cannot  be 
admitted  in  evidence  unless  it  is  proven  that  such  ac- 
cused was  warned  by  the  officer  that  any  such  statement 
or  confession  could  be  used  against  him."  So  it  has 
been  held  that  if  a  prisoner  makes  a  statement  which 
includes  a  detailed  condition  of  facts  and  the  facts  are 
afterwards  found  to  be  true,  it  is  not  necessary  under 
such  circumstances  to  have  warned  the  accused  that  the 
confession  would  be  used  against  him.  So  if  a  prisoner 
makes  a  confession  which  includes  a  statement  of  facts, 
and  those  facts  are  found  to  be  true,  then  in  that  event 
the  proof  of  these  facts  and  circumstances  are  admis- 
sible, notwithstanding  the  confession  itself  cannot  be 
])ut  in  evidence.*^ 

§  284.  At  the  time  of  arrest  demeajior  given  in  evi- 
dence. It  is  generally  conceded  that  when  a  party  is 
charged  with  crime,  at  the  time  of  his  arrest  his  acts 
and  demeanor  may  be  given  in  evidence  against  him. 
Very  little  weight  can  be  given  to  these  circumstances, 

41— Laros  v.  Com.  84  Pa.  St.  200;  42— Com.  v.  Knapp,  9  Pick,  496, 

State   V.   Carry,   28   La.    Ann.   925;  1    Leach,   386,   2   Eaat   P.    0.    658; 

White    V.    State,    3    Heist.    (Tenn.)  Chitty's  Cr.  L.  573. 
338;    Yates  v.  State,  47   Ark.   172; 
Davis  V.  State,  8  Tex.  App.  510. 


Confessions  237 

however,  unless  the  proof  clearly  indicates  that  his  acts 
and  demeanor  were  produced  by  the  consciousness  of 
guilt.  Thus  the  flight  of  a  party  upon  being  charged  with 
crime  is  always  an  admissible  circumstance  as  showing 
guilt,  the  weight  to  be  given  to  the  circumstance  under 
which  it  is  done  is  for  the  jury  to  determine.  The 
fact  that  the  defendant  shows  excitement  or  nervous- 
ness or  apprehension  should  create  very  slight  in- 
ference of  his  guilt,  because  common  experiences 
teach  us  that  an  innocent  person  whose  good  name 
is  attacked,  whose  reputation  for  honesty  and  good 
citizenship  has  been  established  for  years,  is  more  likely 
to  be  disturbed  and  show  anxiety  and  confusion  from  a 
sense  of  shame  than  one  who  has  in  fact  committed  the 
crime.*'  In  the  books  we  find  authority  for  the  proposi- 
tion that  flight  and  fright  at  the  time  the  charge  is  made 
against  the  accused  is  strong  presumptive  evidence  of 
guilt  of  the  accused.  This,  however,  appears  by  the 
weight  of  the  modern  authorities  to  be  a  question  for  the 
juiy,  to  be  considered  in  connection  with  all  the  other 
evidence  of  the  case. 

§  285.  Silence  as  a  confession.  It  appears  to  be  a  well 
settled  rule  that  one's  silence  to  questions  and  inquiries 
where,  under  the  circumstances,  such  questions  would 
ordinarily  call  for  a  reply,  may  be  given  against  the 
accused  as  an  implied  confession.  The  reason  for  the  rule 
clearly  appears,  when  applied  to  civil  causes,  but  are 
not  so  manifest  when  applied  to  a  criminal  cause.  If 
the  circumstances,  the  time,  the  place,  the  matter  in- 

43— For  a  full  discussion  of  the  v.  Blain,  20  Me.  109;  State  v.  Reed, 

doctrine  of  the  text,  see  the  follow-  62    Me.    129;    State    v.    Perkins    3 

ing  cases:     Storey  v.  People,  76  111.  Hawks     (N.    C.)     377;     People    v. 

276;    State    v.  Pratt,    20    la.    267;  Standley,  47  Cal.  113,  17  Am.  Eep. 

Murphey  v.   State,   36   O.   St.   628;  401;    Nof singer    v.    State,    8    Tex. 

Broyles  v.  State,  47  Ind.  251;  Mc-  App.   102;   Nolen  v.  State,  14  Tex. 

Kees  V.  People,  36  N.  Y.  113;  Com.  App.  474.    §  263  this  work. 
V.  Brown,  131  Mass.  69;   Roberson 


238  Criminaij  Law 

quired  about,  tlie  mamier  of  the  inquiry,  and  the  persons 
inquiring  would  suggest  to  the  accused  that  he  should  be 
silent,  as  that  of  a  careful  and  prudent  person,  it  would 
not  be  admissible  as  an  implied  admission.**  But,  upon 
the  other  hand,  if  the  circumstances  would  warrant  the 
inference  that  he  would  naturally  contradict  a  statement 
made  in  his  presence  it  is  admissible.*^ 

§  286.  The  confessor  is  the  only  person  affected.  A 
confession  is  only  evidence  against  the  person  making  it, 
and  cannot  be  ottered  against  others.  Confessions,  how- 
ever, of  one  particeps  criminis  in  the  presence  of  his  ac- 
complice and  not  denied  by  him  at  the  time  are  admis- 
sions against  him.*®  In  the  case  of  conspiracy  where  one 
of  the  conspirators  makes  a  statement  it  is  admissible 
evidence  against  all  upon  the  condition,  however,  that  it 
be  shown  that  the  statement  was  made  after  the  incep- 
tion and  before  the  culminations  of  the  common  design. 
If,  however,  the  statement  is  made  either  before  or  after 
the  completion  of  the  common  purpose  then  it  is  only 
evidence  against  the  person  making  it.*''^    Many  authori- 

44_Beard  v.  People,  86  111.  104;  molt,  12:5  Mass.  440;  State  v.  Ed- 
Williams  V.  State,  42  Ark.  380;  ward,  13  S.  C.  30;  Campbell  v. 
Weaver  v.  State,  77  Ala.  26,  5  Am.  State,  55  Ala.  8.  A  statement  made 
Or.  Kep.  366.  The  court  in  Robins  in  the  presence  of  a  prisoner  -will  be 
V.  State  says:  "That  the  confes-  presumed  to  have  been  heard  by 
sion  came  witliin  the  exception,  Ave  him.  People  v.  H.,  2  Abb.  App.  Dee. 
think,  to  the  general  rule,  that  after  (N.  Y.)   363. 

the  common  enterprise  is  at  an  end,  Evidence      of      the      defendant's 

no  one  is  permitted,  by  any  subse-  silence   when   incriminating  circum- 

quent  act  or  declaration  of  his  own  stances  are  discussed  in  his  presence 

to  affect  the   others;    which  exeep-  is  admissible  as  evidence  of  acqui- 

tion  is  where  the  confession  is  made  esecnce;    State    v.    Belknap,   39    W. 

in  the  presence  of  the  co-defendant,  Va.  427,  19  S.  E.  507;   Ilobbarty  v. 

and      under      circumstances      which  State,  8  O.  Circuit  Court,  262. 

would    make    it    receivable    on    the  45 — Sparf  v.  U.  S.  156  U.  S.  51, 

ground  of  assent  or  implied  admis-  39  L.  Ed.  343,  and  note, 

sion."  46— Murphy  v.  State,  36  Ohio  St. 

Allen   V.   State,   8   Tex.   App.    67,  628;   Com.  v.  Call,  21  Pick   (Mass.) 

1  Greenl.  Ev,  233;    Moore  v.  State,  515. 

0   Tex.   Aj.p.   564;    Com.   v.   McDer-  47— Lincoln    v.    Clofflin,    7    Wall 


Confessions  239 

ties  hold  that  the  silence  of  the  accused  admits  the  truth 
of  the  statements.  It  is  a  well  settled  rule  of  the  law  in 
both  civil  and  criminal  cases,  where  two  or  more  persons 
have  combined  for  the  purpose  of  conducting  a  common 
purpose  to  a  common  end,  that  all  parties  to  the  common 
purpose  are  bound  by  the  acts  and  declarations  of  their 
partners  done  or  made  in  furtherance  of  the  common 
design.  It,  however,  cannot  affect  the  admissibility  of 
such  evidence  by  showing  that  the  co-partners  knew 
nothing  of  the  acts  and  declaration  relating  to  the  com- 
mon purpose  made  by  any  of  the  others. 

§  287.  Confession  by  principal  as  to  accessory.  A  con- 
fession by  the  principal  is  admissible  for  the  purpose  of 
showing  the  guilt  of  the  principal  upon  the  trial  of  an 
accomplice,  but  it  is  inadmissible  for  any  other  purpose. 
It  is  not  evidence  of  the  guilt  of  an  accessory  or  accom- 
plice.*^ An  exception  to  this  rule  is  found  where  the  con- 
fession is  made  in  his  presence.*^  A  confession  which 
implicates  other  persons  or  mentions  other  names  must 
be  proved  as  made,  but  the  evidence  is  only  admissible 
against  the  persons  making  the  confession.^"  The  de- 
fendant is  entitled  to  have  all  of  the  conversation  and 
statement  go  before  the  juiy. 

(U.  S.)   132;   Kehoe  v.  Com.  85  Pa.  131.      In    the    English    eases    there 

St.  127;   Clawson  v.  State,  14  Ohio  seems  to   be  great   doubt,  and  the 

St.    1;    Williams   v.    State,   47   Ind.  following  cases  sustain  the  doctrine 

568;    Hamilton  v.  People,  29  Mich.  that  the  confession  can  only  be  used 

195;  People  v.  Geiger,  49  Cal.  643;  against      the      principal      and      not 

Loggins  V.  State,  8  Tex.  App.  434;  against  the  accessory:     Eex  v.  Tur- 

Gerrard  v.  State  50  Miss.  147.    For  ner,  Moody,  C.  C.  347;  Rex  v.  Gard- 

fiirther  maintaining  the  text  see  the  ner,  9  Cox,  C.  C.  332;  Rex  v.  Enoch, 

following:     Martin  v.  State,  25  Tex.  5  C.  &  P.  156. 

App.    557;    Armstead    v.    State,    22  49— Com.  v.  Call,  21  Pick  (Mass.) 

Tex.   App.   57;    Caheo   v.    State,   11  515. 

Tex.   App.    153;    Allen  v.    State,    8  50— State  v.  Dodson  16  S.  C.  453; 

Tex.   App.    67;    Moore   v.    State,    6  State  v.  Fuller,  39  Vt.  74;  State  v. 

Tex.  App.  564.  Workman,  15  S.  C.  541. 
48— Sims  V.  State,   10   Tex.  App. 


i>4U  Criminal  Law 

§  288.  As  to  second  confession.  Although  a  confession 
may  have  been  illegally  obtained,  yet  if  a  second  confes- 
sion is  made,  a  sufficient  time  having  elapsed  from  the 
giving  the  first  to  warrant  the  inference  by  the  court 
that  the  second  was  freely  and  voluntarily  made,  may 
be  offered  in  evidence  against  the  accused.  Of  course, 
if  the  first  confession  was  made  under  circumstances 
which  would  exclude  evidence  of  it,  the  court  should  be 
satisfied  that  the  influences  or  inducements  that  had 
prompted  it  were  wholly  removed  before  admitting  evi- 
dence of  a  second  or  any  subsequent  confession.^^  All 
statements,  though  made  at  different  times,  if  freely  and 
deliberately  made,  are  admissible  against  the  defendant. 
The  presumption  prevails  that  a  promise  or  other  induce- 
ment having  once  existed,  still  continues.^^  Hence  it 
is  incumbent  on  the  state  to  show  that  the  subsequent 
confession  was  freely  and  deliberately  made,  free  from 
the  effect  of  any  prior  influence. 

§  289.  No  examining-  court  at  common  law.  At  com- 
mon law  no  examination  was  permitted  when  a  prisoner 
was  charged  with  having  committed  a  crime.  But  a 
statute  was  enacted  during  the  reign  of  Phillip  and 
Mary  authorizing  magistrates  to  make  an  examination 
into  the  charge  for  the  purpose  of  granting  bail  or  dis- 
charging. This  statute,  in  one  form  or  another,  has  in 
substance  been  adopted  in  most  if  not  all  the  states. 
Where,  under  the  provisions  of  a  statute,  the  defendant  is 
compelled  to  answer  questions  under  oath,  touching  his 
connection  with  the  charge  against  him,  put  to  him  by  a 

51— Moore  v.  Com.,  2  Leigh  (Va.)  Com.  v.  Sheets,  197  Pa.  69,  46  Atl. 

701;    Love   v.   State,   22   Ark.   33C;  753. 

State  V.  James,  54  Mo.  478;  Walker  52— State  v.  Miller,  68  Wash.  239, 

V.  State,  7  Tex.  App.  245;  State  v.  122  Pac.  1066;   State  v.  Busse,  127 

Foster,  136  la.  527,  114  N.  W.  361;  la.   318,   100   N.   W.   536;    State   v. 

State  V.  Lowery,  170  N.  C.  730,  87  Knap,   70   Ohio   380,   71  N.   E.   705, 

S.  K.  62;  Bullock  v.  State,  65  N.  J.  1  Ann.  Cas.  819. 
L.  557,  47  Atl.  62,  8G  A.  S.  K.  668; 


Confessions  241 

magistrate  or  justice  of  the  peace,  such  inculpatory  an- 
swers cannot  be  offered  in  evidence  against  him  in  a 
trial  for  the  offense  because  such  answers  are  compul- 
sory and  elicited  against  the  consent  of  the  defendant.^^ 
A  different  rule  applies,  however,  where,  in  judicial  pro- 
ceeding, he  makes  a  statement  under  oath  which  incul- 
pates himself.  No  person  who,  as  a  witness  in  a  cause, 
is  compelled  to  answer  questions  or  make  a  statement 
the  tendency  of  which  is  to  incriminate.  He  has  the  legal 
right  to  claim  his  exemption.  If  he  fails  to  claim  his 
immunity  from  answering,  then  it  will  be  deemed  to  be 
freely  and  voluntarily  made.^*  Parties  who  are  called 
as  witnesses  before  coroner's  inquests  or  before  exam- 
ining courts,  who  make  statements  under  oath  concern- 
ing a  crime  for  which  they  are  afterwards  prosecuted, 
such  statements  may  be  offered  against  them  as  confes- 
sions." The  rule  seems  to  be  settled  that  if  the  defend- 
ant is  required  by  law  to  make  a  statement  under  oath 
concerning  a  cause  then  pending  against  him  that  the 
statement  cannot  be  used  against  him  as  a  confession. 

§290.  Confession  obtained  through  fraud.  Confes- 
sions obtained  through  artifice  or  deception  where  the 
circumstances  negative  an  inducement  producing  in  the 
mind  of  the  defendant  a  hope  or  fear  may  be  put  in  evi- 
denced^ Thus,  where  a  prisoner  asked  a  jailer  to  post  a 
letter  for  him,  and  on  receiving  a  promise  that  he  would 
do  so,  turned  the  letter  over  to  him,  and  the  jailer  re- 
tained it  and  offered  it  in  evidence  upon  his  trial  as  a 
confession,  held  that  it  was  admissible."    So,  where  the 

53— Hendrickson  v.  People,  10  N.  55— People  v.  Kelly,  47  Cal.  125; 

Y.  13,  61  Am.  Dec.  721;   Schoefaer  Dickerson  v.  State,  48  Wis.  288. 

V.  State,  3  Wis.  717;   State  v.  Gar-  56— Com.  v.  Goodwin,  186  Pa.  218, 

rey,  25  La.  Ann.  191;  People  v.  Me-  40  Atl.  412,  65  A.  S.  E.  852;  State 

Mahan,   15   N.   Y.   384.     This  case  v.   Hopkirk,   84   Mo.   278;    King  v. 

appears  to  have  been  overruled.  State,  40  Ala.  314. 

54— Hendrickson  v.  State,   10  N.  57— Com.  v.  Goodwin,  186  Pa.  218, 

Y.  13,  61  Am.  Dee.  721,  and  note.  40  Atl.  412,  65  A.  S.  E.  852;  People 
C.  L.— 16 


242  Criminal  Law 

accused  makes  a  statement  to  one  who  takes  an  oath  not 
to  divulge  what  he  relates  to  him. 

§291.  Confession  while  drunk.  Where  one,  being 
drunk,  makes  a  confession  it  seems  that  for  that  reason 
alone  the  confession  would  not  be  inadmissible.  How- 
ever, upon  principle,  reason  and  justice  it  appears  to  us 
that  the  spirit  of  the  law  would  exclude  it  if  the  accused 
was  so  drunk  as  to  be  insensible  and  to  have  no  compre- 
hension of  what  he  was  saying  and  doing.^^  The  ques- 
tion of  mental  condition  of  the  confessor  is  one  for  the 
jury  to  determine  from  all  the  facts  and  circumstances, 
at  least  it  appears  that  the  weight  of  authority  sustains 
this  doctrine.^®  Confessions  made  to  spiritual  advisors, 
communications  and  statements  made  by  a  client  to  his 
attorney  and  communications  and  conversations  of  hus- 
band and  wife  are  inadmissible  against  one  charged  with 
crime.  The  law,  in  veneration  for  man 's  spiritual  nature 
and  for  the  purpose  of  guaranteeing  the  highest  security 
to  his  person  and  property,  and  in  order  to  preserve  in- 
violate the  domestic  relations,  has  wisely  and  humanely 
held  such  communications  inadmissible  in  both  civil  and 
criminal  matters.  So  a  confession  made  in  a  jest  or  under 
a  mistake  of  fact  are  inadmissible,  but  statements  made 
by  a  person  while  in  jail  in  course  of  conversations  with 
other  prisoners  are  admissible.^*' 

§  292.  Confession  by  persons  incapacitated.  Confes- 
sions made  by  persons  mentally  capacitated  to  know  what 

V.  Barker,  60  Mich.  277,  27  N.  W.  59— State    v.    Felters,    51    Iowa, 

539,    1    A.    S.    R.    50;    Sanders    v,  495,  1  N.  W.  755;  Wright  v.  State, 

State,  113  Ga.  267,  38  N.  E.  841.  40  S.  W.  492;  Eskridge  v.  State,  25 

58— State    v.    Staley,     14    Minn.  Ala.   30;    Lester   v.   State,  32   Ark. 

105;    State   v.   Jones,   54   Mo.   478;  727. 

Gates  V.  People,  14  111.  433;  People  60— People   v.   Robinson,   19    Cal. 

V.   Barker,  60  Mich.  277,  27  N.  W.  40;    Lindscy   v.   State,   66  Fla.   341, 

5:'.9;     Williams    v.    State,    12    Lea  63    So.    832,    50    L.    R.    A.    (N.   S.) 

(Tcnn.)   211;    State  v.   Hopkins,  84  1077;    Ann.    Cas.    1916C,   1107,   and 

Mo.   278.  note. 


Confessions  243 

tliey  are  doing  are  admissil)le  against  them.  Tims,  if 
infants  over  the  age  of  seven  years  are  shown  to  be  intel- 
ligent and  bright,  their  confessions  may  be  used  against 
them.^^  A  confession  of  an  insane  person  would  be  in- 
admissible. AVe  remarked  in  the  preceding  section  that 
persons  intoxicated  are  not  from  that  fact  alone  incapaci- 
tated to  make  a  confession.  Whether  the  confession  made 
by  an  intoxicated  person  is  admissible  against  him  de- 
pends ujDon  the  extent  of  the  intoxication.  If  the  mind 
is  in  such  a  condition  that  he  does  not  know  what  he  is 
doing  the  evidence  of  his  confession  would  be  worth  very 
little,  yet  the  weight  to  be  given  to  such  confessions  is 
for  the  jury  to  determine. ^^  Unless  it  clearly  appears 
that  the  confession  was  involuntary  by  reason  of  the 
duress  of  the  intoxication  the  same  would  be  admissible. 
"The  degree  of  intoxication  which  leaves  one  capable  of 
making  a  narration  of  past  events  or  of  stating  his  own 
participation  in  a  crime,  is  not  sufficient  to  exclude  the 

inculpatory  statement  from  the  consideration  of  the 
jury."«3 

§  293.  Defendant  voluntarily  testifying  in  his  own  be- 
half. Where  a  defendant  voluntarily  testifies  in  his  own 
behalf  and  makes  a  statement  against  his  interest,  such 
statement  may  be  put  in  evidence  against  him  upon  a 
subsequent  trial  of  the  same  case.^ 

§  294.  Statements  inadmissible  cannot  be  used  for  im- 
peachment. Statements  inadmissible  as  confessions  can- 
not be  used  for  the  purpose  of  impeaching  the  defendant 

61— Com.  V.  Smith,  119  Mass.  305;  145;   State  v.  Eusli,  95  Mo.  199,  8 

State   V.  Vuild,   10   N.   J.   L.    163;  S    W.  221;  Heldt  v.  State,  20  Neb. 

Earp  V.  State,  55  Ga.  136.  4C2,  3  N.  W.  626. 

62 — See    the    following:      Wright  63 — Com.      v.      Howe,      9      Gray 

V.  State,  40   S.  W.  492;   People  v.  (Mass.)    110. 

Ramirez,    56    Cal.    533;     White    v.  64— Eafferty  v.  State  (Tenn.),  16 

State,  25  S.  W.  784;  King  v.  State,  S.  W.  728;  Walker  v.  State,  28  Tex. 

40  Ala.  314;  State  v.  Phelps,  74  Mo.  App.  112. 
128;    State    v.    Fredericks,    85    Mo. 


244  Criminal  Law 

in  those  jurisdictions  where  the  defendant  is  allowed  to 
testify  in  his  own  behalf.^^  Confessions  which  disclose 
collateral  facts  may  be  used  for  the  purpose  of  proving 
those  facts,  notwithstanding  the  confessions  would  be  in- 
admissible. So  much  of  such  confessions  which  relate  to 
the  facts  to  be  proved  independently  of  the  guilt  of  the 
accused  are  admissible.®^ 

§  295.  Admissions  as  to  former  marriage.  There  is  a 
class  of  confessions,  or  rather  admissions,  which  may  be 
proved  against  a  defendant  in  a  prosecution  for  big- 
amy.®' It  is  well  settled  by  authority  that  admissions  by 
the  defendant  that  he  had  been  previously  married  are 
admissible  against  him  upon  his  trial  for  bigamy  for 
the  purpose  of  showing  that  he  had  been  married.  The 
distinctive  features  between  this  class  of  testimony  and 
other  confessions,  consists  in  the  fact  that  such  admis- 
sions are  usually  made  long  anterior  to  the  alleged  sec- 
ond marriage,  or  at  least  prior  to  the  arrest  for  the 
crime.  Confessions  in  other  criminal  cases  can  be  made 
only  after  the  commission  of  the  offense,  but  here  we 
have  an  admission  made  before  there  was  a  crime  com- 
mitted. Not  only  so,  but  long  before  the  contemplation 
of  committing  one.  Proof,  therefore,  of  such  admissions 
should  be  received  with  caution  and  not  as  conclusive. 
Confessions  are  admitted  in  evidence  against  one  charged 
with  crime  because  they  are  supposed  to  be  the  spon- 
taneous outbursts  of  conscious  guilt.    We  are  sometimes 

65 — Contrary   to   the   doctrine  of  387;  Austin  v.  State,  15  Tex.  App. 

the  text:  Quinlana  v.  State,  29  Tex.  338. 

App.  40 ;  Baker  v.  State,  2  Tex.  App.  67— State    v.    Hodgkins,    19    Me. 

168;    Ncely  v.   State,   7   Tex.   App.  155;   State  v.  Libbey,  44  Me.  469; 

324;  Marales  v.  State,  36  Tex.  App.  Wolverton  v.  State,  16  Ohio  St.  173; 

256.     This  case  overrules  the  above  .Tackson    v.    People,    2    Sean.    (111.) 

cases  and  sustains  the  text.     Shep-  231;   State  v.  Sanders,  30  la.  582; 

pard   V.   State,   88   Wis.    185,   holds  Oneal  v.  Com.  17  Grat.  582;   Lang- 

with  the  text.  try  v.  State,  30  Ala.  536;  Finney  v. 

(5G— Ilaynie  v.  State,  2  Tex.  App.  State,  3  Head  544. 
163;    Taylor  v.  State,  3  Tex.  App. 


Confessions  245 

confronted  with  the  proposition  that  such  admissions 
■are  conclusive  presumptions  of  the  truth  of  the  facts 
about  which  they  are  made,  but  such,  at  most,  are  but  a 
circumstance  going  to  indicate  what  in  fact  is  the  truth. 
Many  reasons  may  be  martialed  showing  that  such  testi- 
mony is,  to  say  the  least  of  it,  far  from  being  satisfactory. 
Thus  one  may  declare  that  he  was  once  married  and 
that  he  had  a  wife  living,  without  any  motive  at  all.  He 
may  make  the  same  declaration  with  the  intent  of  pro- 
tecting himself,  as  well  as  to  protect  the  female  from 
the  disgrace  of  an  illicit  connection.  He  may  say  that 
he  has  a  legal  wife  from  a  misconception  of  the  law. 
He  may  say  that  he  has  a  wife  living  and  that  he  was 
married  at  a  given  time  in  sportive  moments — in  jest — 
with  no  idea  of  making  a  solemn  admission  against  him- 
self, hence  we  conclude  that  at  most  such  admissions  are 
only  mere  circumstances  which  the  jury  may  weigh  along 
with  other  evidence  in  reaching  the  verdict. 

§296.  Confessions  by  third  parties.  Confessions  by 
third  parties  that  they  had  committed  the  crime  for 
which  the  defendant  is  charged  are  not  admissible  for  the 
reason  that  such  statements  are  but  hearsay,  or  self- 
accusing  by  one  not  charged.  Thus,  where  one  on  his 
death  bed  confesses  to  a  murder  for  which  the  accused 
is  being  tried,  is  inadmissible.^^  Nor  is  the  confession  of 
one  that  he  committed  a  theft  for  which  the  accused  is 
being  tried.^ 

68— Davis  v.   Com.    (Ky.)    23   S.  69— Hardin    v.    State,    24    S.    W. 

W.   505.  28;  State  v.  West,  45  La.  Ann.  928. 


CHAPTER  XII 

PAEDONS 


Imposition  practiced  upon 
pardoning  power  vitiate. 

Tlie  pardon  must  be  deliv- 
ered and  accepted. 

The  right  to  exercise  par- 
doning power  is  one  purely 
of  discretion. 

Courts  will  take  judicial 
knowledge  of  the  granting. 

The  President  of  the  United 
States  cannot  pardon  im- 
peachment. 

Contempts  as  crimes,  may  be 
pardoned. 

The  effect  of  a  pardon. 


§  297.  Pardoning      power      in      the        §  305. 

Crown. 
§  298.  The  power  to  grant  pardons        §  ;306. 

in  the   American  states  is 

with  the  executive.  §  307. 

§  299.  Cases  where  the   Crown  had 

no  power  to  grant  pardons. 
§  300.  The    power   is   in   the   Presi-       §  308. 

dent   and   Congress  cannot 

abridge  it.  §  309. 

§  301.  Of    the    definitions    and    the 

divisions  of  pardons. 
§  302.  The  effect  of  an  unconditional       §  310. 

pardon. 
§  303.  Conditional      pardon,      what       §  311. 

must  contain. 
§  304.  General      pardon,      amnesty, 

etc. 


§  297.  Pardoning  power  in  crown.  At  the  ancient  com- 
mon law  the  right  to  exercise  the  pardoning  power  seems 
to  have  rested  in  the  crown,  with  a  kind  of  a  special 
power  in  parliament.^  Indeed  it  is  not  certain  that  at 
any  time  this  has  been  the  exclusive  prerogative  of  the 
crown.  At  best  we  meet  with  instances  where  parlia- 
ment has  exercised  the  power  generously  and  specially. 
At  the  present  in  England  the  power  seems  to  lay  in  the 
crown  exclusively,  this,  no  doubt,  being  created  through 
statute  rather  than  by  absolute  prerogative,  although 
as  pre-eminent  authority  as  Ohitty  says:  ''The  preroga- 
tive of  ])ai(l()iiing  powci-  is  inseparably  incident  to  the 


1 — Coke  'b   Lit. 
4  Bla.  303. 


8;    1    Hale,    3.58; 


L'4(; 


Pardons  247 

crown,  in  which  it  is  vested  for  the  benefit  of  the  sub- 
ject. It  seems,  indeed,  that  this  right  was  once  claimed 
by  the  lords.  Marchers  and  others  who  had  the  sole  right 
of  jura  regalia  by  ancient  grant  or  prescription. ' '  But  by 
27  Hen.  VIII,  C.  24,  Sec.  1,  this  supposed  power  was 
entirely  done  away  with  and  the  sole  power  of  dispens- 
ing with  the  sentence  of  the  law  was  forever  vested  in 
the  crown.^  There  is  but  little  doubt  that  this  preroga- 
tive of  the  crown  has  generally  been  pemiitted  to  repose 
in  the  crown  as  the  head  of  the  govenmient  by  the  grace 
of  parliament  rather  than  as  an  absolute  and  independent 
right.  At  least  parliament  had  a  coordinate  right  to  par- 
don in  particular  instances. 

§  298.  The  power  to  grant  pardons  in  the  American 
States  is  with  the  executive.  This  is  usually  conferred 
upon  the  governors  of  the  several  states  by  the  constitu- 
tion. There  are  some  instances  in  which  the  matter  is 
left  with  the  legislature.  The  constitution  of  the  United 
States  confers  the  authority  to  grant  pardons  exclusively 
upon  the  president  of  the  United  States.  Thus  he  shall 
have  power  to  grant  reprieves  and  pardons  for  offenses 
against  the  United  States  except  in  cases  of  impeach- 
ment.^ Under  this  power  the  president  ,may  wipe  out  all 
semblance  of  guilt  before  or  after  conviction.*  Many 
of  the  constitutions  provide  that  pardons  can  be  granted 
only  after  conviction. 

§  299.  Cases  where  the  crown  had  no  power  to  grant 
pardons.  A  review  of  the  authorities  upholds  the  conten- 
tion that  the  right  to  grant  pardons  as  a  prerogative  of 
the  crown  grew  up  as  a  contemporary  with  the  common 
law.  There,  indeed,  appears  to  have  been  no  time  dur- 
ing the  existence  of  the  English  government  when  this 

2— Chitty  Cr.  L.  762;  3  Inst.  235;        1;    U.    S.   v.    Jones,   2   Wheeler   Cr. 
4  Blaekstone,  402.  Cas.  450. 

3— U.  S.  Con.  Art.  II,  See.  2,  C.  4— Vol.    9    Attorney    Gen.    Opin. 


248  Criminal  Law 

right  did  not  exist.  Whenever  the  right  or  power  was 
once  exercised  could  not  be  revoked.  The  only  case  in 
which  the  crown  did  not  have  the  right  to  grant  a  pardon 
was  in  the  case  of  impeachment.^  And  in  keeping  with 
this  right  of  the  crown  and  the  executive  our  constitu- 
tion prohibits  the  granting  a  pardon  in  the  case  of  an 
impeachment.  This  power  was  exercised  by  parliament 
and  many  instances  are  met  with  where  parliament  as- 
sumed the  authority.^  The  parliament  appear  to  have 
been,  except  subject  to  certain  preroaratives  of  the  crown 
possessed  of  general  power  to  enact  any  law  or  assume 
any  authority,  and  could  at  any  time  extend,  limit,  or 
abridge,  the  prerogative  of  the  crown  as  to  the  power  to 
grant  pardons.  But  by  act  of  27  Hen.  VIII,  the  power 
is  confirmed  absolutely  in  the  crown,  and  it  seems  that 
the  parliament  has  not  assumed  authority  except  in  par- 
ticular instances  at  any  time  since. 

§  300.  Pov/er  is  in  the  president  and  congress  cannot 
abridge  it.  The  power  to  grant  reprieves  and  pardons 
is  vested  in  the  president  of  the  United  States  by  the 
constitution,  and  it  has  been  held  by  the  supreme  court 
(the  question  being  now  permanently  settled),  that  con- 
gress has  no  authority  under  the  constitution  to  enact 
any  law,  abridging  or  extending  this  power  conferred 
upon  the  president  by  the  constitution.'^  The  power 
may  be  exercised  by  the  president  in  pardoning  persons 

478;  M.  K.  &  T.  R.  R.  Co.  v  How-  7— U.   S.   v.   Wilson,   7   Pet.    (U. 

I'll,  30  S.  W.  101   (Tex.  Civ.  App.)-  S.)    150;    Ex  parte  Well,   18  How. 

5— Chitty's     1     Cr.     L.     763,     4  333;   State  v.  Nic-hold,  26  Ark.  74; 

Hiackstone,  399.     "It  seems,"  says  Ex  parte  Hunt,  10  Ark.  284;   Peo- 

Chitty,   "that   it   was   at   one   time  pie  v.   Bowcn,  43   Cal.  439,   Id.   13 

thought   that  murder  could  not  be  Am.  Rep.  148;  People  v.  Kcelcr,  99 

pardoned  by  the  crown  by  express  N.  Y.  468,  2  N.  E.  615;   Hovey  v. 

name."     763,   8   Am.   L.   Reg.   512  State,  11  Ind.  395;    People  v.  Da- 

to  532.  ton,  55  N.  Y.  380. 

6—8  Am.  L.  Reg.  512  to  532,  the 
.subject  is  fully  distniHsed,  pri'scnt- 
int,'   piirliamiTitary   pardons. 


Pardons  249 

in  their  individual  capacity  for  violation  of  the  laws, 
and  by  a  general  pardon  to  a  community  of  persons  by 
proclamation.  This  power  is  one  of  discretion  of  the 
executive  and  can  not  be  demanded  as  a  matter  of  right 
and  congress  could  not  provide  by  law  compelling  the 
granting  of  a  pardon.  Where  the  constitution  is  silent 
as  to  the  pardoning  power  the  legislature  may  place  it 
where  it  wishes.  In  reference  to  this  subject  one  court 
says : ' '  The  theory  of  all  monarchial  forms  of  government 
is  that  the  monarch  or  reigning  sovereign  rules  'by 
divine  right'  and  that  he  is  the  depository  of  all  supreme 
power — that  whatever  of  liberty  the  people  possess  or 
enjoy  is  a  gracious  grant  on  the  part  of  the  sovereign. 
Under  such  a  form  of  government  the  power  to  grant 
pardons,  remit  fines  and  forfeiture  is  the  dispensing 
power  of  the  sovereign,  a  crime  in  such  a  country  is 
not  against  the  government  but  against  the  king.  With 
us  the  theory  of  government  is  different.  If  a  man 
commits  a  crime  in  this  state  he  is  indicted  for  offend- 
ing, not  against  the  executive,  legislative  or  judicial 
branches  of  the  government,  but  for  having  offended 
'against  the  peace  and  dignity  of  the  state' — while  with 
us  the  governor  or  the  president  has  but  a  delegated  and 
limited  sphere  of  action,  which  by  no  means  implies  that 
we  must  necessarily  or  naturally  delegate  along  w^ith  the 
executive  power,  also  the  pardoning  power.  "^  Thus 
the  power  must  rest  where  it  has  been  placed  by  the  con- 
stitution or  in  the  absence  of  a  constitutional  prohibition 
the  power  may  be  placed  where  the  legislature  wills. 
There  is  this  difference  between  the  powers  of  congress 
under  the  federal  constitution  and  the  powers  of  the 
legislature  under  a  state  constitution,  that  the  former  de- 
rives its  authority  from  grants  expressly  or  by  neces- 
sary implication  conferred  upon  it  by  the  constitution, 
while  the  latter  have  all  authority,  except  that  which 

8— state  V.  Nichold,  26  Ark.   74. 


250  Criminal  Law 

lias  been  inhibited  by  tlie  state  constitution  and  the  laws 
of  the  United  States  and  the  constitution  thereof.  But 
where  the  constitution  of  a  state  provides  that  a  certain 
thing  must  be  performed  by  an  officer,  then  that  officer 
must  do  it  and  is  confined  in  his  authority  to  the  powers 
expressly  conferred  upon  him,  and  he  may  go  no  further 
than  the  delegation  of  authority.^ 

§  301.  Of  the  definitions  and  the  division  of  pardons. 
A  pardon  consists  in  an  act  of  grace  proceeding  from 
the  pardoning  power  of  the  government  granting  immun- 
ity from  punishment  for  crime  committed  against  the 
laws  of  the  state.^"  There  are  three  classes  of  pardons. 
1,  An  absolute  or  unconditional  pardon.  2.  A  conditional 
pardon.  3.  General  pardons.  As  to  an  absolute  pardon 
it  is  said  to  be  one  which  relieves  one  charged  with  or 
convicted  with  some  offense  against  the  state  from  the 
pmiishments  and  other  consequences  following  the 
charge  or  conviction.  A  conditional  pardon  is  one  which 
frees  one  from  tlie  consequences  of  the  violation  of  the 

9 — AUor  V.  Wayne,  43  Mich.  76;  3  Inst.  233.  Eusscl  on  crime:  "Par- 
State  V.  Murrell,  16  Ark.  384;  Lit-  don  readies  both  the  punishment 
tie  V.  State,  90  Ind.  338;  Ex  parte  proscribed  for  the  offense  and  the 
Griffiths,  118  Ind.  83;  Warren  v.  guilt  of  the  offender,  and  when  the 
People,  2  Den.  (N.  Y.)  272;  Com.  pardon  is  full,  it  relieves  the  pun- 
V.  Gamble,  62  Pa.  St.  348,  I  Am.  ishment  and  blots  out  the  existence 
Rep.  422;  State  v.  Douglass,  26  of  the  guilt,  so  that  in  the  eyes  of 
Wis.  428,  7  Am.  Rep.  87;  State  v.  the  law  the  offender  is  as  innocent 
Messmore,  14  Wis.  163.  The  court  as  if  he  had  never  committed  the 
in  the  case,  Taylor  v.  Goodrich.  40  offense. ' '  Russ.  on  Or.  975.  Chief 
S.  W.  515,  says:  "That  where  Justice  Marshall  of  the  Supreme 
the  constitution  confers  a  power  Court  of  the  United  States  v.  Wil- 
upon  an  officer  he  is  confined  to  the  son,  7  Pet.  150,  delinea  a  pardon  in 
power  granted."  the   following   language:      "A  par- 

10 — Lord  Coke  defines  pardon  in  don  is  an  act  of  grace  proceeding 
the  following  words:  "A  work  of  from  the  power  entrusted  with  the 
mercy,  whereby  the  king,  either  be-  execution  of  the  laws,  which  ex- 
fore  or  after  conviction,  attainder  cmptH  tlio  individual  upon  whom  it 
or  sentence,  forgiveth  any  offense,  is  })estowed  from  the  punishment 
liiiiiiHliment,  execution,  title,  debt  tlie  law  inflicts  for  a  crime  he  has 
III-  (bity   tiMii|Kir;il  or  ecclesiaatical.  "  ((iiiiinittcd.  " 


Pardons  251 

laws,  dependent  upon  something  to  be  performed  by  the 
person  pardoned  as  a  condition  jarecedent  or  subsequent. 
A  general  pardon  is  the  remission  of  guilt  of  whole  com- 
munities of  persons  who  are  assumed  to  have  been  violat- 
ing the  laws  of  the  land  in  a  body  or  in  its  aggregate 
capacity." 

§  302.  The  effect  of  an  unconditional  pardon.  An  un- 
conditional pardon  has  the  effect  to  restore  the  person 
pardoned  to  his  exact  condition  prior  to  the  time  of  the 
commission  of  the  crime.  It  not  only  removes  the  pun- 
ishment but  it  also  neutralizes  the  guilt  and  cancels  all 
disabilities  and  forfeitures,  with  the  exception  that  it 
does  not  restore  office  forfeited,  or  property  or  interest 
vested  in  others  in  consequence  of  the  conviction  and 
judgment. ^^  A  pardon  by  the  president  of  the  United 
States  relieves  of  the  forfeiture  of  goods  seized  so  far  as 
the  right  of  the  government  of  the  United  States  is  con- 
cerned ;  ^'  it  restores  an  officer  to  the  rank  he  held  origi- 
nally where  his  rank  has  been  reduced  by  judgment  of 
a  court  martial;^*  but  where  the  law  gives  to  certain  per- 
sons a  portion  of  a  fine  or  forfeiture  as  in  the  case  of  in- 
formers as  provided  in  matters  of  the  violation  of  the 
revenue  laws  of  the  United  States,  the  interest  of  the 
informer  being  in  the  nature  of  a  vested  right  in  the 
fine  and  forfeiture,'  a  pardon  by  the  president  of  the 
United  States  does  not  divest  that  interest  out  of  the  in- 
former.^^    The  same  rule  will  also  require  the  pardonee  to 

11— Cook  V.  Middlesex,  26  N.  J.  S.   6  Wall.    (U.   S.)    766;    U.   S.  v. 

L.   326;    4  Bla.   400;    State  v.   Ful-  Allen's    Armory,    2    Abb.     (U.    S.) 

ler,   1   McCord    (S.    C);    Ex   parte  129;  Osborn  v.  U.  S.  91  U.  S.  474. 

Wells,  18  How.  (U.  S.)  307.  14—12  Opin.  Atty.  Gen.  547. 

12—2  Russ.  on  Cr.   975;    2  Hale  15— U.  S.  v.  Lancaster,  4  Wash. 

P.  C.  278;    Cuddington  v.  Wilkins,  (U.  S.)  64;  U.  S.  v.  Harris,  1  Abb. 

Hobart's     Rep.      81-82;     Knots    v.  (U.   S.)    110;    Ex  parte   Winner,   8 

United  States,  10  Ct.  Claims,  397;  Biss   (U.  S.)    321;  Rose  v.  State,  2 

Ex  parte  Graland,  4  Wall.  333.'  Bay   (S.  C.)   565;   State  v.  Farley, 

13 — Armstrong's  Foundery  v.  U.  8    Blackl.     (Ind.)     229;     Ex    parte 


252 


Ceimhstal  Law 


pay  all  cost,  that  is  will  not  relieve  him  of  the  payment  of 
the  cost.  And  where  the  law  provides  that  the  prisoner 
may  be  imprisoned  until  the  fine  and  cost  is  paid,  impris- 
onment as  to  the  part  of  the  judgment  affecting  the  cost 
is  held  not  to  be  an  imprisonment  for  debt  and  in  viola- 
tion of  the  provision  of  the  constitution  which  provides 
that  * '  no  person  shall  be  imprisoned  for  debt. ' '  ^^  There 
is,  however,  a  line  of  decisions  holding  that  if  the  pardon 
is  pleaded  as  having  been  granted  after  conviction,  and 
before  sentence  of  the  court  that  such  pardon  will  relieve 
the  pardonee  of  the  liability  of  payment  of  the  costs." 
That  in  line  with  this,  also,  it  is  held,  that  where  the  gov- 
ernment has  acquired  the  title  of  property  as  distin- 
guished from  a  mere  right  or  right  in  action,  the  pardon- 
ing power  cannot  divest  the  title  by  the  pardon.  As 
where  the  property  at  the  time  of  the  pardon  had  been 
paid  into  the  treasury  of  the  United  States  could  not  be 
restored  to  the  pardonee  except  upon  the  authority  of  con- 
gress.^' 


Boyd,  34  Kans.  570;  State  v. 
Mooney.  74  N.  C.  98;  White  v. 
State,  42  Miss.  636;  Ex  parte 
Gregory.  56  Miss.  164;  Ex  parte 
Maim,  46  S.  W.  828  (Tex.)  holds 
that  the  pardon  does  not  relieve 
the  pardonee  from  the  payment  of 
the  cost  of  the  prosecution  in  the 
case  of  misdemeanors.  It  also  fur- 
ther holds  the  holding  for  the  pay- 
ment of  cost  by  imprisonment  is  not 
an  imprisonment  for  debt.  The 
court  cites  among  other  authorities 
the  following:  In  re  Wheeler,  34 
Kans.  96;  People  v.  Cotton.  14  111. 
414;  Musser  v.  Stewart,  21  Ohio  St. 
353;  Ex  parte  Cottrell,  13  Nev.  193; 
Howes  V.  Cookscy,  13  Ohio  St.  242; 
State  V.  Dyches,  28  Tex.  App.  535. 
16 — Mann  v.  State,  46  S.  W. 
(Tex.)  828,  73  Am.  St.  Rep.  961; 
Id.  39  Tex.  App.  491. 


17— Com.  V.  Hickman,  46  Pa.  St. 
357;  Com.  V.  Ahl,  43  Pa.  St.  53; 
Schaglkill  v.  Eeefsugder,  46  Pa.  St. 
446;  White  v.  State,  42  Miss.  636; 
Ex  parte  Gregory,  56  Miss.  164.  In 
this  case  the  court  says:  "Wliere 
appellant  in  a  criminal  case  has  giv- 
en bond  to  supersede  the  judgment, 
fixing  his  punishment,  and  taxing 
liim  with  the  cost  of  the  prosecu- 
tion, the  pardon  docs  not  relieve 
liim  of  his  civil  liability  on  the  su- 
persedeas bond;  and  if  he  fails  to 
prosecute  the  appeal  this  court,  upon 
motion  of  the  state,  supported  by 
the  proper  showing  will  render 
judgment  against  appellant  and  his 
bondsmen  for  the  cost  in  this  court 
and  the  court  below."  Phillips  v. 
State,  58  Miss.  578. 

18— Knote  v.  United  States,  10 
Ct.  of  Claims,  :i<)7;   V.  S.  v.  Athens 


Pardons  253 

§  303.  Conditional  pardon,  what  must  contain.  Condi- 
tional pardons  may  be  granted  contingent  upon  tlie  per- 
formance of  conditions  precedent  or  subsequent.  The 
conditions  annexed  thereto  must,  however,  be  not  im- 
moral, illegal  or  impossible  of  performance,  and  reason- 
able, and  not  incompatible  with  the  spirit  of  our  laws 
and  institutions.^^  When  the  pardon  is  accepted  with 
the  conditions  imposed  it  then  becomes  an  accepted  con- 
tract and  a  failure  to  keep  the  conditions,  and  to  perform 
its  obligations  nullifies  it  and  places  the  prisoner  in  the 
same  status  as  to  his  liabilities  to  punishment  as  before 
the  granting  of  the  pardon.  The  rule  is  well  settled  that 
where  the  conditions  of  the  pardon  have  been  broken  the 
same  become  null  and  of  no  effect  so  far  as  the  prisoner 
is  concerned,  and  that  in  order  to  carry  the  judgment  and 
sentence  into  effect  it  is  not  necessary  to  retry  him,  and 
to  ascertain  that  the  conditions  have  been  broken.  If 
the  conditions  have  not  been  broken  the  prisoner  may 
show  this  upon  a  writ  of  habeas  corpus,  and  the  condi- 
tions have  not  been  broken  he  may  be  discharged.^"    It 

Armory,  35  Ga.  344;   8  Opin.  Atty.  in  the  pardon,  placed  him  in  statu 

Gen.    281 ;    U.    S.    v.    Six    Lots    of  quo,    that    it    remitted    him    to    his 

Ground,    1   Wood    (U.    S.)    234;    U.  former     sentence,    with    his     rights 

S,  V.  Paddleford,  U.  S.  Eep.  Book  neither  enhanced  nor  attenuated." 

17,  788.  If  the  defendants  had  been  involun- 

19— U.  S.  V.  Wilson,  7  Pet.  161;  tarily  brought  back  to  this  state,  or 

Ex  parte  Wells,  18  How.  307;  U.  S.  were   really  not  the  men  convicted, 

V.  Six  Lots  of  Ground.  1  Wood  234;  or  could  raise  another  legal  bar  out 

Ex  parte  Hunt,  10  Ark.  248;  Arthur  of   the   pardon,   or  show  any  other 

V.  Craig,  48  la.  264;   Lee  v.  Mur-  good  cause,  did  they  not  stand  as 

phey,  22  Gratt  789.  when  originally  brought  up  for  een- 

20 — Ex  parte   Lockhart,   11  Pac.  tence?     They  certainly  stood  in  the 

Coast  L.  J.  610;  4  Cr.  L.  Mag.  965.  second  instance  as  in  the  first,  i.  e., 

In  the  case  of  the  State  v.  Chan-  precisely  the  same  parity  of  right, 

cellor  the  court  said :     ' '  The  courts  of  law,  of  reason,  i.  e.,  they  were 

hold  that  (the  case  being  one  where  simply  convicts  brought  before  the 

the    prisoner    had    been    pardoned  court  to  be  again  sentenced,  because 

upon   the    condition    that    he    leave  they  so  far  had  evaded  it."     State 

the  state,  and  he  failed  to  comply  v.  Chancellor,  1  Strabb  347,  47  Am. 

after    acceptance)     the    failure    to  Dec.  557. 
comply  with  -  the  condition  imposed 


254  Criminal  Law 

appears,  however,  tliat  it  is  not  necessaiy  tliat  he  resort 
to  the  writ  of  habeas  corpus  for  in  some  jurisdiction  the 
practice  appears  to  be  to  arrest  the  prisoner  and  have  him 
show  cause  why  he  should  not  be  reconfined  or  in  other 
words  show  why  the  sentence  and  judgment  of  the  court 
may  not  be  carried  out.^^ 

§  304.  General  pardons,  amnesty,  etc.  A  general  par- 
don is  whore  a  class  or  a  community  of  persons  taken 
altogether  is  granted  freedom  or  remission  of  guilt  for 
crimes  or  offenses  committed.  This  is  in  all  essential 
respects  sjmonymous  with  Amnesty,  and  is  a  direction  by 
the  pardoning  power  that  entire  remission  of  guilt  be 
extended  to  all  persons  guilty  of  a  violation  of  the  laws 
generally.  The  most  usual  example  is  found  where  the 
government  restores  all  those  engaged  in  a  rebellion  to 
their  former  rights  as  citizens,  free  from  forfeitures,  pen- 
alties and  punishments  for  treasons,  crimes  and  neglect  of 
duty  as  citizen.'^^  It  has  been  quite  a  source  of  contention 
whether  the  president  of  the  United  States  by  virtue 
of  the  authority  of  the  constitution  could  without  the 
sanction  of  the  congress  exercise  the  authority  to  grant 
a  general  pardon  or  amnesty.  This  however  seems  to 
have  been  amply  conferred  upon  him  by  act  of  congress, 
and  appears  now  not   to  be  seriously  doubted.^     The 

21 — Ex   parte   Hawkins,    61    Ark.  Bouvicr's  Diet.  Title  Pardons;  Wcl)- 

:U1,  54  Am.  St.  R€p.  209;   State  v.  ster's  Unabridged  Diet. 
Wolfer,    .5.3    Minn.    13,    39    Am.    St.  23— U.  S.  v.  Wilson,  7  Pet.  150; 

Roj).    582;    State    v.    Barnes,    82   S.  Ex  parte   Wells,   18   How.   307;    Ex 

(.'.     14,     17     Am.     St.     Rep.     832;  parte  Garland,  4  Wall.  333;  U.  S.  v. 

Fuller    V.    State,    122    Ala.    32,    26  Paddleford,  9  Wall.  531-543.  Chase, 

So.     146,     82     Am.     St.     Rep.     17;  Chief  Justice:     "  This  proclamation, 

State   V.   Snith.    19    Am.   Dec.    679;  if  it  needed  legislative  sanction,  was 

State  V.  Noore,  62  Mich.  496.     The  fully  warranted  by  the  act  of  July 

court    in    this    case    holds    that    the  17,  1862,  which  authorized  the  pres- 

prisoncr  is  entitled  to  be  reindicted  ident  at  any  time  thereafter  to  ex 

and   retried    licfdrc    lie    cni    be   jniii-  tend  pjirdon  and  amne^sty  to  persons 

ished.  who   liad    p.-nticipated    in   the   rebel 

22 — 8    Am.     L:iw     l?e^.    515;    see  linn,    with     such     exceptions    .-is    he 


Pardons 


255 


right  ill  the  governor  of  our  states  to  exercise  this  power 
is  dependent  upon  the  terms  of  the  constitution  and  the 
law.^ 

§  305.  Imposition  practiced  upon  the  pardoning  power 
vitiates  it.  AVhere  a  pardon  is  obtained 'by  the  practice 
of  fraud,  deception  or  misrepresentation  as  to  the  condi- 
tions and  the  fact  of  the  matter  it  is  null  and  void.'^^  It 
seems  that  if  the  language  of  the  pardon  charter  taken  in 
conjunction  with  the  records  of  the  cause  in  which  the 
pardon  is  granted  the  executive  or  the  otherwise  pardon- 
ing power  has  been  imposed  upon  through  false  statement 
as  to  the  facts  and  conditions  or  the  withholding  mate- 


might  see  fit  to  make.  That  the 
president  had  power,  if  not  other- 
wise, yet  with  the  sanction  of  con- 
gress to  grant  a  general  conditional 
pardon,  has  not  been  seriously  ques- 
tioned." 

24 — Dominick  v.  Bowdoin  44  Ga. 
357;  Ex  parte  Hickey,  4  S.  &  M. 
751;  Story  on  Cont.  Sec.  1496;  Stat« 
V.  Merrill,  16  Ark.  384. 

25 — "The  king  pardoueth  a  felon 
whereof  he  stands  attainted  and  in 
truth  is  not  attainted;  this  is  es- 
pressio  falsi,  and  maketh  the  par- 
don void."  3  Co.  Inst.  238.  "If  a 
man  be  attainted  of  felony  by  judg- 
ment, and  afterwards  the  king  par- 
doneth  generally  the  felony,  it  is 
naught  Avorth,  and  the  reason  thereof 
is,  not  because  by  the  attainder  the 
felony  is  extinct,  but  because  the 
king  is  truly  informed  (as  he  ought 
to  be)  of  the  state  of  the  case;  for 
peradventure,  if  he  had  been  in- 
formed of  the  truth  and  all  the 
proceedings,  he  would  not  have  par- 
doned." Cases  of  Pardons,  6  Co. 
130. 

"It    seems    to    be    laid    down    in 


many  books  that  whenever  it  may 
be  reasonably  intended  that  the 
king,  when  he  granted  a  pardon, 
was  not  fully  apprised,  both  of  the 
heinousness  of  the  crime  and  also 
how  far  the  party  stands  convicted 
thereof  upon  record,  the  pardon  is 
void;  as  being  gained  by  imposition 
upon  the  king.  And  this  very  agree- 
able to  the  reason  of  the  law, 
which  seems  to  have  instructed  the 
king  with  this  high  prerogative  upon 
a  special  confidence  that  he  will 
spare  those  only,  whose  case,  could 
have  been  foreseen,  that  the  law  it- 
self may  be  presumed  willing  to 
have  excepted  out  of  its  general 
rules,  which  the  wit  of  man  can- 
not possibly  make  so  perfect  as  to 
reach  every  particular  case. ' '  2 
Hawk  P.  C.  c.  37,  sec.  8. 

"It  is  a  general  rule  that  when- 
ever it  may  be  reasonably  presumed 
that  the  king  is  deceived,  the  par- 
don is  void;  therefore  any  suppres- 
sion of  truth  or  suggestion  of  false- 
hood, in  a  charter  of  pardon,  will 
vitiate  the  whole,  for  the  king  was 
misinformed."     4  Bla.  398. 


256  Ckiminal  Law 

rial  facts,  then  the  pardon  is  nnll  and  void.^^  So  in 
one  case  it  was  held  that  the  pardon  was  vitiated  by 
the  suppression  of  the  fact  that  the  judgment  was  ap- 
pealed from,  it  appearing  from  the  charter  of  pardon 
that  the  executive  regarded  the  judgment  as  valid  and 
subsisting;  especially  where  the  appeal  was  merely  taken 
for  delay,  and  where  the  punishment  was  discretionary. 

§  306.  The  pardon  must  be  delivered  and  accepted.    In 

order  to  inure  to  the  benefit  of  the  prisoner  the  pardon 
must  be  delivered  to  him  either  in  person  or  his  agent. 
So  long  as  the  instrument  is  in  the  possession  of  the 
executive  the  pardon  is  of  no  effect.  It  may  be  regarded 
as  in  the  nature  of  a  deed  to  real  estate,  delivery  and 
acceptance  is  absolutely  essential  to  its  validity.^'  A  de- 
liveiy  is  complete  where  the  grantor  has  parted  with  all 
control  over  it  with  the  intent  that  it  be  delivered  to  the 
pardonee.  Where  the  instrument  was  delivered  to  the 
warden  of  the  penitentiaiy  as  the  keeper  of  the  prison 
with  the  intent  and  the  instruction  of  the  grantor  that  it 
be  delivered  to  the  prisoner  it  is  a  valid  delivery.^*  A 
delivery  to  an  agent  of  the  prisoner,  and  when  accepted 
by  him  for  the  prisoner  it  becomes  immediately  opera- 
tive.^^ When  delivered  and  accepted  it  cannot  be  re- 
voked.'® 

26 — Dorainick  v.  Bowdoin,  44  Ga.  the  rule  must  be  the  same  in  cap- 

357;    Com.   v.   Kelly,   9   Phila.   586;  ital   ease   and   misdemeanors."     Ex 

State  V.  Lock,  5  Ind.  359.  parte  Hunt,  10  Ark.  284;   Ex  parte 

27— In    the    case    of    the    United  Reno,  66  Mo.  266,  27  Am.  Rep.  337; 

States  V.  Wilson  the  court  says:    "A  Gruhb     v.     Bullock,    44    Ga.     379; 

pardon  is  a  deed  to  the  validity  of  Menchcl  v.  State,  40  Ala.  361. 

whicli   delivery  is  essential,  and  de-  28 — Ex  parte  Powell,  73  Ala.  517; 

livery   is   not   complete   without   ac-  State  v.  Nieholds,  26  Ark.  74;  7  Am. 

ccptancc.     It  may  be  then  rejected  Rep.  600. 

by   the   person  to   whom  it  is  ten-  29 — Rassen  v.  Stelir,  23  Tox.  App. 

dered,  and   if  it  be  so  rejected,  we  287;    In    R*  Edynien,  8  How.  Prnc. 

liavc  discovered  no  power  in  a  court  N.  Y.  478. 

to  force  it  on  him.     It  m^y  be  Hup-  30  — Ex  parte  Reno,  l]G  Mo.  266, 

]>oscd   that   no   being  condemned  to  27    Am.   Rop.   337. 
ili'.'itli    would    rt'ject    a    pardon,    l)Ut 


Pardons  257 

§307.  The  right  to  exercise  pardoning-  power  is  one 
purely  of  discretion.  Tlioro  is  no  law  that  can  force  the 
executive  to  <>rant  a  pardon,  that  is,  he  may  not  be  man- 
damused.  Hence  the  grant  of  a  pardon  is  an  act  of 
grace  and  depends  on  the  individual  opinions  of  the  par- 
doning power.  Many  of  the  states  require  the  governor 
to  file  his  reasons  why  he  issues  a  pardon,  in  the  records 
of  his  office  or  in  the  records  of  some  other  of  the  heads 
of  the  departments,  usually  with  the  secretary  of  state. 
The  common  law  seems  to  have  granted  an  equitable 
claim  upon  the  crown  to  issue  his  pardon  to  one  who  gave 
king's  evidence.  This  claim  for  the  sovereign's  clemency 
did  not  amount  to  an  absolute  right  of  pardon  but  we  are 
left  to  suppose  that  it  was  usually  granted.  There  are 
some  instances  where  the  sovereignties  were  compelled 
as  a  matter  of  right  to  grant  the  pardon,  thus,  where  by, 
the  terms  of  a  statute  (of  which  there  seems  to  have  been 
many  at  various  times)  creating  an  offense  and  providing 
punishment  therefor,  as  where  the  statute  holds  out  im- 
munity to  accomplices  who  bring  their  associates  in  crime 
to  justice  by  testifying  against  them.  Where  the  accom- 
plice in  crime  thus  comply  with  the  terms  of  the  statutes 
and  should  afterward  be  convicted,  such  facts  appearing 
to  the  pardoning  power,  they  would  as  matter  of  law  be 
entitled  to  a  pardon.^^  In  the  light  of  the  recent  decision 
of  the  supreme  court  of  the  United  States  a  statute  re- 
quiring a  witness  to  testify  where  his  testimony  may  be 
taken  as  calculating  to  incriminate  him  in  order  to  be 
compelled  to  testify  against  his  objection  the  statute 
must  confer  upon  him  absolute  immunity.  And  where 
he  so  testifies  his  right  to  a  pardon  in  case  of  a  subse- 
quent conviction  is  a  positive  and  existing  right  which 
tlie  executive  not  ignore.^^ 

31— Chitty   Cr.  L.   766;    1   Leach       man   v.   Hitchcock,   142  U.   S.   547 ;' 

121-5.  Brown  v..  Walker,   161  U.   S.   591; 

32— Chitty  Cr.  L.    767;    Councel-       Elliott   v.    State    (Tex.),   19   S.  W. 
C.  L.— 17 


258  Criminal  Law 

§  308.  The  courts  will  take  judicial  knowledge.  The 
courts  take  judicial  notice  of  the  granting  of  a  general 
pardon  or  amnesty.  AVhenever  the  same  is  solemnized  as 
an  official  act  it  then  becomes  effective  and  inures  to  the 
benefit  of  those  for  whom  it  was  intended.  In  all  cases  of 
special  or  particular  pardons  granted  to  individuals  the 
courts  do  not  take  judicial  knowledge  that  the  same  ex- 
ists, but  one  claiming  exemption  from  the  consequence  of 
a  conviction  is  required  to  and  must  plead  and  prove  that 
the  pardon  was  granted  and  delivered  and  accepted,  and 
in  the  case  of  an  unconditional  pardon  he  is  required  in 
addition  to  show  that  he  complied  with  the  conditions 
imposed.^' 

§  309.  The  president  of  the  United  States  may  not  par- 
don in  the  case  of  impeachment.  By  the  authority  of  the 
constitution  the  president  of  the  United  States  is  ex- 
pressly prohibited  the  power  to  grant  a  pardon  in  cases 
of  impeachment.  A  similar  provision  we  believe  is  to  be 
found  in  the  constitution  of  the  several  states.  The 
power  to  impeach  is  granted  to  congress  and  in  the 
states  to  the  legislature.  Under  the  English  government 
the  power  of  impeachment  was  in  the  parliament  and  was 
never  assumed  as  the  prerogative  of  the  king.  It  does 
not  clearly  appear  why  impeachment  was  excepted  out 
of  the  powers  of  the  king,  nor  why  tliis  provision  is  in 
the  constitutions  of  our  states  and  the  federal  govern- 
ment except  upon  the  theory  that  from  the  nature  of  the 
crime  itself  it  was  thought  to  be  unwise  to  place  such 
power  in  the  hands  of  one  man.  It  seems  that  at  com- 
mon Liw  the  king  had  the  authority  to  pardon  for  the 

249;    Note    to   Evans   v.    O'Connor,  (Ky.)    453;    Scoot  v,   U.  S.,  8  Ct. 

174  Mass.  287,  75  Am.  St.  Hep.  346.  CI.    457;    Haym.   v.   U.    S..    Ct.   CI. 

A  full  discussion  here  in  note.  443;  Warren  v.  U.  S.,  7  Ct.  CI.  501; 

33 — Armstrong's       Foundry,       7  State  v.  Barnos,  32  S.  C.  14,  17  Am. 

Wall.  766;  Bragg  v.  Lorio,  1  Wood  St.  Rep.  832,  32  S.  C.  14,  and  the 

200;    Hedges    v.    Price,    2    W.    Va.  cases  cited. 
102;    Terrell    v.    Rankin,     2     Bush 


Pardons  259 

impeachment  after  the  conviction.  But  by  12  and  13 
Wm.  Ill  pardon  under  the  great  seal  was  not  pleadable 
in  bar  of  impeachment.^ 

§310.  Contempts  are  crimes  and  may  be  pardoned. 

We  have  seen  in  our  chapter  "Contempts"  that  a  con- 
tempt of  court  is  regarded  by  the  weight  of  the  authori- 
ties as  a  crime  and  that  the  executive  may  pardon  the 
contemnor.  ''The  whole  doctrine  of  contempts  goes  to 
the  point  that  the  offense  is  a  wrong  to  the  public,  not 
to  the  person  of  the  functionary  to  whom  it  is  offered,  con- 
sidered as  an  individual.  It  then  follows  that  the  con- 
tempts of  court  are  either  crimes  or  misdemeanors,  in 
proportion  to  the  aggravation  of  the  offense,  and  as  such 
are  included  in  the  pardoning  power  of  the  state.^^  The 
courts  of  the  United  States  in  construing  the  power  of 
the  president  have  held  that  he  had  the  power  to  pardon 
for  a  contempt.  Some  of  the  states  have  held  that  it  is 
not  a  criminal  action  and  hence  could  not  be  pardoned, 
but  this  view  is  not  supported  by  the  authorities. 

§  311.  The  effect  of  a  pardon.  Legal  infamy  arose  at 
the  common  law  where  one  was  convicted  of  treason  and 
felony  and  any  specie  of  crimen  falsi  which  had  the  effect 
of  incapacitating  him  to  testify  as  a  witness.^^  In  those 
jurisdictions  of  the  several  states  where  the  common  law 
is  followed  and  the  same  has  not  been  changed  by  the 
statutes  the  same  rule  is  the  law,  but  since  a  pardon 
gives  a  party  convicted  of  a  crime  new  capacity,  credit 
and  character  it  restores  him  to  the  same  rights  pos- 

34— See  Cont.  of  States,  1  Chitty  36— Stark.  Ev.  Part  4,  Vol.  94; 

Cr.  L.  765.  Com.  v.  Ohio  &  Pa.  R.  R.,  1  Gratt. 

35— Ex  parte  Hickey,  4  S.  &  M.       329;  Rivers  v.  State.  10  Tex.  App. 
751;   4  Opin.  Atty.  Gen.;    5  Opin.        177;     United    States    v.    Jones,    2 
Atty.    Gen.    579;     State    v.    Sauve-       Wheeler  451. 
net,  24  La.  Ann.  119,  13  Am.  Rep. 
115.     See    Taylor   v.    Goodrich,    40 
S.  W.  515. 


260  Criminal  Law 

sessed  by  him  before  the  conviction  and  with  it  his 
qualification  to  testify  as  a  witness.  It  seems  though 
that  if  the  crime  of  which  he  is  convicted  has  annexed 
to  it  a  disability  as  in  the  case  of  perjuiy  as  where  the 
statute  provides  that  if  one  convicted  of  perjury  shall 
be  disqualified  as  a  witness  the  pardon  does  not  restore 
him  to  his  former  credit."  In  cases  of  this  character  the 
charter  of  pardon  should  specifically  restore  the  party 
to  his  former  credit  or  specifically  remove  the  disability.^* 

37— Greenl.    Ev.    379;    Martin    v.  38— Rivers  v.  State,  10  Tex.  App. 

State,   21    Tex.   App.    1;    Hester   v.       177. 
Com.,  85  Pa.  St.  139;  State  v.  Tim- 
mons,  2  Harr.   (Del.)   528. 


CHAPTER  XIII 

SENTENCE   AND   PUNISHMENT 

§  312.  Punishment  at  common   law.  §  ;520.  Punishment    at    common    law 
§  313.  Punishment  of  felonies.  was   of   twofold   character. 

§  314.  Other      consequences      follow  §  321.  Sentence,  when  imposed. 

conviction  for  crime.  §  322.  Sentence    must    be    in    con- 
§  315.  Punishment    in    the    absence  formity  to  law. 

of  Statute.  §  323.  Cruel    and    unusual    punish- 
§  316.  Some  of  the  punishments  of  ments. 

common  law  obsolete.  §  324.  Modification  of  sentence. 

§  317.  Punishment        of        common  §  325.  Punishment  must  be  inflicted 

scolds.  as  the  statute  provides. 

§  318.  Benefit  of  clergy.  §  32o.  Cumulative  statutes. 

§  319.  In    the    absence    of    statute,  §  326a.  Different    punishments    for 

common     law     punishment  different  sexes. 

may  be  used. 

§312.  Punishment  at  common  law.  At  common  law 
the  punishment  for  treasons  and  felonies  were  by  death, 
misdemeanors  by  fine  and  imprisonment,  and  perhaps  by 
transportation.  There  were  some  offenses  punished  by 
whipping,  some  by  pillory,  some  by  the  trumble,  some  by 
ducking  stool,  and  others  by  splitting  nostrils.^  Of  those 
adopted  by  us  of  the  American  States  is  that  of  punish- 
ment by  death  or  as  we  call  it  capital  crimes,  and  those 
by  imprisonment  in  the  penitentiary  for  infamous  crimes 
less  than  capital,  and  a  fine  and  imprisonment  usually 
in  the  county  jails  for  the  lesser  offenses.  A  brief  sketch 
of  these  punishments  inflicted  by  the  common  law  per- 
haps would  serve  a  good  purpose  here. 

§  313.  Punishment  of  felonies.  All  felonies  were  pun- 
ished by  death,  and  the  difference  in  the  degree  of  the 

1— Chitty's  1  Cr.  L.  797  to  801; 
2  Hale  604  to  411;  4  Blackstone 
403  to  407. 

261 


262  Ckiminal,  Law 

crime  or  rather  the  criminal  intensity  of  the  wrong  to  the 
state  or  the  character  of  the  offense  did  not  lessen  the 
degree  of  the  punishment.  In  the  general  consequences 
following  conviction  of  treason  and  some  other  felonies 
there  was  a  marked  difference.  Of  this  difference  we 
have  spoken  in  another  place  but  it  becomes  important 
that  we  partially  repeat.  But  this  difference  did  not  arise 
out  of  the  judgment  of  the  court  for  in  either  case  the 
judgment  was  the  same  as  the  sentence  that  the 
accused  be  executed,  but  it  arose  from  the  effect  of  the 
law  itself  which  provided  that  when  an  English  subject 
was  convicted  of  a  felony  and  a  treason,  then  in  addition 
to  the  judgment  and  the  sentence  that  he  suffer  death 
as  a  punishment  for  the  crime,  he  also  thereby  forfeited 
all  his  property,  lands  and  estates.  As  the  punishment 
for  treason  and  felonies  were  the  same,  judgment  and  the 
sentence  was  the  same.^ 

§314.  Other  consequences  following  conviction.     The 

consequence  following  the  conviction  and  the  judg- 
ment and  sentence  of  felony  consisted  first  of  the  cor- 
ruption of  blood,  and,  second,  forfeiture  of  goods  and 
lands  to  the  king,  the  effect  of  which  is  denoted  by  the 
term  "Attainder."  The  corruption  of  the  blood  had  the 
effect  of  destroying  the  relationship  existing  between  the 
felon  and  his  heirs,  or  in  other  words  the  felon  became 
civilly  dead  without  the  right  of  inheritance  to  his  chil- 
dren and  other  relations  because  of  absolute  forfeiture  of 
all  of  his  goods  and  lands  to  the  king,  which  escheated 
upon  the  theory  we  suppose  that  the  prisoner  had  no  heirs. 
In  the  case  of  ordinaiy  felony  the  corruption  of 
blood  seems  to  have  been  one  of  the  consequences,  but 
in  the  case  of  treason  the  corruption  of  blood  and  the 
forfeiture  always  followed,  and  this  appears  to  be  the 

2—1  Chitty's  Cr.  779  to  810;  4 
Blackstonc  380;  1  Chilty'B  Cr.  L. 
724  to  742. 


Sentence  and  Punishment  263 

real  distinction  between  felonies  and  treasons.^  Treason, 
because  of  the  nature  of  the  crime  was  of  the  highest 
culpability  and  required  some  greater  punishment  than 
crimes  of  less  malignity.  These  distinctions  were  very 
ingenious  but  the  forfeiture  of  goods  and  lands  and  the 
corruption  of  blood  has  never  in  this  country  been  looked 
upon  with  any  favor,  and  we  know  of  no  case  in  the 
United  States  where  it  was  ever  attempted  to  engraft 
this  common  law  doctrine  on  the  laws  of  punishment.* 
To  avoid  this  unjust  feature  of  the  common  law  the  fram- 
ers  of  the  Federal  constitution  provided  that  "Congress 
shall  have  the  power  to  declare  the  punishment  for  trea- 
son,® but  no  attainder  of  treason  shall  work  corruption 
of  blood,  or  forfeiture,  except  during  the  life  of  the  at- 
tained." And  it  appears  that  by  recent  statute  of  Great 
Britain  the  corruption  of  blood  and  the  forfeiture  of 
estates  have  been  abolished.^ 

§  315.  Punishment  in  the  absence  of  statute.  We  as- 
sume that  in  the  absence  of  a  statutory  provision  estab- 
lishing the  punishment  in  the  case  of  felony  the  court 
would  be  authorized  to  sentence  the  accused  to  death  and 
that,  too,  whether  it  was  a  statutory  or  a  common  law 
felony.'  We  think,  however,  practically,  this  is  of  very 
little  importance  because  the  statutes  of  the  several  states 
have  appended  to  every  offense,  especially  of  the  nature 
of  felonies  its  appropriate  punishment  which  in  most 
cases  is  confinement  in  the  penitentiary  with  sentence 
of  hanging  in  the  case  of  murder,  rape,  and  perhaps  a 
few  others. 

3— Chitty's  Cr.  L.  726,  727,  728,  5— Con.  United  States,  Art.  Sec. 

729;    2  Hale  234;   4  Bla.  380,  382,  3;  3  Story  on  Cons.  169. 

383.  6— Act  of  Parliament,  1870. 

4—2  Johns  Rep.  236-267;  8  Johns  7—4  Bla.  Com.  98;  Com.  v.  Bar- 
Rep.  520 ;  1  Benney  's  Rep.  1 ;  Kirks  low,  4  Mass.  439. 
Rep.   228-291;    1   Days   Cases  4;    1 
Cox  New  Jersey  R«p,  56,  266,  315, 
340. 


264:  Crimixal  Law 

§  316.  Some  of  the  punishments  of  the  common  law 
obsolete.  In  the  United  States  puiiisbnient  by  whipping 
and  the  pillory  and  splitting  of  nostrils  have  never  been 
inflicted  by  the  courts  to  any  great  extent.  The  pillory 
was  in  early  colonial  times  frequently  inflicted  as  pun- 
ishment in  petit  offenses.  Whipping  was  usually  in- 
flicted in  i^etit  larceny  and  other  offenses  characterized 
by  great  moral  depravity.  Punishment  by  the  pillory 
was  inflicted  for  the  off"enses  of  perjury,  forgery,  and  all 
crimen  falsi.  These  punishments  were  very  ignominious, 
disgraceful  and  cruel.  Whipping  in  some  of  the  states 
as  a  punishment  is  inflicted  as  a  statutory  provision  in 
certain  crime  as  that  of  wife  beating  and  the  like.^ 

§  317.  Punishment  of  common  scolds.  At  the  common 
law  there  was  an  offense  known  as  "Common  Scold." 
This  was  a  peculiar  and  speciflc  offense,  and  applied  to 
scolding  women,  exclusively;  that  is  to  those  who  were 
given  to  loud,  indecent  and  boisterous  language  to  the 
disturbance  of  her  neighbors,  and  the  public  generally. 
To  find  an  appropriate  penalty  for  such  conduct  in  women 
the  common  law  devised  a  very  humiliating  punishment 
by  securing  the  offender  in  a  kind  of  chair  or  stool  known 
as  "Trebucket,"  " Castigatory, "  or  "Cucking  Stool" 
and  thereupon  ducking  her  in  a  pool  or  a  pond  of  water. 

This  very  barbarous  and  withal  very  disgraceful  pun- 
ishment seems  not  to  have  been  inflicted  to  any  great 
extent  in  the  American  states  though  it  was  of  frequent 
use  in  the  early  colonial  times.  Though  the  offense  of 
"cnnnnon  Scolds"  as  a  common  law  offense  has  been 
riiMpK'iitly  punished  in  this  coniiti-y  yet  the  ])unisliment 
usually  has  been  l)y  line  and  iiiijtrisoninenl.^    The  offense 

8—1  Cliitty  Cr.  L.  779  to  801;   4  9— U.   S.   v.   Royall.   ;]   Cr.   C.   C. 

Bla.  Com.  403  to  407;  Com.  V.  Kc-;ir-  (>20;    4    Bla.    Com.    109;     1    Chilty 

iicy,   1    Hawks   ry.i.     For  a   full   dis-  Cr.  L.   779,  801,  for  full  discussion 

cuM.sion    of   tlie  ani-iciit   puuislnncnts  of   tho   oomuion    law    iimiisliiiiont   in 

see  "  liy  Order  of  tlio  Kiu}^;"  also  this  ofTcnsL". 
"Notre   Dame,''  liy   Victor   lIn;,'o. 


Sentence  and  Punishment  265 

appears  to  have  fallen  into  disuse  or  at  least  we  do  not 
come  in  contact  with  any  authorities  holding  that  the 
offense  as  at  common  law  is  enforced  in  the  United 
States.  Such  a  punishment  and  such  exclusive  applica- 
tion of  the  punishment  to  one  class  of  citizens  is  contrary 
to  the  spirit  of  our  institutions,  and  the  offense  has  taken 
tlie  punishment  prescribed  for  other  offenses  such  as 
disturbing  of  the  peace  and  the  like. 

§318,  Benefit  of  clergy.  The  foregoing  outline  of 
the  punishments  in  England  about  the  time  the  settle- 
ment was  taking  place  in  the  American  colonies  seem  to 
be  sufficient  for  this  volume.  When  the  occasion  arises 
in  the  line  of  professional  duty  or  Avhen  in  the  pursuit  of 
scholastic  pleasure  a  glimpse  into  the  antique  is  desired 
other  works  written  under  the  immediate  influence  of 
such  laws  would  be  the  best  avenues  to  accuracy. 

Still  there  is  another  feature  of  the  common  law  pun- 
ishments of  which  we  have  not  spoken;  that  of 
''Benefit  of  Clergy,"  was  devised  for  the  purpose  of 
avoiding  the  infliction  of  capital  punishment,  which  in- 
variably followed  the  conviction  of  a  felony.  We  will  not 
in  this  connection  attempt  a  discussion  or  an  explanation, 
because  in  our  country  no  particular  benefit  can  be  gath- 
ered from  it,  other  than  to  say  that  the  clergy  in  the 
earliest  time  of  English  history  were  to  a  great  extent  a 
privileged  class,  and  it  appears  that  tliis  class  of  persons 
were  granted  immunity  for  punishment  for  particular 
offenses.  Then  in  the  process  of  time  this  privilege  was 
allowed  to  include  the  laity,  to  the  extent  of  exempting 
them  from  punishment  for  the  first  offense  of  certain 
crimes.  We  also  find  that  the  statute  of  the  United 
States  provided  in  our  early  histoiy  that  the  benefit  of 
clergy  should  not  be  pleaded  by  any  person  who  had  been 
convicted  of  a  capital  offense  against  the  United  States. 
Those  who  desire  may  find  a  complete  historical  sketch 
of  this  peculiar  and  most  ingenious  contrivance  of  our 


266  Criminal  Law 

ancestors,  by  consulting  Blackstone's  Commentaries  and 
Chitty's  Criminal  Law  "Title  Benefit  of  Clergy." 

§  319.  In  the  absence  of  statute,  punishment  may  be 
under  common  law.  A  great  number  of  offenses  at  com- 
mon law  were  misdemeanors  for  which  a  punishment  by 
fine  or  by  fine  and  imprisonment  was  inflicted.  So  in  the 
absence  of  a  penalty  affixed  by  statute  the  courts  have  the 
power  to  resort  to  the  common  law  and  will  inflict  fine 
and  imprisonment  in  accordance  therewith.^® 

§  320.  Punishment  at  conamon  law  was  of  two  fold 
character.  1.  That  which  arose  in  consequence  of  the 
violation  of  the  law,  and  2.  That  which  arose  in  conse- 
quence of  the  judgment  of  conviction.  The  latter  which 
consisted  in  the  attainder  of  the  defendant,  the  corrup- 
tion of  blood  and  the  forfeiture  of  goods  and  land  has  not 
been  adopted  in  our  country  as  a  part  of  the  common 
law  but  many  of  our  statutes  have  appended  to  them  in 
addition  to  the  punishment  or  penalty  for  the  violation, 
certain  forfeitures  such  as  the  right  to  hold  office  if  con- 
victed of  certain  felonies,  such  as  the  crime  of  perjury, 
forgery  and  the  like.  The  disability  attached  is  that 
the  defendant  shall  be  forever  barred  of  the  right  to 
testify,  and  is  branded  Avith  perpetual  infamy.  This  is 
also  the  consequence  visited  upon  these  classes  at  the 
common  law,  and  in  the  absence  of  a  statute  abridging 
or  modifying  this  rule  of  the  common  law,  a  conviction 
of  the  crime  would  in  addition  to  the  penalty  imposed 
by  statute,  be  barred  of  the  right  to  testify  in  a  court 
of  justice.  This  forfeiture  of  this  right  of  citizenship  as 
the  consequence  of  the  final  conviction  for  any  of  the 
crimes  known  as  infamous,  follows  the  accused  through- 
out his  life,  and  unless  ho  is  restored  to  liis  citizenship 

lO—U.    S.    V.    Co<.lacl«c    Gallison,        01  Ark.  220,  32  S.  W.  080;  Stato  v. 
4B8;    Smith    v.    People,    25    III.    17,       Wilson,  2  Root  (Conn.)  62. 
70  Am.   Dec  780;    Stato  v.  Corbitt, 


Sentence  and  Punishment  267 

through  the  pardoning  power  he  is  prohibited  to  testify 
as  a  witness  in  any  matters  that  may  come  before  the 
courts,  even  where  he  has  a  cause  of  action,  the  establish- 
ing of  which  is  dependent  upon  his  own  testimony." 

There  are  some  offenses  mainly  statutory  though  not 
infamous  provide  for  a  forfeiture  of  some  of  the  civil 
rights  of  the  citizen  such  as  the  right  to  hold  office. ^^ 

§  321.  Sentence  when  imposed.  After  verdict  and  the 
motion  for  a  new  trial  and  arrest  of  judgment  has  been 
disposed  of,  for  any  reason  the  court  fails  to  pronounce 
the  sentence  of  the  court  upon  the  verdict  of  conviction, 
and  where  the  record  discloses  no  judgment,  the  court 
is  empowered  under  its  general  power  to  impose  the 
sentence  at  a  subsequent  tenii.^*  Where  the  accused 
pleads  guilty  at  one  term  of  the  court  and  is  absent 
by  escape  for  a  long  time,  the  court  failing  at  the 
term  at  which  the  plea  is  made  to  pass  the  sentence, 
upon  the  recapture  of  the  defendant  pass  sentence,  there 
being  no  statute  requiring  that  the  sentence  be  passed  at 
the  same  term  of  the  plea.^* 

§  322.  Sentence  must  be  in  conformity  to  law.  So,  also, 
where  the  statute  provides  in  terms  that  the  sentence 
of  the  court  shall  be  rendered  only  after  a  specified 
time  from  the  conviction,  a  sentence  passed  within  the 
time  limited  does  not  thereby  make  it  illegal,  provided 
the  accused  has  presented  his  preliminary  motions  for 
stay  of  the  judgment,  the  motion  in  arrest  of  judgment, 

11— Garland    v.    State,    43    Tex.  13— State    v.    Watson,    8    S.    W. 

330;   Davis  v.  State,  35  Tex.  118;  383  (Mo.)- 

Triggs  V.  State,  49  Tex.  645;   Pale  14— State  v.  Thurman,  15  S.  W. 

V.    Lunde,    1    Root    195;    U.    S.    v.  (Ark.)   84;   People  v.  Felix,  45  Cal. 

Jones,    2    Wheeler    Cr.    Gas.    451;  163;  People  v.  Eiley,  53  Mich.  260, 

Railway  Co.  v.  Howell,  40  S.  W.  98,  18  N.  W.  849. 
Fed.  Gas.  15493;   9  Op.  Atty.  Gen. 
497. 


268  Crimiiq-al  Law 

and  motion  for  a  new  trial,  and  the  same  has  been  passed 
upon  by  the  court .^^  It  appears  though  that  if  any  of 
these  motions  are  pending  the  sentence  would  be  illegal 
unless  however  the  motions  failed  to  set  out  meritorious 
reasons  or  unless  the  same  are  waived.  Thus  we  gather 
from  the  foregoing  that  at  the  common  law  the  court  had 
the  power  to  defer  sentence,  if  for  any  reason  either  for 
the  convenience  of  the  court  or  for  the  lack  of  time  of  the 
term  or  in  the  furtherance  of  justice  or  by  the  escape  of 
the  defendant,  the  sentence  of  the  conviction  could  not  be 
given.  But  where  the  statute  provides  how  and  when  the 
sentence  shall  be  passed  then  the  court  is  required  to 
conform  to  these  requirements  so  that  no  rights  of  the 
defendant  shall  be  prejudiced.^^ 

§  323.  Cruel  and  unusual  punishments.  The  provision 
of  the  constitution  of  the  United  States  that  cruel  and 
unusual  punishments  shall  not  be  inflicted  is  a  restriction 
upon  the  federal  government.  This  provision  of  the 
federal  constitution  is  in  substance  a  part  of  the  constitu- 
tions of  the  several  states,  and  of  course  a  restriction 
upon  the  state  governments. 

No  certain  and  definite  rule  can  be  laid  down  as  to 
what  will  constitute  this  cruel  and  unusual  punishment. 
Some  courts  hold  that  punishment  under  a  state  of  facts 
come  within  the  constitutional  i)rohibitions  while  others 
might  hold  to  the  contrary.  The  only  safe  rule  is  to 
consult  the  rules  and  decisions  of  the  courts  of  the 
particular  jurisdiction,  and  to  apply  the  fundamental 
principles  of  justice  to  the  case  in  hand,  of  course  to  be 
guided  as  near  as  possible  by  the  precedents  and  the  reas- 
oning of  the  reported  cases. 

15— Com.  V.  O'Bri.in,  89  Ky.  .•{.'54,  16— People    v.    .lolmson,    88    C.-il. 

12  S.  W.  i31G;   Holly  v.  Com.,  :]G  S.  171;   People  v.  Ehcrluirt,  104  N.  Y. 

W.  532  (Ky.);   P.irrish  v.  State,  45  .Wl ;    Stntc    v.    Eisenhour,    i:{2    Mo. 

Tex.   51.  140. 


Sentence  and  Punishment  269 

It  is  however  well  settled  that  where  a  statute  provides 
a  forfeiture  of  office  as  a  part  of  the  punishment  for  an 
offense  that  it  is  not  a  cruel  and  unusual  punisliment.^' 

The  punishment  against  which  the  prohibition  of  the 
constitution  is  intended  to  reach  is,  that  class  of  punish- 
ments which  were  regarded  by  the  common  law  as  bar- 
barious  and  brutal,  such  as  the  whipping-post,  and  pil- 
lory, a  cutting  off  the  nose,  burning  at  the  stake,  breaking 
on  the  wheel  and  quartering,  and  the  like.^^  The  legis- 
lature has  sufficient  power  it  is  now  conceded  by  all 
authorities,  to  provide  for  the  infliction  of  punishments, 
which  in  its  judgment  or  discretion  may  be  decided  upon. 
This  is  not  understood  to  mean  that  the  legislature  is 
unlimited  in  all  cases,  but  the  courts  are  the  final  arbiters 
whether  it  has  gone  beyond  its  power.  The  legislature 
has  the  undoubted  right  to  provide  for  punishments  in 
addition  to  the  punishments  provided  by  common  law. 
It  has  been  held  that  sterilization  which  consists  in  a 
surgical  operation  known  as  vasectomy,  and  which  has 
the  effect  of  taking  away  the  power  of  pro-creation  may 
be  inflicted  as  a  punishment,  and  that  it  does  not  come 
under  the  inhibitions  of  the  constitution  "against  the  in- 
fliction of  cruel  and  unusual  punishments."  This  opera- 
tion consists  of  ligating  and  resecting  a  small  portion  of 
the  vas  deferens. ^^ 

§324.  Modification  of  sentence.  The  rule  at  common 
law  was  that  a  court  could  for  any  reason,  before  its 
final  adjournment  amend  or  modify  its  judgment.  This 
rule  in  the  absence  of  a  statute,  would  be  the  rule  with  us 
in  this  countiy.^"  If,  however,  the  court  had  adjourned  for 

17— Parker   v.    People,    3    Cowen  Ind.  404,  32  N.  E.  1019;.  State  v. 

486,  15  Am.  Dec.  320-2.  Fallen,  79  Wash.  165,  126  Pac.  705. 

18— In  re  O  'Shay,  11   Cal,  App.  19— State  v.  Fallen,  77  Wash.  165, 

568,  105  Pac.  777;  Coolej  on  Cons.  176  Pac.  75. 

Lim.  7  Ed.  471;  Hobbs  v.  State,  133  20— Com.  v.  Weighmoth,   79  Am. 


270  Criminal  Law 

its  term,  then  it  lost  its  further  control  over  its  proceed- 
ings. Where  the  statute  provides  a  punishment  the  court 
as  a  general  rule  is  compelled  to  follow  the  statute. 
Thus  if  the  statute  provides  that  for  a  certain  offense, 
the  defendant  shall  be  confined  in  the  penitentiary  for 
a  stated  period  at  hard  labor,  then  a  failure  of  the 
court  to  include  this  in  his  sentence  the  judgment  accord- 
ing to  some  authorities  would  be  void.^^  Upon  this  point, 
however,  there  is  a  diversity  of  opinion,  in  this,  that  if 
the  sentence  is  below  the  minimum  the  weight  or  at 
least  a  slight  preponderance  of  the  authorities  support 
the  proposition  that  the  judgment  of  the  court  is  only 
voidable  upon  the  reason  that  the  defendant  has  not 
been  prejudiced  because  the  penalty  is  less  than  the  mini- 
mum provided  by  law.^^  So,  also,  where  the  court  inflicts 
under  its  judgment  a  greater  punishment  than  is  provided 
by  law  the  authorities  are  also  almost  hopelessly  at  vari- 
ance upon  the  proposition  whether  the  judgment  is  void 
or  merely  voidable.  In  the  federal  courts  though  the 
rule  appears  to  be  well  settled,  that  if  the  statute  is  not 
conformed  to,  the  sentence  is  void,  and  the  defendant 
can  be  discharged  upon  the  writ  of  habeas  corpus. 

We  think  this  whole  matter  rests  upon  the  one  proposi- 
tion to  the  effect,  that  if  the  defendant  has  not  been 
injured  by  reason  of  the  illegal  sentence,  that  is,  if  it  is 
less  than  the  minimum  allowed  by  the  law,  it  may  be 
regarded  as  a  mere  regularity,  and  the  defendant  has  no 
right  to  complain,  for  the  reason  that  he  perhaps  is  in  a 
better  position  than  he  would  be,  if  the  same  had  not 
occurred,  for  the  court  erred  in  his  favor.  It  is  a  well 
settled  principle  that  if  the  defendant  is  not  prejudiced 

Dec.    776;    2   Allen    144;    Ex   parte  Ex    parte    Karskendick,    93    U.    S. 

Long,  18  Wall.  1G:j;  Com.  V.  Foster,  396;    Lark    v.    Stale,    55    Ga.    435; 

122  Mass.  323;  Jobe  v.  State.  28  Ga.  People  v.  Rou.se,  72  Mich.  59;   Ba- 

235.  rarla  v.  State,  13  Mo.  94. 
21— In  re  .TohnHon.  46  Fed.  478; 


Sentence  and  Punishment  271 

or  could  not  have  been  prejudiced,  by  the  ruling  of  the 
court  having  jurisdiction  of  the  person  and  the  subject 
matter,  he  has  no  right  to  a  reversal  of  the  judgment.^^ 
That  in  such  case  the  defendant  may  during  the  term 
of  the  court  at  which  sentence  was  imposed,  upon  motion 
to  the  court  have  the  sentence  corrected,  so  as  to  conform 
to  the  law,  and  that  it  would  be  the  duty  of  the  trial 
court  to  make  the  correction  and  to  impose  any  sentence 
Avithin  his  discretion  within  limits  of  the  statute,  but 
{ifter  the  adjournment  of  the  term,  the  defendant  is  not 
allowed  a  correction  of  the  same  by  appeal,  writ  of  error 
or  habeas  corpus.  But  where  the  judgment  imposing 
sentence  is  in  excess  of  the  maximum  punishment,  the 
defendant  may  have  the  same  corrected  by  appeal  or  writ 
of  error,  but  in  the  event  the  defendant  fails  to  adopt 
this  manner  of  correcting  it,  the  rule  appears  to  be  sup- 
ported by  the  weight  of  authorities  that  the  judgment 
is  good  as  to  that  part  of  the  sentence  which  is  authorized 
by  law  to  the  extent  of  the  maximum,  and  void  as  to  the 
excess,  and  that  the  prisoner  may  have  himself  released 
on  habeas  corpus.  There  are  authorities  and  sound  rea- 
sons for  the  proposition  that  where  the  judgment  of  the 
court  is  correct  (except  as  to  the  want  of  jurisdiction  in 
extending  the  punishment  beyond  the  maximum),  the 
writ  of  habeas  corpus  may  be  resorted  to  for  the  purpose 
of  correcting  the  judgment,  and  directing  the  court  to 
correct  the  sentence  so  as  to  conform  to  the  customary 
or  statutory  punishment.^* 

23— state  v.  James,  37  Conn.  355;  Bowen,  25  Fla.  214;  Ex  parte  Bul- 

Ilarmiston    v.    Lewistown,    153    111.  ger,  60  Cal.  438.     In  In  re  Bonner, 

313.  Mr.    Justice   Fields   says:      "Much 

24 — See  the  following  authorities  complaint  has  been  made  that  per- 

for    the    proposition    of    the    text.  sons  are  often  discharged  from  ar- 

People  V.   Jacobs,  66  N.   Y.  8;    Ex  rest  and   imprisonment   where   their 

parte  Mooney,  26  W.  Va.  36;  In  re  conviction,  upon  which  such  impris- 

Grayham,    74   Wis.   450;    Ex   parte  onment  was  ordered,  is  perfectly  cor- 

Van  Hagan,  25  O.  St.  426;  Ex  parte  rect,  the  excess  of  the  jurisdiction 


272  Criminal  Law 

§  325.  Punishment  must  be  inflicted  as  the  statute  pro- 
vides. AMicre  the  law  provides  that  the  punishment 
shall  be  inflicted  in  a  certain  manner  it  must  be  inflicted 
in  that  way."  So  where  the  penalty  is  death  by  hang- 
insr,  the  executive  officer  must  execute  the  same  as  the 
judgment  provides;  for  if  instead  of  hanging  the  officer 
beheads,  this  would  be  murder.  So,  also,  the  law  is, 
that  when  an  officer  is  directed  to  execute  a  sentence 
of  a  court  in  a  certain  manner  he  is  compelled  to  con- 
form to  the  judgment  and  sentence.  So  no  one  but  the 
officers  authorized  by  law  are  allowed  to  execute  a  sen- 
tence. At  the  common  law  the  manner  of  executing 
the  death  penalty  was  as  a  general  rule,  by  hanging  until 
the  party  was  dead.  The  legislature  evidently  has  the 
constitutional  power  by  reason  of  its  inherent  powers  to 
provide  that  the  death  penalty  be  inflicted  in  any  manner, 
provided  it  does  not  conflict  with  the  prohibition  of  the 
constitution,  that  no  unusual  and  cruel  punishments  shall 
be  inflicted.  The  execution  of  the  death  penalty  by  an 
unauthorized  person  is  murder.  So  the  legislatures  of 
the  several  states  have  the  undoubted  power,  limited  only 

of  the  court  being  in  enlarging  the  judgment   in    those    particulars   for 

punishment  or  enforcing  it  in  a  dif-  which  the'  writ  is  issued,  would  not 

ferent  mode  or  place  than  provided  answer,   for   his   relief   would   come 

bylaw.    But  in  such  case  there  need  upon  a  new   trial;    and  his  remedy 

be  no  failure  of  justice;   for  where  must  be   sought  for  such  errors  by 

the  conviction  is  correct  and  the  er-  appeal   or  writ  of  error."     151  U. 

ror    or    excess    of    jurisdiction    has  S.  242. 

been  as  stated,  there  does  not  seem  25 — See  the  following  authorities 
to  be  any  good  reason  why  juris-  for  the  text:  Chitty  Cr.  Law  782, 
diction  of  the  prisoner  may  not  be  783,  786;  4  Blackstone  404;  Booth 
reassumed  by  the  court  that  im-  v.  People,  186  111.  43,  57  N.  E.  1129, 
posed  the  sentence  in  order  that  its  note  to  same,  78  Am.  St.  E.  235,  and 
defect  may  be  corrected.  It  is  true  note;  Sartain  v.  State,  10  Tex.  App. 
where  there  arc  also  errors  in  the  651;  Clark  v.  Com.,  21  Gratt  777; 
trial  of  the  case  affecting  the  judg-  State  v.  Carter,  2  Ind.  204;  Dolin's 
mont  not  trenching  upon  it«  juris-  Case,  1  Mass.  209;  Harlan  v.  Ilop- 
diction,  tlie  mere  remanding  the  kins,  21  Kan.  638;  Stokes  v.  War- 
prisoner  to  the  original  court  that  den,  66  N.  Y.  342. 
impo.scd  the  sentence,  to  correct  the 


Sentence  and  Punishment  273 

by  the  laws  and  constitution  of  the  United  States,  and 
their  own  respective  constitutions,  to  enact  any  law,  and 
append  thereto  any  penalty  or  punishment  for  its  viola- 
tion deemed  by  them  appropriate  to  promote  the  health, 
comfort,  safety,  and  the  welfare  of  the  state.  And  to  pro- 
vide how,  who,  when,  and  where  the  penalties  and  punish- 
ments shall  be  executed.  In  the  absence  of  the  statute 
providing  who  should  do  it,  the  sheriff  of  the  county 
where  the  sentence  was  imposed,  would  be  authorized 
under  his  common,  law  powers,  as  the  executive  officer 
to  execute  it.  And  in  the  event  of  no  statute  providing- 
how  the  sentence  is  to  be  inflicted  the  common  law  would 
supply  the  defect  in  this  respect,  and  the  executive  officer 
would  be  bound  by  the  sentence,  and  would  inflict  death 
or  line  and  imprisonment  as  the  crime  may  be  a  felony  or 
a  misdemeanor. 

§326.  Cumulative  statutes.  The  provisions  of  the 
federal  constitution  providing  that  "no  cruel  and  un- 
usual punishment  shall  be  inflicted  is  a  prohibition  upon 
the  powers  of  congress,  and  not  upon  the  legislatures  of 
the  several  states.^^  The  constitutions  of  the  several 
states  have  similar  provisions. 

Under  this  provision  of  the  constitution  the  legislature 
may  provide  as  a  punishment  the  forfeiture  of  the  right 
to  hold  office  and  the  right  to  vote.^''' 

But  a  legislative  enactment  which  appends  as  a  pun- 
ishment a  deprivation  of  the  right  to  follow  a  lawful 
business  or  trade  comes  within  the  prohibitions  of  the 
provision  of  the  constitution,  and  is  void.^^ 

There  are  statutes  where  the  punishment  is  increased 

26— McElvaine   v.   Brush,   142   U.  27 — Harper  v.  Com.  93  Ky.  290; 

S.  155,  35  L.  ed.  971;  Barron  v.  Bal-        Huber  v.  Eeiley,  53  Pa.  St.  112. 
tiniore,  7  Pet.  (U.  S.)   243;   Twitch-  28— Eobersou  v.  Miner,  68  Mich, 

c'll  V.  Com.,  7  Wall.  (U.  S.)  469;  U.       549,  37  N.  W.  21. 
S.   V.   Kruiseshank,   92    U.   S.   542; 
Baker  v.  People,  15  Am.  Dec.  322 
IN.  Y.),  3  Cowen  686. 
C.  L.— 18 


274  Criminal  Law 

for  subsequent  violation  of  the  same  offense,  and  where 
the  punishment  is  increased  for  the  conviction  of  a  subse- 
quent offense  of  a  different  grade  from  the  first  com- 
mitted. These  offenses  do  not  come  within  the  prohibi- 
tions of  the  constitution.  As  contradistinguished  from 
other  sentences  they  are  known  as  cumulative  statutes. 
So,  also,  a  conviction  upon  different  counts  of  the  same  in- 
dictment are  cumulative,  and  do  not  come  within  the  pro- 
visions. The  constitutional  provision  is  not  so  much 
directed  to  the  amount  of  the  punishment  as  it  is  con- 
cerned in  the  character  of  the  punishment  to  be  inflicted 
and  the  manner  of  inflicting  it.  These  statutes  increasing 
punishments  as  above  discussed  have  universally  been 
held  not  to  be  contrary  to  the  constitutional  provision 
against  cruel  and  unusual  punishments.^^ 

§  326a.  Different  punishments  for  different  sexes.  It  is 
not  repugnant  to  the  constitution  and  the  bill  of  rights, 
nor  a  denial  of  the  equal  protection  of  the  law  to  allow 
different  degrees  of  punishment  for  the  same  crime  com- 
mitted by  the  different  sexes.  It  has  been  held  in  a 
recent  case  ''that  the  legislature  may  make  a  distinction 
in  the  punishment  for  the  same  offense,  based  entirely 
upon  the  sex  of  the  offender. ' '  ^®  This  seems  to  move 
upon  the  theory  that  the  Legislature  in  prescribing  pun- 
ishment for  a  crime,  may  take  into  consideration  the  fact 
that  the  number  of  women  who  commit  crimes,  in  pro- 
portion, is  less  than  that  of  men.  Further  consideration 
may  be  given  also  to  the  physical  strength  and  endurance 
in  comparison  with  that  of  men.  Still  there  might  be 
other  reasons;  the  sentiments  and  feelings  of  a  people 
are  reflected  in  the  laws  made  to  govern  them,  and  this 

29— Kelley  v.  Pcole,  115  111.  583,  Kan.  48,  179  Pac.  347,  3  A.  L.  E. 

56  Am.  R.  184,  4  N.  E.  644;  Mooro  1611;    State   v.   Hcitmon,    181    Pac. 

V.  Missouri,  159  U.  S.  673,  49  L.  Ed.  630;   Baroiic  v.  Fox,  127  N.  Y.  Sup. 

301;   People  v.  Whitney,  105  Mich.  484;    Contra  Morgan  v.   State,   179 

622,  62  N.  W.  765.  Tnd.  300,  101  N.  E.  6. 

30 — In    re    Josic    Bunkcrton,    104 


Sentence  and  Punishment  275 

coupled  with  the  fact  that  the  male  population  assume 
for  themselves  all  prowess  and  chivalry.  The  same  prin-^ 
ciple  has  been  very  often  invoked  in  determining  the  con- 
stitutionality of  statutes  which  provide  different  degrees 
for  detention  of  juveniles.^^  It  has  been  uniformly  held 
that  such  statutes  were  not  unconstitutional.  So,  also,  it 
has  been  held  that  equal  protection  under  the  law,  as 
granted  by  the  14th  amendment  to  the  constitution  of 
the  United  States,  no  person  by  reason  of  his  race,  or 
color,  shall  be  subjected  for  the  same  offense  to  any 
greater  or  different  punishment  than  that  to  which  per- 
sons of  another  race  or  color  are  subjected.^'* 

The  theory  is  that  before  the  law  all  persons  are  equal, 
and  are  entitled  to  the  same  protection,  and  no  condition 
of  color  or  race,  is  to  be  deemed  a  sufficient  reason  to 
punish  for  the  infraction  of  the  law,  different  from  that 
of  others.  No  question  has  ever  been  urged  that  the 
equal  protection  of  the  laws  were  denied  where  the 
punishment  inflicted  upon  an  adult  person  is  different 
from  the  punishment  inflicted  upon  women  and  chil- 
dren, as  is  provided  in  many  of  the  statutes.  A  par- 
ticular instance  is  where  the  statute  provides  that  the 
condition  that  makes  an  assault  by  a  woman  or  a  child 
merely  a  simple  assault,  if  committed  by  a  man  upon  a 
woman  or  child,  becomes  an  aggravated  assault.  It  is  an 
attempt  at  last  on  the  part  of  the  Legislature  to  equalize 
the  punishment,  being  based  upon  the  difference  in  the 
nature  and  condition  of  the  sexes,  and  the  physical  en- 
durance of  the  individual. 

31— Ex   parte   Nichols,    110    Cal.  32— Plunkard  v.    State,   67  Md. 

654;  Taylor  v.  Means,  139  Ga.  578;  364,  10  Atl.  225,  309;   Ho  Ah  Kow 

People  ex  rel.  Bradley  v.  State,  23  v.  Nunan,  5  Sewy.  552,  Fed.   Cas. 

L.   R.   A.    139;   Com.    v.   Pear,  67  No.  6546;  Pase  v.  Ala.  106  U.  S. 

L.    R.    A.    935;   Ex  parte  Walker,  583,   27   L.   Ed.   207,   44  Am.   Rep. 

63  Tex.  Crim.  Rep.  416,  140  S.  W.  513;  Charles  v.  State,  11  Ark.  389; 

1093.  Pleasant  V.  State,  13  Ark.  360. 


PART  TWO 
Specific  Crimes 


CHAPTER  XIV 

ADULTERY 

§  327.  Was  uot  a  crime  at  common  §  331.  As    to    whether    in    the    com- 

law.  mission    of    the    crime    of 

§  328.  Definition.  incest,     bigamy,     adultery, 

§  329.  Common,   Roman,   and   canon  may   be    committed   in   the 

law.  same  act. 

§  330.  Under  statutes.  §  331a.  Indictment. 

§  327.  Adultery  was  not  a  crime  at  common  law. 
Adulteiy  under  the  ancient  common  law  was  cognizable  in 
the  ecclesiastical  courts  only.  The  canon  law  took  juris- 
diction of  the  offense  (if  we  at  this  time  may  term  it 
such)  for  the  purpose  of  administering  punishment  ac- 
cording to  the  rule  of  the  church.  As  an  offense  against 
the  temporal  laws  it  did  not  exist.  The  common  law  did 
not  seek  to  prohibit  it  as  a  crime,  and  the  temporal  courts 
took  jurisdiction  over  it  only  to  the  extent  of  allowing 
a  suit  for  damage  to  the  husband  against  the  seducer  of 
his  wife,^  Where  the  wife  was  guilty  of  adultery  he  was 
entitled  to  his  damages.  This  suit  was  cognizable  in  the 
temporal  courts  only.  The  spiritual  courts  assumed  juris- 
diction in  such  matters,  and  among  others  the  question 
of  divorce  and  censure  for  the  incontinence  of  any  mar- 
ried persons.    It  seems  to  have  been  the  law  that  the  wife 

1 — Therefore  at  the  common  law  for    adultery    did    not    lie    at    the 

as   in    England    at    this   day,   a   di  .suit  of  the  wife.  Lawson  'a  Cr.  Law 

vorce    on    the    ground    of    adultery  Simplified,  123;  Grouse  v.  State,  16 

can   bo   only    obtained   by   the   hus-  Ark.    5(56;    State    v.    Koth,    17    La. 

band;    and  the   common  law  action  336. 

276 


Adultery  277 

had  no  redress  against  the  husband  for  his  adulteries 
whatever,  except  perhaps  in  the  courts  of  the  church. 

During  many  centuries  of  the  early  growth  of  the  com- 
mon law,  this  offense  underwent  many  changes  following 
the  convolutions  of  the  spiritual  and  temporal  courts  in 
their  struggle  for  supremacy.  At  one  time  the  temporal 
powers  made  it  a  felony  and  punished  by  death.  This 
however  remained  in  force  for  only  a  comparatively  short 
time,  and  jurisdiction  was  again  obtained  by  the  spiritual 
courts. 

§328.  Definition.  Adultery  is  the  voluntary  carnal 
intercourse  of  married  persons  with  another  of  the  op- 
posite sex,  not  his  or  her  wife  or  husband.  The  peculiar 
notions  of  our  ancestors  were  that  adulter}^  was  an  of- 
fense, more  against  the  spiritual  existence, — an  offense 
against  the  soul, — an  offense  against  the  divine  law, — 
than  against  the  law^s  of  society.  As  an  offense  against 
the  state,  it  was  not  indictable  at  the  common  law.  So, 
in  the  United  States,  there  being  no  ecclesiastical  courts, 
the  common  law  in  this  respect  not  being  adopted,  it  fol- 
lows that  this  was  no  crime  until  made  so  by  statute.^ 
The  practice  of  open  and  notorious  adulteries  and  las- 
civious conduct,  was  indictable,  as  a  public  or  common 
nuisance.  Fornication,  which  consists  in  the  voluntary 
carnal  intercourse  of  persons  of  the  opposite  sex,  one  of 
which,  at  least  is  unmarried,  was  not  a  crime  at  the  com- 
mon law,  and  so  in  this  country  is  not  punishable  unless 
as  a  public  nuisance,  as  in  the  case  of  adulteries,^  except 
by  statute. 

2 — 4  Bla.  65.     ' '  Many  offenses  of  3— People    v.    Solmon,    148    Col. 

private    incontinence    fall    properly  303,  83  Pac.  42,  113  A.  S.  E.  268; 

and  exclusively   under   the  jurisdic-  Boshford    v.    Wills,    78    Kans.    96, 

tion  of  the  ecclesiastical  courts,  and  Pac.   663,   16   Ann.   Cas.   310,   18  L. 

are   appropriate   to   it.      But   where  R.  A.   (N.  S.)   580.    Bouv.  Law  Die. 

the    incontinence,     or     lewdness     is  Sub.  Adultery,  and  authority  cited; 

public,    or    accompanied    with    con-  Carotti  v.  State,  97  American  Dec, 

spiracy,    it   is    indictable."  471,  42  Miss.  334;   Com.  v.  Call,  32 


'2(1 


Criminal  Law 


§  329.  The  common,  Roman  and  canon  law.  There  ap- 
pears to  be  no  doubt  that  at  common  law  adultery  could 
only  be  committed  with  another  man's  wife.  As  we  have 
said,  it  was  not  a  crime  even  to  do  this,  but  such  action 
gave  a  right  of  damages  in  the  husband  for  the  reason 
that  it  would  thrust  upon  him  for  support  a  spurious  is- 
sue, who  would  be  entitled  to  share  in  his  estate.  This  law 
did  not  affect  a  married  man  that  had  intercourse  with  an 
unmarried  woman.  This  was  fornication  for  which  the 
father  was  entitled  to  damage  for  the  seduction  of  his 
daughter.*  Therefore  upon  the  authority  of  the  common 
law,  adultery  consists  in  any  man  either  married  or  un- 
mamed  having  carnal  intercourse  with  another  man's 
wife.  This  also  seems  to  have  been  the  adultery  of  the 
Eoman  law;  of  this  however  the  authorities  do  not  appear 
so  clear.  The  ecclesiastical  law  appears  to  have  extended 
to  the  violation  of  the  marriage  vow,  and  both  the  woman 
and  the  man  were  guilty.  We  believe  the  law  of  the 
United  States  is  that  either  the  wife  or  the  husband  hav- 
ing illicit  intercourse  with  another  of  the  opposite  sex  not 
being  his  or  her  husband  or  wife  is  guilty  of  the  offense, 
whether  such  person  is  married  or  unmarried.  That  for 
an  unmarried  man  to  have  illicit  intercourse  with  another 
man's  wife  both  are  guilty.  That  for  an  unmarried 
woman  to  have  illicit  intercourse  with  a  married  man 
is  adulteiy  in  the  man  only,  if  as  to  either.  We  mean 
of  course  unless  the  matter  is  made  so  by  statute.^ 

Amer.  Dec.   284,  21  Pick.  509,  and  Carotti   v.    State,   42    Miss.    224,   97 

note.  Am.  Dec.  465.     New  Hampshire. — 

State  V.  Marvin,  35  N.  H.  22.    New 

ADULTERY    NO    CRIME    AT    COMMON  Jersey.— State  V.  Lash,  16  N.  J.  L. 

^^'^  380,    32    Am.    Dec.    397.      Pcnnsyl- 

" Adultery    as    a    crijiio    was    un-  vania. — Com.    v.    Kilwcll,    1    Pittsb. 

known    to    the    common    law."      1  (Pa.)      255.        Vermont.— State     v. 

Cyc,  page  952.  Coper,   16  Vt.   551.     Virginia.— An- 

NoTE    2.       Arkansas. — Grouse    v.  dcrson  v.  Com.,  5  Rand.   (Va.)   627, 

State,    16    Ark.    566.      Iowa.— State  16    Am.   Dec.   775. 

V.  Roth,  17  Iowa  336.     (Mass.)  190,  4— State  v.  Lash,  1  Harrison  380, 

35  Am.  Dec.  398;   Com.  v.   Putman,  32  Am.  Dec.  397. 

1  Pick.  (Ma»s.)  136.    Mississippi.—  5— Com.  v.  Call,  21  Pic.  509,  32 


Adultery  279 

§  330.  The  offense  under  the  statutes.     The  law  of  the 

spiritual  courts  seems  to  have  regarded  every  act  of 
illicit  intercourse  between  the  prohibited  pailies  a  sep- 
arate offense,  of  this  however  the  authorities  do  not  ap- 
pear quite  plain;  certain  it  is  that  one  act  of  the  parties 
would  constitute  the  offense  and  entitle  the  parties  to  a 
divorce.  The  court  of  last  resort  in  the  state  of  Alabama 
in  construhig  the  statutory  law  of  that  state  says:  "The 
term  'adultery,'  as  used  in  our  code,  should  be  construed 
with  reference  to  subject  matter  with  which  it  stands 
connected.  Where  used  with  reference  to  divorce,  it  is 
to  be  taken  in  the  canonical  sense  of  that  term,  and  em- 
braces the  infidelity  of  the  husband  to  his  wife;  but 
where  considered  in  reference  to  the  criminal  law  it  im- 
ports such  sexual  intercourse  as  violates  another  man's 
bed — as  may  entail  a  spurious  issue  upon  the  defrauded 
husband."  ®  Many  of  the  statutes  in  charging  what  shall 
constitute  the  crime  use  the  term  or  phrase  ''live  to- 
gether" or  "cohabit  together."  These  statutes  have  been 
construed  to  mean  that  single  acts  of  incontinence  be- 
tween the  parties  prohibited  by  the  statute  will  not  con- 
stitute the  crime — the  intercourse  must  be  habitual — that 
is  frequent.''^  It  seems  that  where  the  statute  provides 
that  whoever  shall  commit  adultery,  etc.;  the  term  "adul- 
tery" is  to  be  taken  in  the  canonical  sense,  and  that  the 
offense  is  to  be  construed  with  reference  to  the  meaning 
of  the  common  law,  speaking  through  the  canonical 
courts.^  Under  the  Texas  statute  the  crime  may  be  com- 
mitted in  two  ways:  (1)  by  the  parties  living  together  and 

Am.    Dec.    284.      See    the    note    to  23;    Bashford    v.    Wells.    78    Kans. 

both  these  cases  and  the  authorities  295,  96  Pac.  663,  16  Ann.  Cas.  310, 

referred    to.      Bashford    v.    Wells  18  L.  E.  A.    (N.  S.)    580.     Carotti 

(Kas.),  18  L.  E.  A.    (N.   S.)    581.  v.  State,  42  Miss.  334,  97  Am.  Dec. 

See    note    to    this    case.     White    v.  465. 

State,   74   Ala.   31,  Lymon  v.   Peo-  7 — Jackson    v.    State,    116    Ind. 

pie,    198    111.    514,    64    N.    E.    974;  464,  19  N.  E.  530;   Miller  v.  State, 

State   V.   Kosty,    121   Iowa   507,   96  24  Tex.  App.   346;    Smith  v.   State, 

N.  W.   1115;    State  v.  Fellows,  50  86  Ala.  57,  11  Am.  St.  E«p.  1. 
Wis.   65,  6  N.  W.   239.  8— Hood   v.    State,    56    Ind.    263, 

6— Smitherman  v.  State,  27  Ala.  26  Anier.   Eep.    21. 


280  Ckimixal  Law 

liavmg-  canial  intercourse  with  eacli  other;  (2)  bv  the 
parties  having  habitual  intercourse  with  each  other  with- 
out living-  together.  To  convict  under  the  first,  it  must 
be  proved  that  the  parties  lived,  dwelt  and  resided  to- 
gether, and  a  single  act  is  sufficient  if  they  so  live.  Under 
the  second  it  is  necessary  to  show  that  they  had  habitual 
intercourse  with  each  other — but  not  that  they  lived  to- 
gether.^ The  court  in  an  x\labama  case:  "And  the  par- 
ties need  not  occupy  the  same  dwelling  if  there  was  a 
mutual  expectation  and  understanding  that  the  relation 
was  to  be  kept  up, — . ' '  As  the  antithesis  of  this,  however, 
a  single  act,  or  occasional  acts,  not  indicating  a  consentive 
or  prearranged  continuation  of  illicit  conduct,  would  not 
be  living  together  within  the  meaning  of  the  statute.^" 

§  331.  As  to  whether  in  the  commission  of  the  crimes 
of  rape  incest  and  bigamy,  adultery  may  be  committed 
by  the  same  act.  The  law  is  now  well  settled  that  in- 
tent, or  ratlier  criminal  intent,  is  only  necessary  to  exist 
on  the  part  of  one  of  the  parties  to  an  act  of  intercourse 
in  order  to  convict.  In  order  to  convict  both  parties  to  the 
transaction  it  is  necessary  that  the  criminal  intent  exist 
as  to  each.  If  one  of  the  parties  othenvise  possessed  of 
the  essentials  required  to  commit  the  crime,  that  is  a  mar- 
ried person,  and  knowing  the  relationship  to  be  within 
the  prohibited  degrees  of  consanguinity  or  affinity,  engage 
in  an  act  of  intercourse  with  another,  this  will  constitute 
the  incest  or  the  adultery  in  him.^^  Or  if  they  both  were 
niiiiKinicd  iliis  would  be  either  fornication  or  incest,  and 
upon  i)riiici])l('  it  sconis  tliat  it  might  be  fornication  in 

9— Bird   v.    State,    27    Tex.    App.  11— State    v.    Ellis,    74    Mo.    :]»'), 

6:5.5,  11  Am.  St.  Rep.  214;  see  Ca-  41  Am.  Rop.  321;  State  v.  Saiulers, 
rotti  V.  State,  42  Miss.  334,  97  Am.  :\0  Iowa  582;  State  v.  Donavan,  61 
Dec.  471.  Iowa   278,    16   N.   W.    1.10-206,   131 

]0— Bodifonl  v.  Stale.  80  Ala.  67,        Mass.  577,  41   Am.  Rop.  248. 
11  Am.  St.  Rep.  20;  rollins  v.  State, 
14    Ala.    608;    Qiiarti-mas    v.    State, 
■J 8   Ala.    L'OO. 


Adultery  281 

one  whore  he  was  ignorant  of  the  relationship,  and  incest 
in  the  other  who  might  have  the  knowledge  of  the  rela- 
tionship. Or  if  one  was  married  and  the  other  mimarried 
one  would  be  guilty  of  fornication  and  the  other  adultery. 
Whore  the  female  is  insensible  from  any  cause,  idiot  or 
lunatic,  the  man  would  bo  guilty  of  the  crime  of  rape 
or  adultery  at  the  option  of  the  prosecution.  In  the 
crime  of  adultery,  it  is  not  necessary  that  there  be  any 
intent  except  the  ct)nsont  with  full  knowledge  of  the  act 
and  the  nature  of  it.  Where  one  of  the  parties  by  reason 
of  the  want  of  knowledge  of  facts  existing  in  the  knowl- 
edge of  the  other  makes  the  crime  in  him  adultery,  will 
not  bo  adultery  in  the  other,  because  the  consent  was 
given  under  a  misapprehension  of  the  fact.  As  where  a 
woman  believing  that  the  man  she  married  is  a  single 
man,  when  in  fact  he  has  a  valid  existing  marriage  w^ith 
another,  she  ignorant  of  these  facts  is  not  guilty  though 
the  man  is.^^ 

§  331-a. 

ADULTERY 

Indictment  for  Adultery.  That  "on  the  first  day  of  August,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-three,  at  the  city 
of  Racine,  aforesaid, ' '  the  defendant  ' '  did  commit  the  crime  of  adultery 
with  one  Caroline  White,  the  wife  of  one  Orrin  White,  by  then  and  there 
having  carnal  knowledge  of  the  body  of  her,  the  said  Caroline  White,  he, 
the  said  James  Ketchingman,  then  and  there  being  a  married  man,  and 
liaving  a  lawful  wife  then  alive,  and  she,  the  said  Caroline  White,  then  and 

12 — Alonzo  V.  State,  15  Tex.  App.  relationship  between  herself  and  her 

378,   49   Am.   Rep.    207,   it   is   said,  father  without  any  fault  of  hers;  of 

"While    the    criminal    intent    may  course,  in  either  of  these  cases  she 

exist  in  the  mind  of  one  of  the  par-  would   be  acquitted.     Would   it  not 

ties  to  physical  act,  there  may  not  be   monstrous   to   say   that,   because 

be  such   intent  in  the  mind  of  the  of  her  innocence,  the  beastly  father 

other    party     *     *     *_      Suppose    a  must    go    unpunished    for    his    un- 

father  and  his  daughter  are  indicted  natural  crime?     Such  cannot  bo  the 

for  incestuous  intercourse  with  each  law,    and    such,    we    believe,    is   not 

other.      Upon    the    daughter    it    is  the  law  as   declared  by  the  weight 

proved    that    at    the    time    of    the  of   authority."      State   v.    Cutshall, 

physical   act    she    was   an    idiot,    or  109    N.    C.    764,    26    Am.    St.    Rep. 

tliat  she  was  wholly  ignorant  of  the  599,   14  S.  E.   107. 


282  Criminal  Law 

there  being  a  married  woman,  and  the  lawful  wife  of  said  Orrin  White, 
contrary  to  the  form  of  the  statute,"  etc.  (Ketchingman  v.  State,  6 
Wis.  426.) 

Indictment  fob  Adultery,  Continuous  Act.  "R.  Griffin  Golden 
and  Jemima  Scott  did,  in  said  county  and  state  aforesaid,  on  or  about  the 
loth  of  February,  1868,  commit  adultery  by  living  together,  and  cohabiting, 
or  having  carnal  knowledge  of  each  other,  at  divers  times,  at  and  before 
the  time  aforesaid,  in  said  state  and  county,  he,  the  said  E.  GrifSn  Golden, 
at  the  time  of  committing  the  adultery  with  the  said  Jemima  Scott,  being 

a  married  man,  and  his  wife,  ,  then  living."     (Golden  v.  State, 

32  Tex.  737.) 


CHAPTER  XV 

ATFEAY 

§  332.  Definition.  §  336.  Compared  to  riot. 

S  333.  Gravemen   of  the   crime.  §  337.  Fighting  in  self  defense. 

§  334.  What  constitutes. 
§  335.  May   be   committed   short   of 
blows,  when. 

§  332.  Definition.  An  affray  is  the  voluntary  fighting 
together  of  two  or  more  persons  to  the  terror  of  others.^ 

§333.  Gravamen  of  offense.  The  gravamen  of  this 
offense  is  the  fighting  together  in  a  public  place.  An  as- 
sault or  an  assault  and  battery,  committed  in  any  other 
than  a  public  place,  is  not  an  affray.  The  statutes  define 
what  constitutes  a  public  place.  An  enclosed  lot  ninety 
feet  from  a  street  and  visible  therefrom  is  a  public  place 
within  the  meaning  of  the  common  law  definition  of  an 
affray,  according  to  a  decision  of  the  court  of  Alabama.^ 
But  it  has  been  held  in  the  state  of  Indiana,  that  a  ''high- 
way," is  not  necessarily  a  "public  place"  within  the 
meaning  of  the  statute  defining  an  affray.^  The  par- 
ticulars which  would  constitute  a  ' '  public  place ' '  may  in 
some  instances  be  gathered  from  the  circumstances  and 
conditions  surrounding  the  case.  So,  in  another  Alabama 
case,  it  was  held,  that  a  field  surrounded  by  a  forest, 
and  situated  one  mile  from  any  highway,  or  other  public 

1— Dunkin  v.  Com.,  36  Ky.  295;  2— Canville  v.  State,  35  Ala.  392. 

McClellon   v.    State,    53    Ala.    640;  3— State  v.  Weekly,  29  Ind.  20&. 

Simmons  V.  Com.,  29  Ky.  614;  State  Fighting   in   a   public    road   in    the 

V.   Warren,   57   Mo.   App.   502;    Su-  State   of   Texas  is   an   affray.     See 

preme    Council    Order    v.    Garrigus,  Pollock  v.  State,  32  Tex.  App.  29, 

104  Ind.  133,  3  N.  E.  818,  54  Am.  22  S.  W.  19. 
Rep.  298,  also  13  L.  R.  A.  163. 

283 


284  Criminal  Law 


• 


place,  does  not  lose  its  private  character,  by  the  casual 
presence  of  three  persons  so  as  to  make  two  of  them,  who 
fight  together  willingly,  guilty  of  an  affray.*  The  fighting 
must  be  between  two  or  more,  in  some  public  place,^  but  a 
fight  beginning  in  a  private  place,  and  carried  by  pursuit 
into  a  public  place,  constitutes  the  offense.® 

§  334.  What  constitutes.  Mere  words  do  not  consti- 
tute an  affray,  but  where  abusive  language  is  used  to- 
ward another,  is  accompanied  by  acts,  which  demonstrate 
a  willingness  to  fight,  such  as  the  exhibiting  a  weapon, 
coupled  with  an  attempt  to  use  it  will  constitute  the 
offense.'  One,  who  by  abusive  and  insulting  language 
induces  another  to  attack  him,  and  offer  no  resistance  to 
his  attacks,  is  not  guilty  of  an  affray,*  but  if  the  language 
is  used  for  the  purpose  of  bringing  on  the  fight,  and  there 
is  a  willingness  to  fight,  although  he  may  be  unable  to 
fight,  is  nevertheless  guilty  of  an  affray.^  If  one  person 
by  words  or  signs,  instigates  another  to  strike  a  third 
person,  he  is  clearly  guilty  of  an  assault  and  battery.  So, 
if  one,  in  a  public  place,  use  language  against  another 
which  is  calculated  and  intended  to  bring  on  a  fight  and 
thereby  induces  such  person  to  strike  him,  he  is  guilty  of 
an  affray,  although  he  may  not  strike  or  attempt  to  strike 
in  defense.^® 

§  335.  May  be  committed  short  of  blows,  when.  This 
offense  may  be  committed,  short  of  blows  or  actual  vio- 
lence, if  the  acts  of  the  participants,  are  of  such  a  nature, 
as  reasonably  calculate  to  incite  terror  in  those  who 
witness  them  the  same  being  in  a  public  place,  as  where 

4— T;iylor  v.  State,  22  Ala.  15.  8— O'Neal  v.  State,  16  Ala.  65. 

5— Simpson    v.    State,    13    S.    W.  9— State  v.  Perry,  50  N.  C.  9,  69 

(Tenn.)    356.  Am.  Dec.  768;  State  v.  Faining,  94 

6— Wilson     V.     State,     50     Tenn.  N.  C.  940,  53  Am.  Rop.  653. 

278;   State  v.  Billings,  72  Mo.  662.  10— Hawkins    v.    State,    58    Am. 

7— Hawkins  v.  State,  58  Am,  Dec.  Dec.  517,  13  Ga.  322;  State  v.  Davis, 

517,  13  Ga.  322.  80  N.  O.  351,  30  Am.  Rep.  86. 


Affray  285 

the  parties  appear  armed  with  deadly  weapons."  Actual 
fear  or  terror  need  not  be  incited,  in  those  who  witness 
the  affray.  The  terror  is  implied  by  the  acts  which  make 
the  affray.^^  Riding  unarmed  on  horse  back  through  the 
court  house,  after  the  people  left  it,  is  not  necessarily  an 
affray.^^  Where  one  arms  himself  with  a  deadly  weapon, 
or  unusual  weapons  and  goes  forth  openly  in  a  public 
place,  threatening  and  terrifying  the  people,  is  guilty  of 
an  affray.'^*  In  this  last  instance,  another  offense,  which 
has  always  been  considered  indictable  at  the  common  law, 
has  been  confounded  with  that  of  an  affray.  Thus  going 
armed  in  an  unusual  manner,  into  a  public  place,  alarm- 
ing and  terrorizing  the  people  was  at  common  law  an 
indictable  offense,  distinct  from  that  of  affray,  being 
regarded  as  a  criminal  nuisance,  which  could  be  com- 
mitted by  a  single  individual. ^^ 

§  336.  As  compared  with  rout  and  riot.  An  affray  is 
different  in  technical  definition  from  that  of  riot,  in  this, 
that  a  riot  cannot  be  committed  by  a  less  number  of 

11 — State   V.    Huntley,   25   N.    C.  crime  against  the   public  peace  by 

(Ircd.)  418,  40  Am.  Dec.  416.  terrifying   the   good   people    of   the 

12 — State   V.    Summer,    5    Straub.  land.     Hawkins  treating  of  the  of- 

53.  fenses     against    the     public    peace 

13— -State  V.  Lanier,  71  N.  C.  288.  under  the  head  of  "affrays"  uses 

14 — State  V.  Huntley,  40  Am.  Dec.  the  following:  "But  granting  that 

416.     This  case  holds  among   other  no  bare  words  in  judgment  of  law, 

things,   that   riding  or  going  about  carry  in  them  so  much  as  to  amount 

armed    with    dangerous    or    unusual  to   an   affray,   yet   it   seems   certain 

weapons  to  the  terror  of  the  people  that  in  some  cases  there  may  be  an 

is  an  offense  at  common  law,  and  affray,    where    there    is    no    actual 

that  the  term  "affray"  is  derived  violence,  as  where  a  man  arms  him- 

f rom  the  French  word  ' '  eff rayer ' ' —  self    with    dangerous    and    unusual 

which  means   to   affright,  and   that  weapons  in  such  a  manner,  as  will 

anciently  it  meant  more.     As  where  naturally    cause    a    terror    to    the 

persons  appeared  with  arms  or  weap-  people,  which  has  been  said  to  have 

ons  not  usually  worn,  to  the  terror  always  been  an  offense  at  common 

of  others.  law  and  strictly  prohibited  by  many 

15 — 4  Bla.  Com.  149.    The  offense  statutes."      Hawkins    P.    C.    0.    28 

of    riding    or    going    around    with  sec.  1,  taken  from  Huntley  v.  State, 

dangerous  or  unusual  weapons  is  a  40  Am.  Dec.  416. 


286  Ceiminal  Law 

persons  than  three,  while  an  affray  may  be  committed  by 
two,  in  some  instances,  by  one  as  explained  in  the  pre- 
ceding section.  It  is  also  distingnished  from  an  assault, 
in  this,  that  an  assault  may  be  committed  in  either  a- 
private  or  public  place.  When  both  parties  fight  or  show 
a  willingness  to  fight  the  offense  is  complete  and  both  are 
guilty.  If  a  party  is  attacked  without  fault  of  his  own, 
and  is  compelled  to  fight  to  defend  himself,  he  is  not 
guilty  of  the  affray,  while  his  adversary  is.^^  In  order 
for  the  accused  to  invoke  the  right  of  self  defense,  the 
proof  must  show  that  there  was  no  willingness  or  consent, 
mutually  to  fight  except  that  which  arose  from  the  neces- 
sity of  the  attack. 

§  337.  Fighting  in  self  defense.  The  fighting  together 
of  two  or  more  persons  in  a  public  place,  to  the  terror 
of  his  majesty's  subjects  was  an  offense  at  the  common 
law.  The  gist  of  this  offense,  is  the  fighting  together 
in  a  public  place.  The  fighting  of  two  or  more  in  a  private 
place  is  not  an  offense — at  least  is  not  an  affray."  The 
fight  must  have  been  voluntarily  engaged  in.  If  one  of 
the  participants  in  his  own  natural  self  defense  is  forced 
to  fight,  is  not  guilty,  and  his  acquittal  acquits  the  other." 
Unlawful  assemblies,  riots  and  routs,  are  a  kind  of  an 
affray,  but  differing  in  particulars.  Where  the  fighting 
occurs  in  a  church  yard,  or  wliere  the  officers  of  the  law 
were  interfered  with  in  the  discharge  of  their  duties, 
such  actions  were  considered  an  aggravation  of  the  sim- 
ple affray,  and  was  punished  more  severely. 

16 — People   V.   Moore,   3   Wheeler  18 — Hooskins  v.  State,  23  Ga.  322, 

Cr.    Cas.    82;    Pollock   v.    State,"  32  58  Amor.  Dec.  517.     See  also  Cruce 

Tex.  App.  29.  v.  State,  59  Ga.  83. 

17—4  Blackstone  145;  State  v. 
Brazill,  Rice  251;  State  v.  Snow,  18 
Me.  .'',46;  Taylor  v.  State,  22  Ala.  15, 


CHAPTER  XVI 

ARSON 

§  338.  Definition.  §  344.  Total    destruction    not    neces- 

§  339.  What  includes.  sary. 

§  340.  Barn  in  the  fields.  §  345.  Of   the   attempt. 

§  341.  Extensions   of   statutes.  §  345a.  Attempt   at    arson,   substan- 

§  342.  Owner   of   house.  tive  crime. 

§  343.  Wife's  house.  §  345b.  Intent. 

§338.  Definition.  Arson  at  the  common  is  defined  as 
the  malicious  burning  of  the  dwelling  house  of  an- 
other.^ This  at  the  common  law  was  an  offense  that  was 
created  for  the  purpose  of  adding  as  great  a  degree  of 
safety  and  security  to  the  habitation  as  possible,  against 
the  malicious  acts  of  evil  disposed  persons  who  might 
take  that  mode  of  wreaking  revenge  upon  the  occupants. 
The  crime  is  divided  into  four  principal  elements,  the  con- 
currence of  which,  is  necessaiy  to  constitute  it.  First: 
The  house  burned  must  be  the  dwelling  house  or  the 
houses  immediately  connected  with  it.  Second:  The 
property  must  be  the  house  belonging  to  some  other  per- 
son, other  than  the  house  of  the  offender.  Third:  There 
must  be  a  malicious  intent  to  injure  the  owner  or  occu- 
pant. The  house  must  be  occupied  as  the  abode  of  some 
person,  of  which  we  shall  discuss  in  the  order  named. 

OF   THE   DWELLING  HOUSE 

§  339.  What  includes.  The  house  and  other  houses  used 
in  connection  with  the  main  house,  where  the  family  lived, 

1— state    V.    Snow,    79    Mo.    306,  36    So   19,    101    A.    S.    R.    21.      See 

100  Pac.  78,  131  A.  S.  R.  298,  21  note  to  this  last.     State  v.  Mortin, 

L.  R.  A.  (N.  S.)  27.    Note  to  L.  R.  87  Neb.   529,  127  N.  W.  896,  Ann. 

A.    State    V.    Young,    139    Ala.    136,  Cas.  1912  A,  1125,  note  to  last. 

287 


288  Ckiminal  TjAw 

being  such  structures,  barns  and  improvements  of  a  per- 
manent nature  situated  in  a  common  inclosure  was  at 
common  law  the  dwelling.'^  Bams  in  a  field,  out  houses 
used  in  the  enjoyment  and  in  connection  with  the  dwell- 
ing, but  not  appurtenant  and  not  connected  thereto,  unless 
such  barns  and  the  like  in  which  corn  and  hay  had  been 
stored,  were  not  subject  to  the  crime.^  The  ordinary  and 
usual  construction  placed  by  the  courts  upon  the  term 
** dwelling  house,"  when  constnied  in  connection  with 
arson,  means  every  building  and  improvement,  appurte- 
nant and  accessory  to  the  main  building  used  and  occupied 
as  a  place  of  abode.  Thus  a  building  tl:(^'ty  feet  away 
from  the  main  building,  occupied  as  a  sleeping  apartment 
by  servants,  is  a  dwelling  house  within  the  meaning  of 
this  term.*  So,  a  barn  eighty  feet  from  the  house  situated 
upon  a  lane  leading  from  the  house,  is  considered  to  be 
within  the  common  enclosure  or  curtilage.^  But  a  barn 
two  hundred  and  fifty  feet  from  the  dwelling  house  is 
not.^ 

§  340.  Bams  in  field.  To  that  rule  of  the  common  law, 
tliat  barns  and  the  like  not  connected  with  the  dwelling 
of  the  family,  situated  in  the  field,  was  not  subject  to 
arson  has  an  exception  in  this,  that,  if  the  barn  was  stored 
with  hay  or  grain,  the  malicious  burning  would  be  arson. '^ 
The  reason  for  this  exception  does  not  anywhere  appear 

2 — State  V.   Jim,   8   Jones  L.    (N.  pcrmaiiont   dorniitory    for   his   scrv 

C.)   459;   State  v.  Stewart,  6  Conn,  ants." 

47;   State  v.  Fish,  27  N.  J.  L.  323.  5— People  v.  Taylor,  2  Mii-h.  250. 

.3 — 4  Blackstone  Com.  245.  This  case  held  that  it  was  not  neces- 

4 — Pond   V.   People,   8   Mich.    loO.  sary  that   a   fence   be  built  around 

"A  question  arose,  whether  the  net  the  building  in  order  to  include  them 

house   was   a    dwelling   house,   or   a  in  the  curtilage  if  within  a  space  no 

part  of  dwelling  house  of  Pond.    Wc  larger    than    that    usually    occupied 

think  it  was.     It  was  near  the  other  for    the    purposes    of    the    dwelling 

buildings,   and   was   used,   not   only  and   customary   out  houses, 

for   pr^'Hcrving   the   iK-ts   which   were  G — Curkinstate  v.  People,  36  Mich, 

used   in   the   ordinary   occupation    of  309. 

Pond,   as  a   fisherman,   but   also   as  7 — Sampson  v.  Com.,  5  Watts  & 


Arson  289 

fully  explained.  So,  also,  a  barn  so  situated  as  not  to  be 
connected  with  the  dwelling  house,  but  close  enough  to 
communicate  fire  to  the  dwelling  house,  the  setting  fire  to 
the  barn  is  arson.^  Empty  barns  in  the  fields  not  so  sit- 
uated as  to  communicate  fire  to  the  main  building  occu- 
pied as  the  dwelling,  in  case  the  same  is  set  on  fire,  is  not 
arson.®  If  the  fire  is  begun  in  other  buildings  so  near  to 
the  dwelling  as  to  communicate  the  flames  to  it,  or  to 
endanger  it,  is  arson. 

§341.  Extensions  of  statutes.  While  at  common  law 
as  we  have  seen  in  the  preceding  sections  arson  was  only 
committed  upon  the  dwelling  house  and  such  houses  as 
were  used  by  the  family  in  the  common  enclosure  or 
houses  and  buildings,  there  being  such  a  lack  of  uniform- 
ity we  can  little  more  than  refer  to  the  statutes  for  de- 
scription. In  a  general  sense  it  may  be  said  that  all 
extend  to  store  buildings  used  in  commerce,  or  others  in 
which  valuable  property  is  stored,  such  as  warehouses, 
mills,  houses  of  manufactories  and  the  like.  So,  also, 
churches,  school  houses  and  public  buildings  and  offices 
for  public  purposes  and  offices  used  for  business  by  pri- 
vate persons.  Under  these  statutes  it  is  arson  to  set  fire  to 
and  burn  any  of  the  buildings  thus  included  in  the 
offense. 

OWNERSHIP  OF  HOUSE 

§  342.  Owner  of  house.     The  house  must  be  the  prop- 
erty of  one  other  than  the  accused."    At  the  common  law 

S.    (Pa.)    385;    State  v.  Porter,  90  28  Atl.  522,  4  Bla.  221;   People  v. 

N-  C.  719.  De  Winton,   113   Cal.  403,  45  Pac. 

8— Gage  v.   Sheldon,   3   Eieh    (S.  708,  54  A.  S.  E.  357,  33  L.  R.  A. 

C-)   242.  374;    State  v.   Toole,   29   Conn.,   76 

9— Gibson  v.  State,  54  Md.  447.  Am.      Dec.      602;      Kopcyznski     v. 

See  statutes  of  states.  State,  137  Wis.  358,  118  N.  W.  863, 

11— Roberts   v,    7    Cold.    (Tenn.)  16  Ann.  Cas.  865. 
359;   State  v.  Kenna,  63  Conn.  329, 
C.  L.— 19 


290  Criminal  Law 

it  was  no  arson  for  one  to  burn  liis  own  house,  or  to  pro- 
cure another  to  do  it,  and  especially  was  this  true  where 
he  procured  his  sen^ant  to  do  so,  the  reasoning  being,  that 
if  no  crime  in  the  owner  to  burn  his  house  it  could  not 
be  in  the  agent. ^^  It  appears  that  to  burn  the  house  by 
the  owner,  or  by  another  through  his  procurement,  with 
the  intent  to  defraud  an  insurance  comi^any,  or  to  set  fire 
to  his  house  for  the  purpose  of  burning  the  house  of  an- 
other to  which  the  flame  might  be  communicated,  was  at 
the  common  law  no  arson,  but  a  high  misdemeanor,^'  By 
the  statutes  of  most  of  the  several  states  the  burning  of 
one's  house  for  the  purpose  of  securing  the  insurance 
thereon  is  arson,  and  this  whether  done  by  himself  or  by 
his  servant  through  his  procurement.  The  gist  of  the 
offense  consists  in  the  danger  to  the  safety  of  the  occu- 
pants of  the  house,  rather  than  the  danger  of  damage  and 
destruction  of  the  property.^*  Hence  at  the  common  law 
the  burning  the  house  unoccupied,  was  not  arson. ^^  An 
incomplete  house  intended  for  occupancy  according  to  the 
weight  of  authority  is  not  subject  to  the  crime." 

12 — State   V.   Sarvis,   55   Am.   St.  .iiid  lior  family  are  living  in  a  dwcU- 

Rop.   806,   32   L.   R.   A.    647;    State  ing  house,  and  have  their  household 

V.  Ilaynes,  66  Me.  307,  22  Am.  Rep.  effects,  or  other  valuable  articles  in 

569.  such   dwelling   house,   and   are   tem- 

13 — 4  Bla.  221;   State  v.  Hannet,  porarily   absent  at  church   or   on  a 

54  Vt.  83;  Roberts  v.  State,  7  Cold.  visit  to  a  neighbor's,  and  the  dwell- 
359;  State  v.  Sarvis,  55  Am.  St.  ing  house  is  burned  during  such  tem- 
Rep.  806,  32  L.  R.  A.  647;  Garret  porary  absence,  it  is  the  burning 
V.  State,  109  Ind.  527.  of    an    occupied    house,    under    the 

14 — Snyder    v.    People,    26    Mich.  meaning  of  the  statute,  although  no 

106    (Sec.    342,   Note   4);    State   v.  one  was  in  the  dwelling  at  the  time 

Sarvis,  45   S.   C.   668,   24  S.   E.  53,  it   was  burned.     Tiie  object   of  the 

55  A.  S.  R.  806,  32  L.  R.  A.  647.  statute  is  to  prot<n-t  the  occupants 
Note  to  la.st.  Kopcyznski  v.  State,  of  the  dwelling  house  and  their  prop- 
137  Wis.  358,  118  N  W.  863,  16  erty  from  the  hand  of  the  incen- 
Ann.  865.  Note  to  last.  State  v.  diary.  .Johnson  v.  State,  48  Ga. 
Shaw,    79    Kan.    396,    100    Pac.    78,  116. 

131  A.  R.  R.  298,  21  L.  R.  A    (N.  16— The   court   says:    "In   shape 

8.)  27.  and  purpose,  the  house  was  a  dwell- 

15 — Where  n  man,  or  a  man  and  a  ing  house,  but  not  in  fact;   because 

family,   or   a   woman,   or  a   woman  it  had  never  been  dwelt  in;   it  had 


Arson  291 

§343.  Wife's  house.  A  house  owned  by  the  wife  and 
occupied  jointly  by  the  husband  and  wife,  is  tlie  hus- 
band's in  contemplation  of  law,  as  by  the  common  law, 
and  the  burning  by  the  husband  is  not  arson  for  the 
reason  by  common  law  fiction  the  husband  and  wife 
were  as  one  person  and  for  the  same  reason  the 
wife  would  not  be  guilty  of  arson  for  burning  the  hus- 
band's house. ^''^  However  under  statutes  where  the  wife 
has  control  of  her  separate  property  the  husband  would 
have  no  right  to  burn  her  house  and  would  be  guilty  of 
arson,  although  jointly  occupied  by  them  at  the  time.^' 
So,  if  a  part  owner  burns  a  house  for  the  purpose  of  in- 
juring the  owners  jointly  interested  with  him.^^  If  the 
owner  burn  his  house  while  occupied  by  his  tenant,  he  is 
guilty  of  the  crime. ^"^  And  so  also  where  one  has  only  a 
dower,  interest  in  the  premises  the  burning  will  be  arson.^^ 

§  344.  Total  destruction  not  necessary.  It  is  not  neces- 
sary that  the  house  be  totally  destroyed,  it  is  enough 
that  it  be  partially  so.  Thus  the  mere  charring  of  wood 
or  timbers  of  the  building,  without  reducing  the  same  to 
coals,  does  not  appear  to  be  sufficient  but  if  reduced  to 
coals  without  blazing  it  is  otherwise.^^  The  mere  scorch- 
never  been  used,  and  was  not  eon-  66  Me.  307,  22  Am.  Eep.  569; 
templated  then  ready  for  the  habi-  State  v.  Show,  70  Kan.  306,  100 
tation  of  man;  arson  understood  at  Pac.  78,  131  A.  S.  E.  208,  21  L. 
common  law,  was  a  most  aggravated  E.  A.  (N.  S.)  27,  note  81  Am.  Dec. 
felony,  and  of  greater  enormity  70,  16  Ann.  Cas.  807.  See  101  A.  S. 
than   any    other    unlawful    burning,       E.   27. 

because   it  manifested    in   the   per-  18 — Garrett    v.    State,    109    Ind. 

petrator,  a  greater  recklessness  and       527. 

contempt    of    human    life    than   the  19 — Milligan    v.    State,    25    Tex. 

burning  of  any  other  building  and       App.  199,   7  S.  W.  664,  8  A.  S.  E. 
in  which  no  human  being  was  pre-       435. 

sumed  to  be."     State  v.   MeGown,  20 — Tuller  v.  State,  8  Tex.  App. 

20  Conn.  245,  52  Am.  Dec.  336.  501;  Eox  v.  Harris,  2  East  1023. 

17 — Snyder    v.    People,    26    Mich.  21— Eex  v.  Harris,  2  East  1023. 

1.06,  12  Am.  Eep.  305;  Eex  v.  March,  22— State  v.   Hall,   93   X.   C.   57; 

R.  &  M.  C.  C.  182;  State  v.  Haynes,       Hargarty    v.    People,    46    Cal.    354; 


292  Criminal  Law 

ing  and  discoloration  of  the  timbers  or  the  material  is  not 
a  burning.  Nor  is  the  setting  afire  of  goods  in  the  house, 
which  does  not  communicate  to  the  building,  arson,  at  the 
common  law.^^  If  it  is  actually  fired  and  the  fire  for 
any  reason  does  not  proceed  to  the  destiniction  of  the 
building,  the  crime  is  committed  if  there  is  any  of  the 
material  of  the  building  consumed  without  regard  to 
the  extent.^* 

§345.  Of  the  attempt.  An  attempt  to  commit  the 
crime  of  arson  rest  upon  the  same  principles  as  that  of 
any  other  crime.  If  a  person  entertains  an  intent  to  de- 
fraud another — an  insurance  company  for  instance,  and 
undertakes  to  put  that  into  effect,  by  attempting  to  bum 
the  house,  this  is  the  attempted  arson.  Setting  fire 
to  a  building  with  the  intent  to  bum  it  constitutes  the 
consunmiated  crime,  is  w^ell  settled."  A  mere  intent  to 
bum  a  house  of  course  is  not  the  attempted  crime.**^ 
There  must  be  a  specific  intent  to  burn  the  particular 
house  sought  to  be  burned.  If  a  person  attempted  to  fire 
his  own  house,  in  a  town  or  city,  it  was  an  indictable 
offense,  at  common  law." 

Lawson   Cases   Simplified   281;    Eex  although    such    house    or    tenenieut 

V.  Stallion,  1  Mood  C.  C.  1020;  Rex  may    not    be    burned,    he    shall    be 

V.  Russell,  C.  &  M.  541.  deemed    guilty    of    a    misdemeanor. 

23— Rex  V.  Taylor,  2  East  P.  C.  Mary  v.  State,  24  Ark.  44.     For  a 

:i98;   Rex  v.  Parker,  9  C.  &  P.  45;  full  discussion  of  the  matter  of  the 

Woolsey  v.  State,  30  Tex.  App.  346.  text  see  the  following:    McLane  v. 

24— Luke  v.  Stat*,  49  Ala.  30,  1  State,  4  Ga.  339;  State  v.  McGown, 

Hale  P.  C.  558.  20  Conn.  245;  McGray  v  People,  45 

25 — Where  a  person  attempts  to  N.  Y.   153;    State  v.  Wolfingcr,  20 

burn  a  house  by  setting  firo  to   it  Ind.  242;  Com.  v.  Trucker,  11  Mass. 

but  fails  to  accomplish  such  burning,  403. 

as  constitutes  arson,  is  guilty  by  7th  26—4  Bla.  222. 

section    of    our   statute,   as   well    as  27—6   East  464;    Com.   v.   Flynn, 

by  common   law,   of  a  high   misdo-  3  Cush.  520;   McDadc  v.  People,  29 

meanor.      The    7th   section   provides  Mich.    50;    People   v.   Bush,   4    Hill, 

that,    if    any    person    shall    set    fire  133;   State  v.   Johnson,   19  la.   233; 

to  any  building  or  tonenioiit  of  an-  Young  v.  Com.,  12  Bush.  243;   Com. 

nthrr,  with  intont  to  burn  the  same,  v.  llnrvoy.  10  Mot.  423;  on  the  ques- 


Arson  293 

§345a.  Attempt  at  arson,  substantive  crime.  Pursu- 
ing the  subject  in  the  preceding  section,  it  is  well  to  re- 
mark that  the  attempt  to  commit  the  crime  of  arson  is 
a  substantive  crime,  and  whether  the  acts  complained  of 
come  within  the  crime  of  arson  or  whether  that  of  at- 
tempted crime,  depend  in  all  cases  upon  the  facts.  The 
intent  is  essentially  as  that  of  any  crime,  and  is  evidenced 
by  the  initiatory  acts  and  the  consequences  thereof.  For 
it  has  been  held  that  in  the  case  of  a  prisoner  who  sets 
fire  to  his  jail  for  the  purpose  of  making  his  escape  is 
not  guilty  of  arson,  because  he  had  no  purpose  of  destroy- 
ing the  building  or  injuring  the  property.^^ 

The  attempt  need  not  be  the  last  proximate  act,  before 
committing  the  crime,  after  preparations  are  made.** 
It  is  not  necessary  that  the  principal  should  do  the  acts 
in  person,  it  is  enough  that  he  is  connected  with  the  doing 
of  the  act,  either  as  accessory  before  or  after  the  fact, 
or  as  the  principal.^*^ 

§  345b.  Intent.  The  intent  must  be  evil,  wilful,  volun- 
tary and  malicious,  in  other  words,  with  the  purpose  of 
burning  the  property.^^  The  motive  does  not,  in  all  cases, 
have  anything  to  do  with  the  committing  of  the  act  of 
burning,  it  is  generally  enough  that  the  act  was  done 
wilfully  and  maliciously,  that  is,  in  disregard  of  the 
owner,  as  applied  under  the  modem  statutes,  but  in  dis- 

tion  of  the  gist  of  the  offense  and  84  Pac.  828.  Ann.  Cas.  627,  4  L.  R. 

the  proper  allegations  in  the  indict-  A.  (N.  S.)  417;  State  v.  Dumas,  118 

ment.  Minn.  77,  136  N.  W.  814,  41  L.  R. 

28— Jenkin   v.    State,    53    Ga.   33,  A.   (N.  S.)   430,  6  L.  R.  A.   (N.  S.) 

21  Am.  Rep.  255;  Mary  v.  State,  24  805. 

Ark.    44,    81    Am.    Dee.    60,    note;  30— State   v.    Taylor   in   note    29 

State  V.  Young,   101  Am.  St.  Rep.  State  v.   Bowers,  35  S.  C.  262,   14 

24.     The  doctrine  of  the  text  is  de-  S.  E.  488,  28  A.  S.  R.  847,  15  L. 

nied  by  other  authorities,   but  the  R.  A,  199. 

most  humane  as  well  as  the  most  lib-  31 — State   v,    McLain,    43    Wash. 

eral  reasonable  principles  of  the  law  267,  86  Pac.  390,  10  Ann.  Cas.  321 ; 

upholds  the  text.  Mary  v.  State,  24  Ark.  44,  81  Am. 

29— State  v.  Taylor,  47  Ore.  455,  Dec.  60. 


294  Ckiminal  Law 

regard  of  the  occupants  of  the  chvelling,  as  applied  under 
the  common  law.  It  is  sufficient  that  it  is  a  dwelling 
house  under  the  common  law,  for  the  crime  is  the  injury 
or  probable  injury  to  the  occupants  of  the  house,  but  the 
statutes  expand  the  crime  to  reach  the  burning  of  any 
kind  of  house  or  dwelling.  The  intent  is  presumed  and 
predicated  more  upon  the  probable  injury  to  the  owner 
by  the  destruction  of  his  property,  than  the  injurj^  to 
the  occupant s.^^ 

32— Carlton  v.   People,   150,    181,       v.  State,  24  Ark.  44,  81  Am.  Dee.  60, 
37  N.  E.  244,  41  A.  S.  R.  346;  Mary       see  note  p.  65. 


CHAPTER  XVII 


ASSAULTS  AND  BATTERY 


§  .'{46.  Definition  and   illustration. 

§  347.  Present  ability  must  be  taken 
from  standpoint  of  defend- 
ant. 

§  348.  Distinction  between  assault 
and  battery. 

§  349.  Physical   force   necessary. 

§  350.  Intent  and  ability  must  con- 
cur. 

§  351.  Speeiflc  intent  not  necessary. 

§  352.  The  means  used. 

§  353.  Of  the  consent  of  the  as- 
sailed. 

§  354.  Simultaneous  language  in  ex- 
planation   of    assault,    354. 

§  355.  Under  what  circumstances 
violence  may  be  inflicted. 


§  356.  Violence  inflicted  in  the  de- 
fense of  property. 

§  357.  As  to  the  right  of  those  who 
frequent  hotels. 

§  358.  The  degree  of  force  hotel 
proprietor  may  use. 

§  359.  Of  those  occupying  particu- 
lar relations  to  each  other. 

§  360.  Special  duty  towards  others. 

§  361.  Act  of  the  assailant  to  be 
viewed  from  standpoint  of 
assailed. 

§  302.  Division  of  assaults  under 
statutes. 

§  363.  Preventing  unlawful  acts. 


§346.  Definition  and  illustrations.  The  use  of  any 
unlawful  violence  upon  the  person  of  another  with  the 
intent  to  injure  him,  whatever  the  degree  of  the  violence 
used,  is  an  assault  and  battery.  Any  attempt  to  commit 
a  battery  or  any  threatening  gesture  show^ing  by  itself  or 
words  accompanying  it,  a  reasonable  apprehension  that 
an  injury  will  be  inflicted,  is  an  assault.^  To  attempt  to 
injure  another  when  it  is  physically  impossible  to  do  so 
is  not  an  assault.  Thus  to  point  a  loaded  gun  at  an- 
other beyond  carrying  distance  is  not  an  assault,  but 
otherwise  if  within  carrying  distance.^    To  point  a  loaded 


1—1  Russ  on  Crs.  Am.  Ed.  1019; 
State  V.  Blackwell,  9  Ala.  79;  Tar- 
ver  V.  State,  43  Ala.  354;  Lawson  v. 
State,  30  Ala.  14,  1  East  P.  C.  406; 


State,  29  Tex.  App.  250;   Id.  15  S. 
W.  717. 

2—1    Hawks.   62,    sec.    1;    Rex   v. 
Jones,  C.  &  K.  530;  McKay  v.  State. 


Roscoe's    Cr.    Ed.    304;     Farrar    v.       44  Tex.  43;   Rex  v.  George,  9  C.  & 

295 


296  Criminal  Law 

gun  at  another  within  cariying  distance,  the  party  at 
whom  it  is  pointed  knowing  that  it  is  unloaded,  does 
not  constitute  the  assault.^  There  is  a  line  of  decisions, 
holding  that  an  assault  cannot  be  committed,  where  the 
firearm  presented  is  unloaded  and  incapable  of  being  dis- 
charged, and  that  too,  where  the  party  assailed  is  igno- 
rant of  the  fact  that  it  is  not  loaded.*  The  gist  of  this 
offense  is  the  attempt,  a  force  put  in  motion,  coupled 
with  the  intent  to  inflict  an  injury  upon  the  person  of 
another.  The  definition  herein  given  being  a  statutory 
one  is  in  some  particulars  more  comprehensive  than  the 
general  definition  found  in  the  books,  but  it  embraces  in 
general  terms  the  declarations  of  the  courts  upon  the  sub- 
ject. In  a  general  sense  an  assault  may  be  defined  to 
be  an  intentional  attempt,  by  violence  to  do  an  injury 
to  the  person  of  another;  a  battery  is  the  infliction  of 
the  violence,  however  slight.  Thus  to  touch  the  clothes 
worn  by  another  in  a  spirit  of  anger  or  in  a  rude  manner 
either  w^antonly  or  in  malice,  will  constitute  a  battery.^ 

§  347.  The  term  ** present  ability"  must  be  taken  from 
the  defendant's  standpoint.  Where  the  defendant  has 
the  intent  to  commit  the  assault  and  at  the  time  of  the 
intention  so  fixed  in  his  mind,  he  is  also  possessed  with 
the  means  and  the  ability  on  his  ow^n  part  to  carry  the 
intent  into  effect  and  does  attempt  to  caiTy  the  intent 

p.  483.     This  holds  that  to  point  a  5—2    Bish.   New   Cr.   L.   sec.   23. 

pistol  at  another  whether  loaded  or  "An  assault  is  an  unlawful  physical 

not,  is  not  an  assault.     Stevens  v.  force  partly  or  fully  put  in  motion, 

Meyers,   4   C.  &  P.  340,  holds  that  creating  a   reasonable  apprehension 

there  must  be  a  present  ability  to  of   immediate   physical  injury  to  a 

commit  an  injury  if  not  prevented.  human  being."     3  Greenl.  sec.   59. 

3 — Beach  v.  Hancock,  59  Am.  Dec.  ' '  An  assault  is  defined  by  writers  on 

373,  27  N.  H.  223;  State  V.  Shepard,  criminal    law   to   be   an   intentional 

10  la.  106.  attempt   by   force   lo   do   an   injury 

4 — Chapman    v.    State,    78    Ala.  to  the  person  of  another. ' ' 
403,  56  Am.  Rep.  42;  Swails  v.  State, 
8  Ind.  524;  Blacke  v.  Barnard,  9  C. 
&  v.  02G. 


Assaults  and  Battery  297 

into  effect,  he  then  is  nevertheless  guilty  of  the  crime 
intended,  notwithstanding,  at  the  time  of  the  attempt  to 
commit  the  crime,  the  object  upon  which  the  crime  was 
to  be  inflicted  was  uninjured.  Therefore  the  modem  rule 
seems  to  be  that  the  present  ability  to  commit  the  crime 
is  predicated  upon  the  ability  of  the  defendant  to  inflict 
the  injury,  by  means  then  possessed  by  him,  and  is  not 
dependent  upon  the  existence  or  the  non-existence  of 
the  ability  to  inflict  the  injury  upon  the  person  intended, 
by  reason  of  mistake,  miscalculation,  misconception,  or 
accident  or  misadventure,  it  was  impossible  to  commit 
the  crime  in  full.  As  where  a  policeman  desiring  to  catch 
the  defendant  in  the  act  of  gambling,  and  for  that  pur- 
pose bored  a  hole  in  the  roof  of  the  building  in  order  to 
look  through,  and  the  defendant  supposing  that  the  po- 
liceman was  there  shot  at  the  hole,  but  at  the  time  of 
the  shooting  he  being  at  another  portion  of  the  roof  was 
uninjured,  the  court  held  that  this  constituted  the  crime 
of  attempt  to  murder.^  In  another  case  the  court  says: 
*  *  So  in  this  case  the  intent  is  evidenced  by  the  firing  into 
the  bedroom  with  a  deadly  weapon  accompanied  with  a 
present  capacity  in  the  defendant  to  murder  Warren  if 
he  were  in  the  room,  and  the  failure  to  do  so  only  be- 
cause WaiTen  haply  retired  upstairs  instead  in  the  bed 
into  which  the  defendant  fired,  made  out  a  perfect  case 
of  attempt  within  the  meaning  of  the  statute. "  ^  "  When- 
ever the  law  makes  one  step  towards  the  accomplishment 
of  an  unlawful  object  with  the  intent  or  purpose  of  ac- 
complishing it,  criminal,  a  person  taking  that  step,  with 
that  intent  or  purpose  and  he  himself  capable  of  doing 
every  act  on  his  part  to  accomplish  that  object,  cannot 
protect  himself  from  responsibility  by  showing  that,  by 
reason  of  some  fact  unknown  to  him  at  the  time  of  his 
criminal  attempt,  it  could  not  be  carried  into  effect.  "• 

6— People   V.   Lee  Kong,  95   Cal.  7— State  v.  Mitchell,  170  Mo.  633, 

666,  29  Am.  St.  Rep.  165,  30  Pac.       71  S.  W.  175,  94  Am.  St.  Eep.  763. 
^^-  8— Kunkle  v.  State,  32  Ind.  220; 


298  Criminal  Law 

§  348.  Distinction    between    assaults,     and    battery. 

Briefly,  then,  there  is  this  distinction  between  an  assanlt 
and  a  batteiy:  (1)  A  batteiy  consists  in  the  infliction 
of  some  sort  of  unlawful  violence  upon  the  person  of  an- 
other. Any  injuiy  however  slight  is  sufficient.  Thus 
laying  the  hand  upon  another  in  menacing  or  angry  man- 
ner, striking  with  any  kind  of  instrument,^  spitting  in 
the  face  or  on  the  person,^®  the  administration  of  con- 
tharades  or  other  drug  for  the  purpose  of  obtaining  the 
consent  of  a  female  to  an  act  of  carnal  intercourse,^^  the 
exposure  of  helpless  and  defenseless  persons  to  the  in- 
clemency of  the  weather,  are  batteries.^*^  (2)  An  assault 
consists  in  an  attempt,  or  an  ineffectual  endeavor  to  com- 
mit a  batteiy,  coupled  with  a  real  or  apparent  ability 
to  commit  it;  as  where  one  rides  after  another  in  such 
a  manner  as  to  force  him  to  seek  a  place  of  safety;  ^^ 
or  where  by  threats,  or  the  exhibitions  of  weapons,  an- 
other is  forced  to  retire  or  retreat  from  his  position 
against  his  will,  in  order  to  avoid  apparent  danger  of  in- 
juiy; "  the  presentation  of  a  gun  or  other  firearm  at  an- 
other within  shooting  distance; "  the  cutting  of  the  hair 
of  another  is  a  batteiy  but  an  assault  to  attempt  it  with- 
out his  consent;  ^^  to  ride  a  vicious  horse  so  near  another 
as  to  create  the  fear  that  an  injury  will  be  inflicted; "  to 
cause  a  female  patient  to  strip  naked,  upon  the  fraudu- 
lent pretense  of  the  accused,  a  physician,  that  he  cannot 

Com.    V.    McDonald,    5    Gush.    365;  11— Com.    v.    Straton,    114    Mass. 

People  V.   Sulilvan,   173   N.   Y.   122,  303,  19  Am.  Rep.  350. 

93  Am.  St.  R«p.  582,  65  N.  E.  989.  12—5  Cox  C.  C.  255. 

9_Stevens  Dig.  L.  Am.  Ed.  181;  13— State    v.    Sims     (S.    C).    35 

State  V.  Baker,  65  N.  C.  332;  State  Strob.   137;    Rex   v.   Day,   1   Cox  C. 

V.    Johnson,    17    Tex.    515;    Am.    &  C.  207. 

Eng.    En<-a.    L.    Vol.    I,    page    784;  14 — State   v.   Sliipiuan,   81    N.    C. 

Com.  V.  Stratton,  114  Mass.  303,  19  513;  State  v.  Rowls,  65  N.  C.  334. 

Am.  Rep.  350.     These  cases  in  gen-  15— Morgan  v.  State,  33  Ala.  413. 

cral   carry   out   tlic   doctrine   of   the  10— Ford    v.   Skinner,   4    C.   &   P. 

text.  2;!9. 

10— Reg    V.     CMocworth,     6     Mod.  17— Martin  v.  Shappoe,  3  C.  &  P. 

172;   1  Swinton  587.  373. 


Assaults  and  Battery  299 

otherwise  judge  of  her  sickness; "  the  placing  of  poison 
where  a  person  may  unintentionally  take  it.  So,  also, 
where  there  is  a  duty  to  extend  care  or  protection  to  in- 
digent and  dependent  person,  such  as  invalids,  infants, 
decrepits  or  lunatics  a  failure  or  a  refusal  to  extend  such 
protection  or  care  are  guilty  of  assaults,  notwithstanding 
no  injuiy  result  from  refusal  or  neglect. 

§  349.  Physical  force  is  necessary.  Adopting  the  enu- 
merated instances  of  the  preceding  section  as  criteria 
of  the  different  modes  whereby  assaults  and  batteries  may 
be  committed  the  conclusion  is  absolute  that  the  violence 
entering  into  the  composition  of  these  offenses  is  that  pro- 
duced by  physical  force.  This  is  not  intended  to  be  a 
comprehensive  use  of  the  tenn  of  ''physical  force"  but 
in  a  partial  or  limited  sense,  for  it  has  been  said,  that 
no  words  or  language  (which  may  in  a  philosophical 
sense  include  physical  force),  however  disgraceful  and 
opprobrious  and  insulting  is  an  assault,^^  nor  can  an 
assault,  or  an  assault  and  battery,  be  justified  by  it.^" 
Words  accompanying  the  act  or  the  gestures  of  the  ac- 
cused, however,  may  be  taken  into  account,  for  the  pur- 
pose of  showing  the  degree  of  force  intended  to  be  used, 
and  might  in  the  particular  case,  make  that  an  assault 
which  would  not  othenvise  have  been  or  at  least  have 
the  effect  to  relieve  the  act  of  its  assaulting  character.^^ 
The  degree  of  violence  must  proceed  beyond  a  mere  men- 
is— Rex  V.  Eosinski,  I.  M.  C.  C.  Y.)  319;  Same,  10  Am.  Dec.  230; 
19-  Reid  v.  State,  71  Ga.  8G5;  Bcreliard 

19— State   V.   Davis,    1    Ired.    (X.       v.    Booth,    4    Wis.    67;    Mitchell    v. 
C.)   125,  35  Am.  Dec.  735;   State  v.       State,  41  Ga.  527. 
Martin,    30    Wis.    216;    Lawson    v.  21— State   v.    Shipman,   81   N.   C. 

State,  30  Ala.  14;  Warren  v.  State,  513;  State  v.  Rowls.  65  N.  C.  334; 
33  Tex.  517;  People  v.  Barnsby,  Brown  v.  State,  58  Ga.  212;  Hawk- 
32  N.  Y.  525;  People  v.  Libby,  43  ins  v.  State,  13  Ga.  322,  58  Am. 
Mich.  521,  5  N.  W.  982.  Dec.   517;    Lorge  v.   State,   95   Ind. 

20— Lee  v.  Woolsey,  19  Johns  (N.       114;   Allen  v.  People,  82  111.  610. 


300  Cbiminal  Law 

ace,  to  that  of  taking  a  step  towards  the  accomplishing 
the  battery.'^'^ 

§350.  Intent  and  ability  must  concur.  There  must 
exist  an  intent  and  an  ability  or  supposed  ability  on  the 
part  of  the  accused  to  accomplish  the  batter^^^^  In  the 
absence  of  the  real  ability  or  the  supposed  power  to 
commit  the  injuiy  the  mere  intent  to  do  so  would  not 
be  adequate  to  constitute  the  assault.  As  suppose,  A  hav- 
ing the  intent  to  injure  B,  presents  a  pistol  at  him,  in  a 
shooting  position,  but  at  the  time  B  knows  that  A  can- 
not inflict  injui-y  by  that  means  the  intent  and  the  ability 
would  in  this  case  be  inconsistent  with  each  other  and  no 
crime  would  be  committed;  but  otherwise  if  B  did  not 
know  that  the  pistol  was  not  loaded,  or  in  other  words 
believed  it  to  be  loaded.^  Again  as  where  the  accused 
presented  the  gun  at  the  prosecutor  and  snapped  it  three 
times  but  which  failed  to  explode  because  during  the 
melee,  without  the  knowledge  of  the  accused  the  cap  fell 
off,  the  court  held  that  the  assault  was  committed.^*  So, 
also,  in  a  case  in  Texas  the  defendant  presented  his  pistol 
at  the  stomach  of  the  assaulted  party  and  snapped  it,  the 
court  held  that  the  specific  intent  to  kill  was  present  and 
sustained  a  conviction  of  an  assault  to  murder.'^^ 

§  351.  A  specific  intent  is  not  necessary.  The  intent 
need  not  be  specific,  but  a  general  malevolence  is  suffi- 
cient. In  this  respect  assaults  differ  from  the  general 
doctrines  of  Attempted  Crimes,  as  explained  in  chapter 

22 — Speers  v.  State,  2  Tex.  App.  Cush.    365;    Iliuniltbn   v.    State,    36 

244;    People  v  Makin,  8  Oal.  547;  Ind.  280,  10  Am.  Rep.  22. 

State  V.  Blackwcll,  9  Ala.  79;  State  24— State  v.  Martin,  85  N.  C.  508, 

V.  Daniel,   136  N.  C.   571,  48  S.  E.  38  Am.  Rop.  711. 

.544,  103  A.  S.  R.  970;  State  v.  God-  25— Mullen  v.  State,  45  Ala.  431, 

fry,    17   Ore.   300,   20   Pac.   625,   11  6  Am.  Rep.  691. 

A.  S.  R.  830.  2G— Ilanloy    v.    State,    47    8.    W. 

2.'{— People  V.  .Tones,  46  Mich.  441,  Rep.   375    (Tex.). 
;»  X.  W.  486;   (jom.  v.  McDonald,  5 


Assaults  and  Battery  301 

on  ''Attempts."  Indeed  the  adjudicated  cases  declare 
an  assault  may  be  committed  without  an  intent.  As  where 
one  fired  his  pistol  for  the  purpose  only  of  frightening 
the  person;  or  in  a  spirit  of  frolic,  the  court  held  that 
the  intent  was  sufficiently  shown  by  the  circumstances.'*^ 
So,  also,  where  a  school  boy  of  such  years  as  to  be  re- 
sponsible for  crime  but  who  in  sport  and  play  threw  a 
stone  at  another  and  hit  him  was  not  permitted  to  defend 
against  the  charge  of  assault  and  battery,  because  of  the 
want  of  intent  to  injury.^^  But  in  a  Massachusetts  case 
where  one  fired  his  pistol  at  another  for  the  mere  purpose 
of  frightening,  and  there  being  no  injury  in  fact,  the  court 
held  that  there  was  no  assault. ^^ 

§352.  The   means   used   is   an   unimportant   matter. 

Poisons  delivered  to  another  for  the  purpose  of  having 
him  take  it  is  an  assault.  So,  poisons  left  where  a  child 
may  unintentionally  take  it  is  also  an  assault.  Poisons 
thrown  at  another  which  will  in  its  ordinary  effect 
produce  injury  is  also  an  assault.  Such  as  carbolic  acid 
and  the  like.  Cotharades  delivered  to  a  woman  that  she 
may  take  it  is  an  assault.  So,  it  may  be  stated  that  all 
and  any  means  whereby  a  person  may  be  injured  will 
constitute  the  assault.    And  in  keeping  with  this  prin- 

See    following    case    which    may  136  A.  S.  E.  147;   State  v.  Herron, 

throw  light  upon  the  doctrine  of  the  12  Mont.  230,  20  Pac.  810,  33  A.  S. 

text.     People  v.  Lie  Hang.,  95  Col.  R.  576;   State  v.  Daniel,  136  N.  C. 

666,  30  Pac.  800,  29  A.  S.  R.  165,  571,  48  S.  E.  544,  103  A.  S.  R.  970. 
17  L.  R.  A.  626,  103  A.  S.  R.  974,  28— Hill  v.  State,  36  Ga.  578. 

and  note,  13  Ann.  Cases,  41  L.  R.  29— Com.  v.  Mann,  116  Mass.  58; 

A.  (N.  S.)  182;  Price  v.  U.  S.,  156  Degenliardt  v.  Heller,  93  Wis.  662, 

Fed.  950,  85  C.  C.  A.  247,  13  Ann.  57  A.  S.  R.  945.  Another  ease  referred 

Cas.  483,  15  L.  R.  A.   (N.  S.)   1272,  to  in  the  opinion  of  the  court:  Vos- 

and  note.  berg  v.  Putney,  80  Wis,  527,  27  A. 

27— Smith   v.   Com.   Pa.   St.   324;  S.  E.  47.     The  note  refers  to  Kleen 

Perkins  v.  Stein,  94  Ky.  433,  22  S.  v.  Stub,  9  Ind.  App.  365,  53  A.  S. 

W.    649,   20   L.   R.   A.    861;    People  R.   354;    State  v.   Herron,   12   Mon- 

V.  Raher,  92  Mich.   165,  52  N.  W.  tana    230,    33    A.    S.    R.    576.     See 

625,  31  A.  S.  R.  575;  People  v.  Carl-  note  to  this  ease, 
son,  160  Mich.  426,  125  N,  W.  361, 


302  Ckimixal  Law  i 

ciple  it  may  be  said  that  if  tlie  mental  or  nervous  sus- 
ceptibility of  a  person  is  such  as  to  be  easily  subjected 
to  the  influences  of  another,  as  to  cause  him  to  inflict  an 
injury  upon  himself,  or  to  place  himself  in  such  a  condi- 
tion that  injury  may  be  inflicted,  this  will  also  be  an  as- 
sault.^® Sometimes  it  is  rather  a  metaphysical  deduction 
to  draw  the  distinction  between  the  means  and  the  force 
used,  as  they  are  the  one  and  the  same  thing  operating- 
through  the  assailant.  As  in  the  case  of  false  imprison- 
ment the  detention  of  another  against  his  will  (which  is 
conceded  to  be  an  assault)  may  be  accomplished  by 
threats  or  by  the  exhibition  of  weapons.^^  In  the  fonner 
the  force  and  the  means  are  the  same  and  may  consist 
in  the  words  only;^^  in  the  latter  the  exliibition  of 
weapons  unaccompanied  by  words  would  constitute  the 
assault.^^  Another  illustration  is  found  where  one  repre- 
sents himself  to  be  an  officer  and  holds  another  against  his 
will,  words  here  are  the  means  as  well  as  the  force,  which 
operates  upon  the  assailant  and  holds  him  against  his  will 
and  thereby  constitutes  the  assault. 

§  353.  Of  the  consent  of  the  assailed.  The  consent  of 
the  coni})hrniant  deprives  the  act  of  the  character  of  as- 
sault.^^  If,  however,  the  consent  is  acquired,  or  acqui- 
escence secured  through  fraud  or  subterfuge,  such  con- 

30 — See  the  following  eases.     Eex  34— Duncan  v.  Com.,  G  Dana   (N. 

V.   Hanson,  2   C.  &  K.  912;    Kcx  v.  Y.)  295;  Anochk-ks  v.  State,  6  Tex. 

Walkdon,   1   Cox  C.  C.  282;   Rex  v.  App.  524;  Clamper  v.  State,  12  Ohio 

Dilworth,  2  M.  &  R.  5:31.     Com.  v.  St.  4G6;  I'eople  v.  VanclcrgiTon,  lOG 

Stratton,  19  Am.  Dec  :550,  114  Mass.  Cal.   241,  39  Pac.   G07,  4G  A.  S.   R. 

30:{.  234;  Goldnamer  v.  O'Brien,  98  Ky. 

31— Russ  on  Crs.,  9th  E.I.,  1023;  5G9,  33  S.  W.  831,  56  A.  S.  R.  378, 

Smith  V.   State,   7    Humph.    (Tenn.)  36   L.   R.   A.   715;    Adams  v.   Wag- 

4:5.  Roner,  33  Ind.  531,  5  Am.  Rep.  230; 

;\2 — Smith    v.    State,    7     liiiin|ili.  (iroton    v.    Gilden,    84    Me.    589,    24 

(Tenn.)    4:!.  Atl.    1008,   30    A.    S.    R.   413;    I'ratt 

33— Stfitc  V.   Hampton,   63   N.   U.  v.  Davis,  224  111.  300,  70  N.  K.  5G2, 

13;    State  v.  Clmrcli,  63   N.   C.   15;  8  Ann.  Cas.  197,  7  L.  R.  A.  (N.  S.) 

Johnson  V.  State,  17  Tex.  515;  Long  609;    Willey    v.    Carpenter,    G4    Vt. 

V.  RodKor.H,  17  Ala.  .540.  212,  23  Atl.  630,  15  L.  R.  A.  853. 


Assaults  and  Battery  303 

sent  or  nonresistance,  is  no  defense.^^  Consent  given  to  a 
felonious  assault  is  illegal,  and  one  acting  upon  such  con- 
sent commits  an  assault,  except  in  the  case  of  assaults  or 
attempts  to  commit  rape.  In  this  latter  the  consent  of 
the  female  to  an  act  of  carnal  intercourse  deprives  the  act 
of  the  essentials  of  assault.  For  A  to  administer  poisons 
to  B  at  his  request,  if  B  die  from  the  effects,  A  is  guilty 
as  a  murderer,  for  the  law  nowhere  recognizes  the  right 
for  one  person  to  kill  another,  except  in  the  case  where 
one  must  perish  in  order  that  the  other  may  live,  even 
with  such  other's  consent  or  solicitation.  Thus  the  fight- 
ing of  a  duel  where  two  persons  meet  by  previous  agree- 
ment to  fight  with  deadly  weapons,  the  consent  of  the 
parties  will  not  be  an  excuse  for  their  acts  and  the  con- 
sequent results.  No  one  has  the  right  to  wanton  with 
his  life.  In  keeping  with  this  rule  that  fraud  vitiates 
consent,  it  has  been  held  that  where  the  defendant  was 
affected  with  a  venereal  disease,  and  obtained  the  consent 
of  a  female  to  an  act  of  illicit  intercourse,  she  being  igno- 
rant of  his  condition,  and  she  being  thereby  inoculated 
that  it  was  an  assault.^^  So,  where  a  married  woman 
consents  to  an  act  of  caiTial  intercourse  induced  thereto 
by  the  false  and  fraudulent  declaration  that  he  was  her 
husband  which  she  believed  to  be  true.  And  so  also 
where  a  physician  obtained  consent  to  a  carnal  com- 
munion with  his  patient,  who  is  ignorant  of  the  act.^^ 

§  354.  Simultaneous  language,  explanatory  of  assault. 

That  which  would  otherwise  be  an  assault  and  in  which 
an  intent  to  injure  might  be  inferred  may,  however,  be 
negatived  by  accompanying  and  simultaneous  language, 
or  circumstances  connected  with  the  transaction.  As 
where  one  laid  his  hand  on  his  sword  and  declared,  "If  it 

35— Rex   V.    Bennett,   4   F.    &  F.  1005;    Eex    v.    Sinclair.    13    Cox   C. 

1005;  People  v.  Barnsby,  32  N.  Y,  C.  28. 

^25.  37— R^       V.   Case,  4   Cox  C.   C. 

36 — Rex  V,    Burnett,   4   F.   &  F.  220. 


304  Criminal  Law 

were  not  assize  time  I  would  not  take  such  language 
from  you";  ^*  and  where  the  accused  raised  his  cane  with- 
in striking  distance  and  shook  it  at  the  prosecutor  and 
said,  ''If  you  were  not  an  old  man  I  would  knock  you 
down " ;  ^^  or  where  the  accused  raised  his  hand  within 
striking  distance  and  said,  "If  it  was  not  for  your  gray 
hairs  I  would  tear  your  heart  out. "  ^"^  In  such  instances 
there  is  not  intent  although  the  means  and  the  ability 
are  present  to  inflict  the  injury.  But  where  the  injury 
is  withheld  upon  the  condition  that  the  assailed  do  some- 
thing as  commanded  by  the  assailant,  the  intent  has  been 
held  to  be  sufficient  to  constitute  the  assault:  as  where  the 
accused  doubled  up  his  fists  in  a  threatening  manner  and 
said,  "If  you  say  that  again  I  will  knock  you  down";*^ 
and  where  one  said  to  another,  ' '  If  you  do  not  get  out  of 
here  I  will  give  you  a  whipping. ' '  From  the  standpoint 
of  the  assaulted  party  there  must  be  real  or  apparent 
ability  present  in  the  assailant  to  inflict  the  injury.'*^  It 
must  be  of  such  a  character  as  to  create  a  well  founded 
apprehension  of  receiving  an  injury  from  the  assailant. 
If  the  assaulted  party  knows  that  the  injury  cannot  be  in- 
fiicted,  or  there  is  not  a  reasonable  apprehension  that  it 
will  be  inflicted,  there  is  no  assault.  Actual  peril  is  not  re- 
quired. As  where  the  assailant  is  not  in  striking  distance; 
or  he  knows  that  the  gun  or  the  pistol  is  not  loaded;  or 
that  an  injuiy  cannot  be  inflicted  with  them.  But  if  the  as- 
sailant rushes  at  another  and  is  stopped  immediately  be- 
fore he  reaches  close  enough  to  inflict  the  battery,  this  is 
an  assault,  for  this  is  reasonably  calculated  to  produce  a 
well  founded  belief  that  injuiy  will  be  inflicted. 

:!8 — Tuberville  v.  Savage,  1  Mod.  Stevens  v.  Meyers,  4  C.  &  P.  349; 

o.  State    V.    Vannoy,    65    N.    C.    532; 

39— State  v.  Crow,  1  Ircd.  375.  State    v.    Shipman,   81    N.    C,    513; 

40— Com.  V.  Eyrl,  1  S.  &  R.  347.  State  v.  Blackwcll,  9  Ala.  79;  State 

41— U.  S.  V.  Meyers,  1  Cr.  C.  C.  v.  Martin,  85  N.  C.  508,  39  Am.  Rep. 

310.  711. 

42— People  v.  Vrlas,  27  Cal.  630; 


Assaults  and  Battery  305 

§  355.  Under  what  circumstances  may  violence  be  in- 
flicted upon  the  person  of  another.  This  subject  carried 
to  full  length  would  include  the  doctrine  of  self-defense. 
This  has  been  fully  discussed  in  our  chapter  on  Homicide. 
The  general  rule  and  the  general  doctrine  of  the  law  is 
that  no  person  has  the  right  to  offer  or  to  inflict  any  in- 
jury or  restraint  upon  the  person  of  another,  but  this  has 
several  exceptions.  The  first  of  these  is  that  an  officer  for 
the  pui^ose  of  making  an  an-est  for  the  violation  of  the 
laws  is  authorized  to  forcibly  take  the  possession  of  the 
body  of  another,  in  two  different  instances.  First:  AVliere 
he  has  a  legal  warrant  for  his  arrest.  Second:  Where  a 
violation  of  the  law  has  taken  place  in  his  presence. 
Where  one  has  committed  an  offense  against  the  laws  he 
has  by  his  acts  forfeited  his  right — his  othei'wise  natural 
right — to  resist  such  interference.  The  force  by  the 
officer  must  not  however  be  greater  than  is  required  to 
make  the  arrest,  and  if  he  do  so  he  then  forfeits  his  right 
and  the  accused  may  resist.  So,  also,  this  doctrine  is  car- 
ried to  the  private  citizen,  and  where  a  ciinie  of  the  more 
malignant  kinds  are  committed  in  his  presence  he  may 
make  the  arrest  and  the  accused  has  no  right  to  complain. 
So,  also,  a  private  person  may  be  summoned  by  the  proper 
arresting  officer  to  aid  in  making  the  arrest,  and  of  this 
the  accused  has  no  right  to  complain.  If  such  person 
makes  the  an-est,  it  is  not  an  assault.  So,  again,  where 
the  judgment  of  the  law  is  to  be  carried  out,  the  officer  is 
permitted  to  inflict  the  punishment  meted  out  by  the  law, 
and  the  accused  has  no  right  to  complain  for  the  reason 
he  has  by  the  sentence  and  judgment  of  the  law  forfeited 
his  right  to  resist.*^ 

§  356.  Violence  inflicted  in  the  defense  and  protection 
of  property.     Eveiy  person  has  the  legal  right  to  pro- 

43— Price  v.  State,  17  Tex.  App,  60 ;  Hor,  &  Thorn.  Cr.  Defenses  719 ; 

132;   Evans  v.  State,  13  Tex.  App.  and  cases  cited.     Price  v.  State,  36 

225;    Kerby  v.  State,  5  Tex.  App.  Miss.  531,  72  Am.  Dec.  195. 
C.  L.— 20 


306  Criminal  Law 

tect  his  property  from  the  trespass,  or  otherwise  inter- 
ference with  his  rightful  enjoyment  of  it.  This  right  to 
protection  is  dependent  upon  the  character  of  the  prop- 
erty and  the  nature  of  the  trespass  and  the  right  of  the 
owner.  It  is  measured  by  the  establishment  of  several 
different  facts  and  circumstances.  Thus,  in  the  protec- 
tion of  the  property,  from  the  intrusion  of  a  mere  tres- 
passer, who  goes  upon  land  or  premises  without  consent, 
but  with  no  intent  to  do  any  wrong,  may  be  ejected  only 
after  he  has  been  requested  by  the  owner  to  decamp  or 
desist.**  If  he  does  not  desist  and  remove  from  the  prop- 
erty, then  the  owner  has  the  lawful  right  to  use  force 
and  this  force  is  not  an  assault.  In  the  case  where  the 
trespasser  has  the  intent  while  on  the  premises  or  where 
he  goes  upon  the  land,  home  or  premises,  with  the  intent 
to  inflict  an  injury  to  the  person  of  the  owner,  rather  than 
upon  the  propertj^,  the  owner  is  allowed  by  law  to  use  a^' 
force  necessaiy  to  protect  himself  from  the  assault  and 
to  this  end  may  kill  the  trespasser,*^  So,  again  in  the 
case  of  the  larceny  of  the  property  of  the  owner,  where 
the  same  is  committed  under  circumstances  amounting  to 
felony  at  common  law  the  owner  may  kill  for  the  protec- 
tion thereof;  as  where  the  attempting  to  commit  the 
crime  of  burglary,  or  the  crime  of  arson,  or  that  of  rob- 
bery. The  ti-ue  reason  why  such  drastic  measures  may 
be  allowed  is  really  upon  the  theory  that  these  crimes  are 
in  the  nature  of  assaults  upon  the  persons  of  the  owners 
of  the  property,  rather  than  ui)on  the  property,  the  differ- 

44— Connors    v.    State,    117     liul.  lU    A.   S.   R.   573,   8   L.   R.   A.   516; 

347;    Clark    v.    State,   89   Ga.    786;  Ilickey  v.   United  States,   168  Fed. 

Long  V.  People,  102  111.  331;   State  536,  93  C.  C.  A.  516,  22  L.  R.  A. 

V.   Davis,   80   N.  C.  351,  30   A.   M.  (N.  S.)  728. 

Rop.  86;  Slate  v.  Steel,  106  N.  C.  45 — Jchnson  v.  State,  19  Tex. 
766,  11  S.  E.  478,  19  Am.  St.  Itep.  App.  545;  Tcoplc  v.  Dann,  53  Mich. 
573,  8  R.  L.  A.  516.  A  full  discns-  490,  51  Amer.  Rep.  151;  Harrison 
.sion  may  be  found  in  these  cases:  v.  State,  24  Ala.  67;  State  v.  Kin- 
Cole  V.  Ronen,  88  Mich.  219,  50  N.  dry,  20  la.  567;  Monroe  v.  State, 
W.  138,  13  L.  R.  A.  848;  State  v.  5  Ga.  85;  State  v.  Thompson,  9  la. 
Steel,  106  N.  C.  766,  11  S.  E.  478,  188. 


Assaults  and  Battery  307 

ence  being  only  in  the  degrees  of  the  interference  with  the 
personal  rights  of  the  owners ;  the  difference,  however,  be- 
ing so  slight,  are  regarded  as  being  the  same.  A  passenger 
of  any  common  carrier  who  refuses  when  requested  to 
pay  his  fare  or  where  he  will  not  conform  to  the  reason- 
able and  just  rule  of  the  carrier,  may  be  ejected  from  its 
depots,  cars,  boats,  and  the  like,  and  the  same  is  not  an 
assault  unless  more  force  is  used  than  is  required  to  eject. 
So,  also,  persons  who  have  property  used  for  the  purpose 
of  the  entertainment  of  others,  or  for  business,  have  the 
right  to  protect  the  premise  and  the  business  from  the 
interference  of  such  persons.  The  carrier  has  the  right 
to  use  such  force  as  is  necessary  to  eject  a  trespasser,  who 
interferes  with  its  servants,  or  other  persons  who  are 
there,  by  its  consent,  or  for  business.*^ 

§357.  As  to  the  right  of  those  who  frequent  hotels. 

"Guests  of  a  hotel  and  persons  entering  with  the  intention 
of  becoming  such,  cannot  be  lawfully  prevented  from 
going  in,  or  be  put  out  after  entrance,  provided  they  pay 
charges  and  tender  the  money  necessary  for  that  purpose, 
if  requested  by  the  landlord  unless  they  be  bad  or  sus- 
picious characters,  or  of  vulgar  habits,  or  so  objectionable 
to  the  patrons  of  the  house  on  account  of  the  race  to 
which  they  belong,  that  it  would  injure  the  business  to 
admit  them  to  all  portions  of  the  house,  or  unless  they  at- 
tempt to  take  advantage  of  the  freedom  of  the  hotel  to 
injure  the  landlord's  chances  of  profit,  derived  either 
from  his  hotel,  or  other  business  incident  or  con- 
nected with  the  management,  and  constituting  a  part  of 
the  provisions  for  the  wants  or  pleasure  of  his  patrons. ' ' 
When  persons  objectionable  on  account  of  character  or 
race  enter  a  hotel,  not  as  guests,  but  intent  on  pleasure 
or  profit,  to  be  derived  from  the  inmates  or  guests,  they 

46— Com.  V.  Powers,  7  Met.  600,       Chovin,  7  la.  204;   State  v.  McDon- 
41    Am.   Dec.    465;    State   v.    Steel,       aid,  7  Mo.  App.  510. 
19    Amer.    St.    K«p.    573;    State   v. 


308  Criminal  Law 

are  there,  not  by  right  but  under  an  implied  license  which 
the  landlord  may  revoke  at  any  time,  because,  barring 
the  limitations  imposed  by  holding  out  inducements  to 
the  public  to  seek  accommodations  at  his  inn,  the  pro- 
prietor occupies  it  as  his  home,  from  which  he  may  expel 
all  who  have  not  acquired  rights  growing  out  of  the  rela- 
tion of  guests,  and  may  drive  out  all  who,  by  their  bad 
conduct,  create  a  nuisance  and  prove  an  annoyance  to  his 
patrons. ' '  ^"^ 

§  358.  What  extent  of  force  and  violence  may  the  pro- 
prietor use.  The  patrons  of  a  hotel,  when  they  have 
complied  with  all  the  needful  rules  and  regulations  of  the 
business  and  have  paid  the  charges  when  required  by  the 
landlord  to  do  so  are  freed  from  annoyance  and  interrup- 
tion and  the  landlord  may  eject  any  one  of  his  guests  who 
proves  an  annoyance  to  others  therein,  and  may  legally 
use  force  enough  to  eject  him  from  the  premises.  It  seems 
that  a  proprietor  of  an  inn  may  conduct  the  business  in 
any  legal  manner,  and  if  he  engage  in  any  business  in 
connection  w^ith  it  for  his  profit  or  the  comfort  of  his 
patrons,  he  may  also  legally  prohibit  other  persons  fol- 
lowing the  same  business,  to  enter  upon  his  premises,  and 
if  in  ejecting  them  he  use  force  enough  to  eject  them  and 
no  more,  he  is  not  guilty  of  an  assault.  The  right  of 
ejecting  is  dependent  upon  the  fact  that  the  proprietor 
request  the  offending  party  to  leave,  and  he  does  not,  then 
he  may  use  the  force  herein  spoken  about." 

47— state  v.  Steele,  106  N.  C.  766,  Dec.  449-58;   Atwater  v.  Sawyer,  76 

19  Am.  St.  Rep.  580.     Cases  cited.  Me.  538,  49  Am.  Eep.  634;  Landri- 

Com.  V.   Mithcl.   1   Phila.   63;    Com.  gan  v.    State,   31   Ark.   50,   25   Am. 

V.  Powers,  7  Met.  600;  Pinkerton  v.  Rep  547;   Summitt  v.  State,  8  Lea. 

Woodward,    91    Am.    Dec.    660,    33  413,  41  Am.  Rep.  637;  Cole  v.  Ronen, 

Col.   557;    Old   Colony    R.    R.    C.    v.  88  Mich.  219,  50  N,  W.  138,  13  L. 

Tripp,    147    Mass.    35,    9    Am.    St.  R.  A.  848;  State  v.  Steel,  106  N.  C. 

Rep.  661,  17  N.  E.  89.  7('.(i,  11    S.  E.  478,  10  A.  S.  R.  573, 

48— State  V.  Steele,  106  N.  C.  766,  8   L.   R.   A.   516;    Hickey  v.   U.   S., 

19   Am.   St.   Rep.   573;    see   Cliite   v.  168  Fed.   536,   93   C.   C   A.   516.   22 

Wit'Kins,    14    .lohnson    175,    7    Am.  L.  R.  A.   (N.  S.)   728. 


I 


Assaults  and  Battery  309 

§  359.  Of  the  relation  sustained  towards  others.  School 
masters  and  others  similarly  situated  are  permitted 
to  moderately  chastise  their  pupils  and  those  im- 
mediately under  their  charge.  School  masters  may 
legally  make  rules  for  the  control  of  their  profession, 
and  those  who  place  themselves  under  their  in- 
structions are  required  to  conform  to  such  rules  and  reg- 
ulations, and  for  the  violation  of  these  rules  the  master 
may  inflict  moderate  punishment.*^  And  so  the  master  has 
the  right  to  moderately  chastise  the  apprentice,  and  the 
parent  the  child;  but  those  who  occupy  the  relation  of 
employer  and  employee  the  rule  does  not  apply.^"  Those 
who  occupy  the  relation  of  loco  parentis,  may  also  moder- 
ately chastise  the  ward.^^  So  sailors  who  are  in  the  em- 
ploy of  a  ship  are  required  to  comply  with  all  the  orders 
and  commands  of  the  master  and  those  of  his  superiors, 
and  corporeal  punishment  for  the  failure  to  perform  as 
directed  is  not  an  assault,  and  the  sailor  has  no  right  to 
complain.  Cruel  and  excessive  punishment  in  none  of 
these  instances  is  permitted,  and  where  the  punishment 
is  beyond  the  necessity  of  the  case,  the  ship's  master  is 
accountable  to  the  law  for  the  wrongful  assault.  In  the 
case  of  parents  and  those  standing  in  the  place  of  the 
parent,  the  school-master  and  the  like,  the  punishment  is 
confined  to  a  mild  and  gentle  chastisement  and  beyond 
this,  they  become  responsible  for  the  assault. 

§  360.  The  doctrine  where  special  duty  rests  upon  us. 
Where  there  is  a  special  duty  resting  upon  us  we  are  in 

49— Dunn    v.    Miller,    135    N.    C.  Vt.  114;   State  v.  Williams,  27  Vt. 

204,  47  S.  E.  421,  102  A.  S.  E.  528,  755;    State   v.   Misner,    50   la.    145, 

65   L.  R.   A.   800;    Damemhoffer  v.  32  Am.  Rep.  128;  Vannactor  v.  State 

State,  69  Ind.  295,  35  Am.  Rep.  216;  113   Ind.   276,   3   Am.  St.   Rep.   645. 
Boyd  V.  State,   88  Ala.   169,   7  So.  50—1    East.    P.    C.    261;    Rex   v. 

268,   16  A.   S.  R.   820;   Van  Vocter  Tritin,   11   Cox  0.   C.  402. 
V.  State,  113  Ind.  276,  15  N.  E.  341,  51— State  v.  Alvord,  68  N.  C.  332; 

3  A.  S.  R.  645;  Doralin  v.  State,  14  State  v.  Snowden,  12  Tex.  App.  105, 

Tex.  App.   61;    Standfield  v.   State,  42  Amer.  Rep,  667;  Garman  v.  State, 

43  Tex.  167;   Lander  v.  Seaver,  32  42  Tex.  245. 


310  Ceimhst.^l  Law 

law  held  responsible  for  the  neglect  of  it,  and  any  one 
injured  by  reason  thereof,  has  his  action  in  damages 
therefor.  Societj"  also  has  the  right  to  punish  the  wilful 
neglect  of  the  duty  imposed.  There  is  a  common  duty 
that  the  parent  protect  and  care  for  his  offspring.  It  is 
also  a  law  of  our  social  existence  to  protect  our  fellow 
when,  by  no  fault  of  his,  he  is  unable  to  protect  himself. 
In  response  to  this  principle  it  has  been  held  that  to  ex- 
pose a  child  to  the  inclemency  of  the  weather  is  sufficient 
to  constitute  criminal  guilt.  So,  to  expose  a  lunatic  to 
danger  with  his  consent  is  criminal.  He  is  incapable  of 
granting  consent.  There  are  some  other  instances,  as 
where  the  husband  assaults  another  in  the  protection  of 
his  wife  from  unlawful  violence;  the  father  in  the  protec- 
tion of  his  son;  the  son  the  father;  the  brother  the  brother 
or  the  sister;  the  sister  the  sister;  the  master  the  servanf , 
and  the  servant  the  master.  Justification  is  only  recog- 
nized where  the  parties  occupy  the  relation  to  each  otlier 
as  herein  named,  and  then  only  to  protect  them  from  the 
assaults  of  others.^'*  A  failure  to  extend  the  protection 
appears  not  to  be  a  crime  except  perhaps  in  the  event  of 
the  inability  of  such  persons  to  protect  themselves.  This 
however  is  dependent  upon  the  circumstances,  the  age, 
the  physical  condition,  and  the  like.  So,  it  is  a  duty 
that  one  defend  himself,  and  his  legal  right  that  he  do  so. 
He  may  defend  his  habitation,  his  family  and  his  servants 
against  the  assaults  of  another. 

§  361.  Acts  of  the  assailant  viewed  from  the  standpoint 
of  the  assailed.  Where  one  makes  an  attack  upon  an- 
otliei",  Jic  will  not  be  excused  of  responsibility,  notwith- 
standing, he  is  so  situated  that  he  cannot  connnit  a  bat- 
tery, by  some  force  or  circumstance  arising  at  the  time, 

52— Stntc  V.  Yoiin(j,  52  Ore.  227,  CftO,    19   Am.  Cas.  571;    Drysdale  v. 

96    Pac.    1067,    i:i2    A.    S.    R.    689,  State,  8.'$  Ga.  744,  10  S.  E.  358,  20 

18   L.   R.   A.    (N.   S.)    688;    Fink  v.  A.  S.  R.  .'MO,  6  L.  1?.  A.  124. 
ThomaH,   60   W.   Va.   187,   66   S.    E. 


Assaults  and  Battery  311 

if  at  the  time  the  assailed  believes  himself  to  be  in 
danger  of  receiving  bodily  harm.  If  the  acts  and  the 
accompanying  threats  of  the  assailant  are  such  as  will 
lead  a  person  of  ordinaiy  prudence  to  believe  that  injury 
will  be  inflicted,  if  not  prevented,  by  some  circumstance  or 
the  knowledge  of  the  want  of  the  power  of  the  assailant, 
to  inflict  a  bodily  injury,  is  an  assault,  although  it  may 
aftei-wards  transpire,  that  the  injury  could  not  have  been 
inflicted.  Persons  so  circumstanced  are  not  expected  to 
make  discriminating  calculations  as  to  the  chances  of  es- 
caping, as  is  required  in  the  ordinary  atfairs  of  life,  but 
are  allowed  to  act  upon  the  appearances  of  danger.^^  The 
rule  is  well  settled  that  words  standing  alone  will  not 
justify  an  assault.  Nor  will  words  alone,  however  bad, 
degrading  and  opprobrious  constitute  an  assault.  Threats, 
however,  if  made  in  such  a  manner  as  to  produce  in  the 
mind  of  the  person  to  whom  addressed,  a  well  founded 
belief,  that  the  threat  will  be  executed,  constitutes  the  as- 
sault. If  there  is  any  threatening  gestures  accompanying 
the  language,  creating  a  well  founded  belief  that  injury 
will  be  inflicted,  this  seems  to  constitute  the  assault,  the 
reprehensible  act  the  law  looks  to;  this  is  dependent,  how^- 
ever,  upon  the  present  ability  of  the  assailant  to  commit 
the  battery.^* 

OF  AGGRAVATED  ASSAULTS 

§  362.  Division  of  assaults  under  statutes.  Offenses  of 
the  nature  of  injuries  to  the  person  under  the  grade  of 
felony  were  at  the  common  law,  misdemeanors,  and  the 

53 — Clampett  v.  State,  9  Tex.  App.  54 — Selferdge  case  Hor.  &  Thorn. 

27;    Young   v.    Com.,    6    Bush    312;  Cr.   Defenses   1;    1   Hawk   P.   C.   1 

Shorter   v.    People   H.    Or.   &    Thop  Simms   v.  State,   9   Tex.   App.   586 

S-Defense  193;  United  States  v.  Wil-  Bright  v.   State,   10   Tex.  App.   68 

barger,    3    Wood   515;    Campbell    v.  Wilson  v.  State,  18  Tex.  App.  156 

People,  16  111.  17,  61  Am.  Dec.  49;  32  N.  Y.  525-532;   Warren  v.  State, 

Newcomb    v.    State,    37    Miss.    383;  33  Tex.  517;   People  v.  Barnsby,  32 

State   V.   Bright,   10   Tex.   App.   68;  N.  Y.  525-532. 
State  V.  Sheppard,  10  la.  126;  Com. 
V.  White,  110  Mass.  407. 


312  Criminal  Law 

puiiishment  inflicted  was  in  propoi*tion  to  the  gravity  of 
the  injury  inflicted,  dependent  upon  the  evidence,  and  the 
discretion  of  the  court  trying  the  case.  It  appears  that 
at  the  common  law  there  was  no  such  specific  legal  term 
as  ''aggravated  assault"  upon  the  person,  but  assault  be- 
low murder  and  manslaughter,  was  comprehended  under 
the  general  temi  ''assault."  The  attempt  to  commit  the 
graver  crimes  of  murder  and  mayhem,  falling  short  of 
the  consummated  crime  intended,  may  be  taken  in  a  gen- 
eral way  to  comprehend,  what  is  intended  when  we  use 
the  term  "aggravated  assault."  But  under  our  statutes 
many  acts  are  taken  to  be  of  an  aggravated  nature,  de- 
pendent upon  the  place  where  committed  as  well  as  the 
circumstances,  and  the  means  of  infliction,  and  in  some 
instances  the  persons  upon  whom  the  assault  is  made. 
Of  this  character  of  assaults  is  that  which  is  made  upon 
a  United  States  officer  while  in  the  discharge  of  his  oflicial 
duties ;  where  the  statutes  is  that  an  assault  made  upon  a 
person  in  a  meeting  of  any  character  where  persons  met 
for  religious  worship,  instruction,  or  schoolhouses,  and 
other  places  of  business  and  amusement;  where  an  assault 
of  a  simple  nature  is  made  by  an  adult  male  person  upon 
a  woman;  or  by  an  adult  male  or  female  upon  a  child  of 
tender  age  and  of  weak  physical  ability,  is  an  aggravated 
assault.  Where  an  assault  is  made  by  a  person  of  the  ordi- 
naiy  build,  capacity  and  strength,  upon  a  weakling,  or 
aged  and  decrepit  persons;  or  where  the  person  assaulting 
is  greatly  superior  in  strength  to  the  person  assailed; 
where  the  assault  is  made  in  a  private  family;  in  courts 
of  justice;  and  of  many  others  of  like  nature  and 
character. 

§  363.  Preventing-  unlawful  offenses.  It  is  a  well  set- 
tl('(l  principle  tiiat  a  tliird  jx-i'soii,  and  tliis  regardless  of 
the  rclalioiisliip  by  l)l()od  or  consaiiguiiiily,  may  iiitor- 
fcro  for  the  ])iij"p()S('  of  preventing  a.  felony  coiiiinillcd 
npoji  aiiolJicr,  and  i1   also  appears  Hint   lliis  i-iglit   is  ex- 


Assaults  and  Battery  313 

tended  to  any  private  citizen  to  stop  or  interfere  in  any 
riot  or  disturbance  of  the  peace.  The  interference  in  the 
broils  of  others  by  a  third  person  not  connected  with  it 
must  first  announce  his  intention  and  the  object  of  his  in- 
terference, and  it  is  his  duty  to  request  the  combatants  to 
desist,  and  then  if  they  do  not  he  is  permitted  as  a  con- 
servator of  the  peace  to  use  force  if  necessary  to  compel 
it."  A  full  discussion  of  this  principle  would  require 
allusion  to  the  doctrine  of  self  defense,  and  a  further  dis- 
cussion may  be  found  in  our  chapter  "homicide." 

55 — Com.     V.     Cooley,     6     Gray       Meager    137,    26    Amer.    Dec.    217; 
^Mass.)    350;    Connor    v.    State,    4      State  v.  Totman,  80  Mo.  125. 


CHAPTER  XVIII 


ATTEMPTS 


§  36-1.  Definition.  §  373. 

§  365.  Preparatory  acts. 

§  366.  Solicitations.  §  374. 

§  367.  Solicitations  when  an  attempt.       §  375. 
§  368.  Misdemeanors  at  common  law. 
§  369.  No  attempt  in  some  crimes.         §  376. 
§  370.  As  to  perjury. 

§  370a.  As  to  routs,  riots,  etc.  §  377. 

§  371.  As  to  assaults. 

§  372.  Doctrine  of  attempts  applied       §  378. 
to  misdemeanors. 


Solicitations,   in   some  crimes 

attempts. 
Extent   of   the   intent. 
The  intent   and  an  overt  act 

must   concur. 
Voluntary     abandonment     of 

intent. 
Where  the  crime  is  impossible 

of  conunission. 
The  extent  of  the  act. 


§  364.  Definition.  An  attempt  to  commit  a  crime  is  a 
substantive  offense.  It  is  understood  to  be  an  act  coupled 
with  a  criminal  intent  to  commit  some  specific  criminal  of- 
fense, but  which  by  reason  of  some  unavoidable  and  un- 
locked for  circumstance  prevents  the  consummation  of 
the  offense  intended,  which  in  the  ordinaiy  course  of 
events  would  result  in  the  perpetration  of  the  same.  There 
must  be  a  criminal  intent,  coupled  with  a  deliberate  force- 
ful act,  directed  towards  the  commission  of  the  crime  in- 
tended, but  which  act  falls  short  of  its  purpose.^    The 


1 — In  the  case  of  Kelly  v.  Com., 
1  Gratt.  484.  "It  was  held  that  an 
act  was  necessary  to  constitute  an 
attempt.  That  an  attempt  to  com- 
mit a  rape,  was  an  ineffectual  offer 
by  force,  with  intent  to  have  carn:il 
knowlodKC  If  such  act,  with  sucli 
intent,  were  not  proved,  the  accuscil 
louhl  not  lie  convicted  of  an  at- 
tempt. Tliat  it  sliould  l)e  an  actual 
and  not  a  constructive  attempl.  An 
atfompt  to  commit  furniCniition  was 
not   cnougli. 


In  llio  case  of  Stiite  v.  Swails,  8 
Ind.  524.  It  WHS  held  that  one  fir- 
ing a  gun  at  another,  witli  any  thing 
but  powder  and  cotton  balls  or  wads, 
nt  a  distnnco  of  forty  feet,  it  ap- 
]ic:iriii;^'  Ili:i1  the  life  of  sudi  person 
iKil  liciiij,'  at  all  iMidangercd,  or  put 
ill  jeopardy  by  tlie  act,  in  conso- 
(lucnce  of  the  manner  in  which  the 
gun  was  loaded,  could  not  be  con- 
victed, altliougli  lie  might  have 
thouglit  tlie  gun  was  loaded  with 
powder  ami  le.iileii  lialls,  and  tlioiigli 

u 


Attempts 


315 


mere  intent  to  commit  a  crime,  standing  alone,  is  not 
criminal,  for  the  law  in  no  case  undertakes  to  punish  for 
harboring  evil,  malicious  or  revengeful  motives.^  In  a 
moral  sense,  no  doubt,  it  is  wrong  to  harbor  an  intent  to 


he  may  have  intended  to  murder. 
The  exact  language  of  the  court  is: 
"That  Swails  in  this  case  had  a 
felonious  intent  cannot  l)e  doubted. 
But  he  lacked  the  ability  and  the 
means  of  carrying  his  intent  into 
effect.  To  constitute  an  assault  the 
intent  and  the  present  ability,  to 
execute  must  be  conjoined.  Had  the 
gun  been  loaded  with  balls  or  any 
other  destructive  missiles,  the  of- 
fense charged  would  have  been  com- 
plete. ' ' 

In  the  case  of  Hamilton  v.  State, 
10  Am.  Eej).  27;  the  court  says: 
' '  That  whenever  the  law  makes  one 
step  toward  the  commission  of  a 
crime,  with  the  intent  of  purpose 
of  accomplishing  it,  criminal,  a  per- 
son taking  that  step,  and  he  himself 
capable  of  doing  every  act  on'  his 
part  of  accomplishing  that  object, 
cannot  protect  himself  from  respon- 
sibility by  showing,  that  by  reason 
of  some  fact  unknown  to  him  at  the 
time  of  his  criminal  attempt,  it  could 
not  be  carried  out. ' '  See,  also,  Com. 
v.  Jacob,  9  Allen  274. 

2 — In  the  case  Monroe  v.  People, 
123  N.  Y.  254,  the  court  says:  "In 
this  country  the  courts  have  uni- 
formly refused  to  follow  the  cases 
of  Eeg  V.  McPherson  Deers  &  B. 
197,  and  Reg  v.  Collins,  1  Leigh  &  C. 
471,  and  have  adopted  the  more  logi- 
cal rational  rule,  that  an  attempt  to 
commit  a  crime  may  be  effectual 
though,  for  some  reason  undiscovor- 
able  by  tlie  intending  perpetrator, 
the  crime  under  existing  circum- 
stances may  be  impossible  of  accom- 
plishment.      It    would    seem    to    be 


quite  absurd  to  hold  that  an  attempt 
to  steal  property  from  a  person 
could  not  be  predicated  of  a  case 
wlicre  that  person  had  secretly  and 
suddenly  removed  from  one  pocket 
to  anotlicr  and  thus  frustrates  the 
attenijjt  to  steal  the  property,  or 
had  so  guarded  his  property,  that  it 
could  not  be  detached  from  his  per- 
son. An  attempt  is  made,  when  an 
opportunity  occurs  and  the  intending 
perpetrator  has  done  some  act  to  ac- 
complish his  purpose,  although  he  is 
baifled  by  an  unexpected  obstacle 
or  condition.  Many  efforts  have 
been  made  to  reach  the  north  pole, 
but  none  have  succeeded.  Many 
have  grappled  Avith  the  theory  of 
perpetual  motion  without  success, 
but  it  can't  be  said,  in  either  case, 
that  the  attempt  was  not  made." 
See  following  cases  to  the  same  ef- 
fect. Gray  v.  State,  63  Ala.  66; 
State  v.  Wilson,  30  Conn.  500;  Cun- 
ningham V.  State,  49  Miss.  685; 
State  V.  Jordon,  75  N.  C.  27 ;  State 
V.  Calvin,  9  N.  C.  717;  Smith  v. 
Com.,  54  Pa.  St.  209;  Hicks  v. 
Com.,  86  Va.  223;  State  v.  Bailer, 
26  W.  Va.  90.  "The  act  must 
reach  far  enough  toward  the  accom- 
plishment of  the  desired  result  to 
amount  to  the  commencement  of 
the  consummation.  Graham  v.  Peo- 
ple, 181  111.  477,  55  N.  E.  170,  47 
L.  R.  A.  731;  State  v.  Mitchell,  170 
Mo.  633,  71  S.  W.  175,  94  A.  S.  R. 
763;  State  v.  Taylor,  47  Ore.  455, 
84  Pae,  82,  8  Ann.  Cas.  627,  4  L.  E. 
A.  (N.  S.)  417;  Hicks  v.  Conn., 
86  Va.  223,  9  S.  E.  1024,  19  A.  S. 
R.  891. 


316  Criminal  Law 

commit  a  crime,  but  as  such  the  law  can  have  nothing  to 
do.  It  is  too  speculative  for  judicial  tribunals  to  take 
notice.  It  would  require  the  omnipotence  and  the  pro- 
fundity of  Deity  to  fathom  the  bosom  of  every  person 
suspected  of  entertaining  an  intent  to  commit  a  crime. 

§  365.  Preparatory  acts.  Mere  preparatory  acts,  are 
not  enough,  in  contemplation  of  law,  to  constitute  the 
crime  of  attempt,  although  the  intent  is  present  to  com- 
mit the  crime.  If  the  preparation  for  committing  the 
crime  is  followed  by  an  act  on  the  part  of  the  accused 
which  it  would  be  necessaiy  to  do,  in  the  event  the  crime 
was  consummated,  this  is  sufficient  to  convict.^  There 
is  a  wide  difference  between  the  preparation  to  commit 
a  crime  and  the  attempt  to  commit  it.  Thus  preparing 
a  weapon  to  make  a  murderous  assault  upon  another  is 
no  part  of  an  attempt  to  commit  murder.  Nor  would  the 
preparation  to  commit  burglary  by  procuring  tools,  in- 
specting locks  or  bolts.  So  long  as  there  is  no  act  or 
effort  to  put  the  acts  of  preparation  in  motion  an  inde- 
pendent overt  act,  toward  the  commission  of  the  crime 
intended  to  be  committed,  there  can  be  no  attempt.* 

§  366.  Solicitations.  A  solicitation  to  commit  a  crime 
is  at  common  law  a  substantive  offense  and  was  indict- 
able, and  technically  regarded  as  an  attempt.^     There 

3_People  V.  Murrey,  14  Cal.  159;  Ga.  576,  42  S.  E.  755,  59  L.  R.  A. 

People  V.  Stiles,  75  Cal.  70;    Hicks  598;  State  v.  Hurley,  79  Vt.  28,  64 

V.  Com.,  86  Va.  23;  U.  S.  v.  Steph-  Atl.  78,  118  A.  S.  R.  934,  6  L.  R. 

ens,  8  Saw.  116.  A.     804;     People     v.     Young,     122 

4— In  the  case  of  People  v.  Mur-  Mich.  292,  81  N.  W.  114,  47  L.  R. 

rey,    14    Cal.    159,    the   court   says:  A.   108;    Jackson  v.   State,  91    Ala. 

"That    the    preparation    consists    in  r,5,  8  So.  773,  24  A.  S.  R.  860;    Ex 

devisinpr  or  arrant,nnj,'  the  means  or  parte  Smith,  135  Mo.  223,  36  S.  W. 

measures  necessary   for  the  commis-  ti28,  58  A.  S.  R.  505;   People  v.  Sul 

sion    of    the    offense;     the    attempt  ivan,  173  N.  Y.  122,  65  N.   E.  989, 

is  the  direct  movement  towards  the  93  A.  S.  R.  582,  63  L.  R.  A.  353. 
rommis-sion    after    the    preparations  5 — State  v.  Avery,  7  Conn.  266; 

arc    made."      Graves   v.    State,    116  People    v.    Rush,    4    Hill    ]33;    Rex 


Attempts  317 

is,  however,  good  authority  to  the  effect  that  it  is  not  an 
attempt.  It  appears  to  us  that  this  line  of  authority,  is 
supported  by  the  best  and  the  soundest  reason.  As  we 
have  already  stated  an  attempt  to  commit  a  crime,  con- 
sists in  an  overt  act  accompanied  with  a  criminal  intent, 
which  if  not  prevented,  by  some  unlooked  for,  external 
circumstance,  will  in  the  course  of  ordinary  events  result 
in  the  completed  crime.  An  attempt  then,  is  an  endeavor, 
by  one 's  personal  efforts  to  commit  a  deliberate  crime.  A 
solicitation  is  only  a  request  or  an  attempt  to  procure  an- 
other to  commit  a  crime.  We  have  seen  in  a  preceding 
page  that  preparatory  acts,  merely,  are  not  sufficient  to 
constitute  an  attempt,  a  fortiori,  a  solicitation  could  not 
be.« 

§  367.  Solicitation  when  not  an  attempt.  We  deduce 
this  rule,  that  where  the  solicitation,  is  so  far  removed 
from  the  fact  of  the  crime,  about  which  the  solicitation 
is  directed,  that  it  is  only  an  act  of  preparation,  then  the 
affirmative  act  evidenced  by  the  request,  is  not  an  at- 
tempt.'   Thus  where  A  suggests  to  B,  that  if  he  will  kill  C 

V.  Higgins,  2  East  5;  Eex.  v.  food,  drink  or  medicine,  or  other- 
Phillips,  6  East  464 ;  Roscoe  's  Or.  wise  poison  any  spring,  well  or  reser- 
Ev.   311.  voir   of   water,    with    intent   to    kill 

6 — In  the  case  of  Smith  v.  Com.,  or  injure  another  person,  etc.,"  held 

54    Pa.    St.    209.      The    proposition  that  where  A   and  P  had  procured 

is   denied   that   a   solicitation   is   an  poison,    and   had   given   it   into   the 

attempt  to  commit  the  crime  solic-  hands  of  L,  under  promise  to  pay 

ited,    Hicks    v.    Com.,    86    Va.    223.  her  liberally  for  administering  it  to 

See  Hamilton  v.  State,  36  Ind.  280;  A  in  his  coffee,  that  it  was  merely 

Uhl  V.  Com.,  6  Gratt.  706;  Kelly  v.  a   solicitation   to   commit   the   crime 

Com.,   1   Gratt.   15;    Cox   v.   People,  and   that   it   could   not   be   punished 

82    111.    191;    Stabler    v.    Com.,    40  as  an  attempt  to  administer  the  poi- 

Am.  Rep.  653;  Id.  95  Pa.  St.  318.  son.        And      among      many      other 

7 — Hicks  V.  Com.,  96  Va.  223.    In  things,   says   that   ' '  An  attempt   to 

a  prosecution  for  the  attempt  to  ad-  commit  a  crime  is  composed  of  two 

minister  poison  by  soliciting  another  elements.     1.  The  intent  to  commit 

to    administer    it,    the    court    after  it.    2.  A  direct  ineffectual  act  done 

reading  the  statute:  "If  any  person  towards  the  commission.     Therefore, 

administer  or  attempt  to  administer  the    act    must    reach    far    enough, 

any  poison,   or  destructive  thing  in  toward  the  commission  of  the  desired 


318  Criminal  Law 

he  will  pay  him  for  it,  this  is  clearly  not  an  attempt,  on 
the  part  of  A  to  kill  C,  but  if  the  proposition  of  A  to  B  is 
accepted  by  B,  who  kills  C,  A  becomes  guilty  of  the  con- 
summated crime,  either  as  an  accessory  to  the  crime  or  as 
principal;  by  the  common  law  it  would  amount  to 
accessory  before  the  fact  If,  however,  A's  proposition 
is  accepted,  but  for  some  unlooked  for  intervening 
cause,  B  fails  to  kill  but  merely  make  an  assault 
upon  C,  upon  principle  A  would  be  guilty  of  the  assault 
or  the  attempt,  as  principal,  for  the  reason,  that 
at  common  law,  the  assault  or  the  attempt  being  a 
misdemeanor,  all  persons  concerned  in  the  commission  of 
the  offense  are  guilty  alike.  In  neither  case  is  A  guilty  of 
the  attempt  because,  he  solicited  B  to  commit  the  crime 
of  murder,  but  in  the  fonner  he  is  guilty  of  accessoiy  be- 
fore the  fact,  because  he  made  a  proposition  to  B  to  kill 
C,  and  which  was  accepted  by  B,  and  it  thereby  became 
an  agreement — a  conspiracy — upon  the  part  of  A  and  B 
to  kill  C,  and  the  same  being  accomplished  by  B,  in  the 
absence  of  A,  made  A  an  accessory  before  the  fact;  In  the 
latter  B  fails  to  accomplish  the  crime  intended  to  be  com- 
mitted, but  made  an  alKrmative  effort  to  do  so  and  failed; 
A  is  guilty  equally  with  B  not  because  he  suggested  to  B 
to  commit  the  crime,  but  because  B  undertook  to  commit 
the  crime  under  the  agreement  with  A  to  do  it.   But  sup- 

rcsult  as  to  amount  to  the  commence-  dc-r,  or  the  purchase  of  poison,  with 
mcnt  of  the  consummation.  It  must  the  same  intent,  docs  not  constitute 
not  be  merely  preparatory.  In  an  indictable  offense,  because  the 
other  words,  while  it  need  not  be  the  act  in  either  case  is  considered  in 
last  proximate  act  to  the  consum-  the  nature  of  preliminary  jirepara- 
mafion  of  the  offense  attempted  to  tions,  and  as  not  advancinjj  the  con- 
be  perpetrated  it  must  approach  suf-  duct  of  the  accused,  beyond  the 
ficiently  near  to  stand  citlicr  as  first  si)here,  of  mere  intent."  Aii])rovos 
or  some  subsequent  step  in  tlic  <li-  Uhl  v.  Com.,  6  Gratt.  706;  Stabler 
rect  movement  toward  the  commis-  v.  Com.,  95  Pa.  St.,  318;  also  holds 
sion  of  the  ofTense,  after  the  prep-  with  tlic  case  above  and  it  is  sjiid 
tirations  are  made.  Thus  it  has  that  a  solicitation  is  too  far  removed 
often  been  held  under  statutes  simi-  from  (he  main  act  to  constitute  an 
lar  to  ours  that  the  purchase  of  a  attempt  to  coiiutiit  a  crime. 
gun,  with  the  intent  to  commit  mur- 


Attempts  319 

pose  A's  proposition  was  refused  by  B,  we  can  not  believe 
that  the  common  law  authorizes  A's  indictment,  for  the 
attempted  crime.  It  appears,  that  in  order  to  meet,  and 
punish  the  acts  of  solicitation  in  certain  crimes  of  great 
gravity,  the  statute  24  and  25  Vict,  was  enacted,  provid- 
ing that  ''To  counsel,  procure  or  command,  any  other 
person  to  commit  a  felony,  was  itself,  a  felony."  So 
also  chapter  100,  of  the  same  act,  is  found  a  similar 
provision  and  in  reference  to  soliciting,  encouraging,  per- 
suading, or  endeavoring  to  persuade  another  to  murder, 
etc.,  making  the  same  a  crime.  The  modern  doctrine 
in  America,  is  that  mere  solicitation  is  not  an  attempt, 
and  that  too,  under  statutes  substantially  as  the  English. 

§  368.  Misdemeanors  at  common  law.  Aider  and  abet- 
tor and  those  who  incite  and  instigate  the  attempt,  where 
they  would  be  guilty  at  all,  will  be  punished,  as  prin- 
cipals, for  the  reason  that  all  attempts  to  commit  a  crime 
are  misdemeanors,  at  common  law.^° 

§369.  No  attempts  in  some  crimes.  There  are  some 
crimes  from  their  nature,  of  which  an  attempt  to  com- 
mit cannot  be  predicated.  Such  as  the  crime  of  con- 
spiracy, a  common  law  crime.  A  conspiracy,  is  defined 
to  be  any  agreement  of  two  or  more  persons,  by  con- 
certed action,  to  accomplish,  some  criminal,  or  unlawful 
purpose,  or  to  accomplish  some  lawful  purpose  by  unlaw- 
ful means.  The  gist  of  this  offense  is  the  agreement  and 
combination."  The  offense  is  complete  when  the  agree- 
ment to  do  some  unlawful  thing,  or  the  agreement  to  do 

10 — state  V.  Wilson,  30  Conn.  500;  The  offense  has  been  held  to  consist 

Uhl  V.   Com.,   6  Gratt.   706;    Eex   v.  in   the   conspiracy,   and   not    in    the 

Clayton,   1   Car.  &  K.   128;    People  acts,  committed  in  carrying  it  into 

V,  Woodard,  45  Cal.  293,  effect.      The    offense    is    committed 

11 — * '  The  gist  of  the  offense  of  when    the    intention    to    conspire    is 

conspiracy   is  the   unlawful  conspir-  added   to   the   actual   agreement.     4 

ing,  to  do  any  unlawful  act,  or  to  do  Eng.  &  Amer.  Encly.  L.  588. 
a  lawful  act,  with  unlawful  means. 


320  Crimhstal  Law 

some  lawful  thing  unlawfully,  is  entered  into  by  two  or 
more  persons. ^^  This  is  a  punishment  for  harboring  an 
intent  that  is  regarded  as  unlawful.  It  is  not  a  crime 
when  such  unlawful  intent  is  entertained  by  a  single 
person,  however  wicked,  evil,  or  malicious  it  may  be,  but 
become  criminal  only  when  an  agreement  is  entered  into 
by  two  or  more  persons,  to  do  the  wrongful  act,  jointly, 
all  aiding  in  the  accomplishment  of  it.  The  solicitation, 
or  the  endeavor  to  induce  others  to  enter  into  an  agree- 
ment to  do  an  unlawful  act,  could  only  constitute  the  at- 
tempt, and  as  we  have  seen  the  solicitation  to  commit  a 
crime  is  not  indictable,  hence  it  will  follow  that  there  can- 
not be  such  a  thing  in  the  criminal  law,  as  an  attempt  to 
commit  the  crime  of  conspiracy. 

§370.  As  to  perjury.  Perjuiy  seems  also  to  be  an- 
other offense  of  the  same  character.  The  procuring  an- 
other to  commit  perjuiy  is  a  substantive  and  independent 
common  law  offense;  we  refer  to  Subornation  of  Perjury. 
It  will  be  noted  that  this  offense  is  not  complete,  till  the 
perjury  is  actually  committed.  The  law  does  not  punish 
the  solicitation  to  commit  the  crime  but,  it  is  the  procur- 
ing, the  inciting  to  the  perjuiy.  There  appears  to  be  some 
authority  however  for  the  statement  that  the  mere  solici- 
tation to  commit  the  perjuiy  is  a  common  law  offense  and 
as  such  could  be  punished  as  an  attempt.^*  As  to  the  per- 
jurer, himself,  upon  the  general  principles  of  the  criminal 
law,  could  not  be  held  liable  for  the  mere  intent  to  commit 
the  crime;  there  is  some  justification  for  the  statement, 
that  if  one  having  the  deliberate  intention  to  commit  per- 
jury in  a  given  case,  voluntarily  presents  himself,  before 
a  court  of  justice,  to  testify  as  a  witness  to  a  material 

12 — The  offense  of  conspirinp   is  of  by  the  conspirators. "    O'Conncll 

rendered  complete  by  the  bare  en-  v.   R«g.,   11  C.  &  F.   155;    Fisher's 

gagemcnt  and  association  of  two  or  Digst.  Cr.  Law,  121. 
more  pfTsons  fo  break  the  law,  with-  l.'l — 1   Hawk.  P.  C.  4.'15. 

out  any  art  done  in  pursuance  there- 


Attempts  321 

point  at  issue,  and  is  not  granted  the  opportunity  to  do  so 
would  be,  guilty  of  the  attempt.  Our  investigation  has 
not  lead  us  to  any  adjudicated  case,  and  we  believe  that 
the  act  is  not  sufficiently  proximate  to  constitute  the 
crime.  At  least  it  would  not  be  as  long  as  the  party  kept 
his  intention  to  himself. 

§  370a.  As  to  routs,  riots,  etc.  Riot,  rout,  and  unlaw- 
ful assemblies,  are,  such  in  constituent  elements,  that  it  is 
impossible  to  commit  the  offense  of  attempt.  The  offense 
of  unlawful  assemblies  is  within  itself,  a  substantive  of- 
fense but  it  is  effected  by  a  meeting  of  three  or  more  per- 
sons for  the  purpose  of  inciting,  to  the  commission  of  some 
other  offense.  A  rout  seems  to  be  the  accompanying  con- 
sequences of  the  unlawful  assembly  and  a  riot  is  the 
culmination  of  both  the  unlawful  Assembly  and  Rout,  into 
a  series  of  unlawful  acts,  participated  in  by  three  or  more 
persons.  As  Justice  Stephens  illustrates;  A,  B  and  C  meet 
at  A's  house  for  the  purpose  of  beating  D,  who  lives  a 
mile  off,  then  they  go  to  D's  house,  and  beat  him.  At 
A's  house  the  meeting  is  an  unlawful  assembly;  on  the 
road  it  is  rout,  and  when  the  attack  is  made  on  D  it  is  riot. 
Each  of  these  offenses  are  independent,  and  might  be 
separately  indicted.^*  These  crimes  have  been  greatly 
modified  by  the  statutes  of  the  several  jurisdictions,  and 
as  common  law  offense  will  rarely  be  resorted  to  cover 
the  character  of  acts,  originally  intended  to  be  reached. 

§  371.  As  to  assaults.  An  attempt  to  commit  an  as- 
sault, as  a  distinct  crime,  has  no  legal  existence.  There 
can  be  no  attempt  to  commit  an  attempt.  Properly  and 
technically  speaking,  an  assault  is  an  attempt  to  commit  a 
battery,  or  to  inflict  some  injury  upon  the  person  of  an- 
other of  any  character  whatever.^^    A  common  assault  is 

14— state  V.  Summer,  2  Speer  599.       v.  People,  81  Am.  Dec.  781,  10  Mich. 
15— Com.  V.  Tolliver,  69  Am.  Dec.       212. 
252.   8   Gray    (Mass.)    397;    Mayher 
C.  L.— 21 


322  Criminal  Law 

an  attempt  to  commit  a  simple  or  a  sliglit  battery.  But 
assaults  to  commit  rape,  murder,  mayhem,  etc.,  are  but  at- 
tempts. Any  act,  which  by  itself,  would  constitute  an 
element  of  the  offense,  of  which  the  attempt  is  predi- 
cated, does  not  constitute  the  attempt  to  commit  the 
offense  but  the  crime  itself.'^®  Under  an  indictment  for  the 
battery,  it  is  competent  to  convict  of  the  assault,  which 
is  the  attempt  to  commit  the  battery.  A  mere  preparation 
to  commit  the  battery  would  not  constitute  the  assault  or 
the  attempt.  Under  the  common  law,  and  it  appears  to  be 
the  general  rule,  except  wiiere  changed  by  the  statute, 
that  any  attempt  to  commit  a  batterj^,  or  any  threatening 
gesture,  accomi^anied  with  present  means,  of  inilicting  ^"^ 
injury^  if  not  prevented,  will  constitute  the  attempt  to 
commit  the  battery. 

§372.  Doctrine  of  attempts  applied  to  misdemeanors. 
The  authorities  are  conflicting  but  the  rule  appears  to  be 
well  established,  that  at  common  law  attempts  were  not 
predicated  upon  misdemeanors.  Especially  is  this  true 
where  the  crime  possessed  only  a  slight  degree  of  evil  or 
malevolence.  The  law  does  not  take  notice  of  small 
things,  and  where  the  character  of  the  crime  is  such, 
that  no  great  or  considerable  injury  can  be  done,  there 
is  no  attempt.  Attempts  to  commit  misdemeanors, 
mala  in  se,  might  in  many  instances  be  indictal)U\^^ 

16 — Com.  V.  McKie.   61    Am.   Doc.  18— Com.  v.  Bii.xter.  4  Mass.  4;U); 

410,    1    Gray    (Mass.)    61;    Rog    v.  I\%x   v.    Higgins,   2    East   5;    Rex   v. 

Meredith,    8   C.    &    P.    589;    Reg    v.  Miivdith,    8    Car,    &    P.    589;    Com. 

Lewis,    1    C.   &   K.   419;    Stevens   v.  v.  Kingherry,  5  Mass.  105;  State  v. 

Meyers,    4    C.    &    P.    349;     Reg    v.  Donovan,   28   Del.    40,  90    Atl.   220, 

Phillips,  3  Cox  C.  C.  225.  Com.  v.  Flagg,  135  Moss.  545;  State 

17 — On  the  question  of  the  ability  v.    Sullivan,    110    Mo.    App.    75,    84 

of    committing    a    battery,    see    the  S.   W.    105;   Com.   v.   Randolph,   146 

following    cases.      State    v.    Swails,  I'a.  82,  23  Atl.  388.  28  A.  S.  R.  782. 
65    Am.    Dec.     772,    85     Ind.    524; 
Allen    V.    State.    73    Am.    Dec.    760. 
28  Ga.  395. 


Attempts  323 

§  373.  Solicitation  in  some  crime  attempts.  There  are 
some  offenses,  the  solicitation  to  commit  which,  will  con- 
stitute the  attempt  to  commit  it.  Thus  it  is  said  that 
sodomy,  adultery,  fornication  and  incest  are  instances 
where  from  the  nature  of  the  elements  of  the  crimes,  the 
solicitation,  will  constitute  the  attempted  crime.  These 
crimes  can  be  committed  (except  the  crime  of  sodomy) 
only  upon  the  solicitation  to  the  other  party  to  the  act,  a 
female,  to  engage  in  the  unlawful  act.  If  in  these  three 
crimes  the  consent  of  the  female  cannot  be  obtained,  and 
sexual  intercourse  is  insisted  on  by  the  man,  it  appears 
that  the  crime  of  attempt  is  complete.  Of  course  if  the 
consent,  is  obtained  by  force,  fraud  or  subterfuge,  to  the 
acts  of  carnal  knowledge,  then  the  party  would  be  guilty 
of  the  crime  of  rape.  Therefore,  we  deduce  the  rule,  that 
where  the  solicitation  constitutes  the  culpable  act,  pre- 
ceding, proximately,  the  consummation  of  the  crime  in 
full,  it  then  becomes  an  attempt  to  commit  that  offense. 
It  is  a  well  settled  proposition,  that  a  bare  solicitation 
to  a  woman  to  allow  carnal  intercourse  is  not  an  assault 
to  commit  a  rape.^^  There  is  a  line  of  decisions,  holding  to 
the  doctrine  that  at  common  law,  solicitation  to  commit 
any  felony  was  an  attempt.  There  is  yet  another  line  of 
cases  both  English  and  American  which  maintain  that  the 
solicitation  is  not  an  attempt.^"  Indeed,  so  far  as  the  de- 
cisions of  the  courts  go,  it  is  a  very  difficult  matter  to  rec- 
oncile the  cases  on  this  question  of  solicitation.  We 
believe  the  rule  w^e  have  adduced  is  more  in  line  with 
the  reason  assigned.  But  it  will  be  left  to  the  courts  in 
the  future,  as  in  the  past,  to  reconcile  the  difference  of 
opinions,  and  for  the  benefit  of  those  who  have  occasion 
to  enquire,  it  will  be  found  that  it  has  been  held  that  it  is 
an  indictable  attempt  to  solicit  another  to  commit  an  as- 

19 — State  V.  Kendall,  73  la.  255,  Thomas  v.  State,  16  Tex.  App.  535; 

5   Am.   St.   R.   677,   34  N.   W.   843;  State  v.  Jarvis,  20  Or.  437,  23  Am. 

Garnett    v.    People,    6    Neb.     274;  St.   Rep.  141,  26  Pac.  302. 

House  V.  State,  9  Tex.  App.  53,  66;  20— Rox  v.  Phillips,  6  East  464. 


324  Criminal  Law 

sault  and  battery,  biibeiy,  adulteiy,  perjuiy,  breach  of 
the  peace,  embezzlement  and  larceny ,^^  to  poison  another, 
and  to  commit  incest. 

THE  INTENT 

§374.  Extent  thereof.  The  intent  must  embrace  a 
particular  crime.  The  purpose  intended  must  include  the 
crime  in  its  entirety,  although  the  act  accompanying  can 
only  embrace,  in  its  results,  a  portion  of  the  thing  in- 
tended to  be  accomplished,  for  if  the  act  covered  all  the 
things  to  be  done,  then  the  crime  itself  would  be  consum- 
mated and  the  attempt  absorbed.  If  the  intent  is  to  at- 
tempt to  commit  the  crime,  and  not  an  intent  to  commit 
the  crime,  there  is  no  attempt.  If  one  having  the  intent  to 
commit  a  particular  crime  and  attempts  to  do  so,  and  by 
the  misdirection  of  a  blow,  or  by  accident,  or  misadven- 
ture, miscalculation  or  through  ignorance  of  facts,  com- 
mits another  crime  not  intended,  and  not  looked  for,  is 
responsible  for  what  he  actually  did.^^  So  if  he  fails  to 
commit  the  crime  he  intended,  he  may  be  held  for  the  at- 
tempt, but  if  he  commits  a  crime  he  did  not  intend,  he's 
held  for  the  consummated  crime,  crime  committed  and 
not  for  the  attempt. 

§  375.  Intent  and  overt  act  must  concur.  The  intent, 
to  commit  a  specific  offense,  is  one  of  the  essential  ele- 
ments of  the  crimes  of  attempt.  It  is  required  that  the 
proof  show  that  the  accused  had  the  requisite  intent,  or 
else  the  conviction  cannot  stand.^^    Two  things  must  con- 

21— Cox    V.    People,    82   111.    191;  v.  State,  52  Am.  Rep.  209,  62  Miss. 

Hicks  V.  Com.,  96  Va.  223;   People  772.     Contra,  see  Simpson  v.  State, 

V.    Gleason,    99    Cal.    359,    33    Pac.  59  Ala.  1;   People  v.  Mize,  80  Cal. 

1111,  37  Am.  St.  Rep.  56.  42;    Wood   v.    Slate,   27    Tex.    App. 

22— State  v.  Oilman,  31  Am.  Rep.  39.'J;  MiiIut  v.  People,  10  Mich.  212, 

2.17,   69   Me.    118;    Perry   v.   People,  81   Am.  Dec.   781;    Hall  v.  State,  9 

14  111.  496;   Vandcriiiark  v.   People,  Fla.  20.!;   Lonficld  v.  State,  .34  Ark. 

47   111.   22;    Dunavvay  v.   People,   51  275. 

Am.  Rep.  686,  110  111.  333;  M.Oclioo  2;!— Rex  v.  Donivan,  4   Cox  C.   C. 


Attempts  325 

cur:  the  intent  and  the  overt  act  toward  the  commission  of 
the  offense.  Both  must  be  present  at  the  same  time  and 
acting  together,  for  the  act  operating  in  the  absence  of  the 
intent,  is  no  crime;  and  vice  versa,  the  existing  intent 
without  an  act  predicated  upon  it.  The  intent  is  father 
to  the  act  and  both  existing  conjointly  produce  the  crime. 
An  act  intentionally  done  is  always  an  evidence  of  the 
purpose  of  the  actor.  But  where  an  offense  requires  a 
particular  or  specific  intent  in  order  to  commit  it,  the 
intent  must  be  proven.  It  is  as  necessary  to  prove  the 
intent  in  such  a  case  as  it  is  to  prove  the  act.  The  court 
said  in  one  case:  *'It  is  well  settled  that  if  the  offense 
consists  of  an  act,  combined  with  a  particular  intent,  it 
is  as  necessary  to  prove  the  intent  as  it  is  to  prove  the  act, 
and  the  intent  must  be  found  by  the  jury,  as  a  matter  of 
fact,  before  a  conviction  can  be  had.  Especially  is  this 
true,  when  the  offense,  consisting  of  the  intent  and  the  act, 
constitutes,  as  in  this  case,  an  attempt,  to  commit  a  higher 
offense  than  that  charged.  And  as  the  particular  intent 
charged  must  be  proved  to  the  satisfaction  of  the  jury 
beyond  a  reasonable  doubt,  no  intent  in  law,  nor  mere 
legal  presumption  differing  from  the  intent  in  fact,  will 
be  allowed  to  supply  the  place  of  the  latter. ' '  ^^ 

§  376.  Voluntary    abandonment    of   the    intent.    The 

abandonment  of  the  intent  to  engage  or  attempt  a  crimi- 
nal enterprise,  is  a  good  defense,  when  prior  to  the  begin- 
ning or  the  taking  a  step  to  commit  the  crime.  If,  how- 
ever, one  should  take  a  step  towards  the  consummation 

425;    Lamb   v.    State,   66   Md.   285;  in    this    ease.      Rex    v.    Thomas,    1 

Burney  v.  State,  21  Tex.  App.  565;  East   P.   C.   417;    Eex   v.   James,   9 

Taylor  v.  State,  22  Tex.  App.  529;  Leach   258;   Bex   v.   Holt,   7   Oar  & 

State    V.    Marshall,    14    Ala.    411;       P.  518;   A  v.  State,  28 

Lewis  V.  State,  35  Ala.  380,  28  Am.  Ma.  693 ;   People  v.  Seott,  6  Mich. 

Dec.   416.  296;    Loza    v.    State,    1    Tex.    App. 

24— Keagan  v.  State,  28  Tex.  App.  488;     Maher    v.    People,    10    Mich. 

227,  19  A.  S.  R.  833.    The  follow-  212. 
ing  case  was  referred  to  by  the  court 


326  Criminal  Law 

of  the  offense,  which  would  be  necessary  to  the  full  perpe- 
tration of  it,  he  will  be  guilty  of  the  attempted  crime  not- 
withstanding he  voluntarily  abandoned  the  intent  and 
refused  to  proceed  further.^^  Thus  if  one  attempt  to  set 
fire  to  a  building,  and  after  he  has  set  fire  to  it,  he  ex- 
tinguish the  flames  and  abandon  his  original  intent,  he  is 
nevertheless  guilty  of  the  attempted  arson. 

§377.  Where  the  crime  is  impossible  of  commission. 

Where  one  proceeds  to  execute  a  criminal  design  and  is 
prevented  from  carrying  it  out,  even  if  the  conditions  then 
present  render  it  impossible  for  him  to  commit  it,  he  is 
guilty.  There  are  numerous  cases  holding  that  an  at- 
tempt to  commit  a  crime  may  be  predicated  upon  condi- 
tions w^hich  render  it  impossible  for  the  crime  to  be 
committed.  Some  of  the  cases  also  hold  that  the  crime 
may  itself  be  committed.  Thus  where  the  accused  was  in- 
dicted for  the  burglarious  entry  into  the  warehouse  of 
another  with  the  intent  to  take  and  cany  awaj^  his  prop- 
erty therein,  it  was  held  that  the  burglarious  entrance  was 
made,  although  there  was  no  property  therein  to  steal. 
Again  as  where  the  pick-pocket  puts  his  hand  in  the 
pocket  of  his  intended  victim  and  finds  no  money.^^  But 
it  has  been  held  that  where  an  assaulting  party  discharges 
his  gun,  at  such  a  distance  from  his  intended  victim,  tliat 
it  is  physically  impossible  for  the  missiles  to  reach  hinu 
or  where  the  gun  is  loaded  with  paper  wads  thereby  mak- 
ing it  impossible  to  do  him  any  harm,  the  attemi)t  was 
not  committed.^'     The  imi)ossibility  may  consist  of  the 

25 — State  v.  Allen,  47  Ck)nn.  121;  27— People   v.  Moran,   123  N.  Y. 

Piekard  v.  State,  30  Ga.  767;   Tay-  25  N.   E.  412;    Hinkle  v.  State,  32 

lor   V.    State,    50    Ga.    79;    State   v.  Ind.  220;  People  v.  Jones.  46  Mich. 

Hays,  78  Mo.  307;  State  v.  Eleck,  7  441,  9  N.  W.  486;    Clark  v.  State, 

Johns   68.  86    Tenn.    511;    State    v.    Mitchell, 

26— State    v.    Beal,    37    Ohio    St.  170   Mo.   633,   71   S.   W.   175,  94   A. 

108,   41    Am.   Rep.   490;    RodKors   v.  S.   R.   763;    People   v.   Gardner,    144 

(Jom..   5   Serg.  &   R.  463;    Hamilton  N.    Y.    119,   38   N.    E.    1003,   43    A. 

V.    State,    36    Ind.    280;     People    v.  S.    i{.   741,   28   L.   R.   A.   699;    State 

fiiish,  4    Hill    113.  V.   FritzRerald,  40   La.   260,  31   Am. 


Attempts  327 

want  of  power  or  force,  or  the  want  of  the  capacity  of  the 
means  used  to  produce  the  intended  crime;  or  it  may  be 
where  the  acts  and  the  intent  concur  but  the  impossibility 
of  the  committing  the  crime  consists  in  the  want  of  the 
thing,  upon  which  the  crime  may  be  committed. 

§  378.  The  extent  of  the  act.  It  appears  that  the  act 
should  proceed  sufficiently  near  to  the  object  to  be  af- 
fected, or  else  the  repentance  will  take  place  within 
legitimate  bounds.^*  It  will  depend  to  a  great  extent  upon 
the  character  of  the  oifense  intended  to  be  committed, 
whether  the  act  had  proceeded  too  far  to  free  it  from 
culpability.  So,  also,  whether  the  abandonment  was  the 
voluntaiy  relinquishment  of  the  intent,  or  whether  it 
was  the  result  of  some  external  force,  over  which  the  ac- 
cused had  no  control.  Thus,  in  the  crime  of  murder,  the 
party  might  proceed  to  where  A  was,  with  the  specific  in- 
tent of  killing  him,  and  prepared  to  do  so,  but  proceeds 
no  further  with  the  matter,  he  certainly  would  not  be 
guilty  of  the  attempt  to  murder.^  But  in  the  case  of 
rape,  B  proceeds  with  the  intent  to  ravish  with  force, 
and  the  woman  flees  and  he  thereupon  abandons  his  in- 
tentions, this  would  be  the  attempted  crime. ^° 

Rep.  148;  People  v.  Mason,  254,  25  30— State  v.   Boon,  57   Am.  Dee. 

N.   E.   412,   20   A.   S.   R.    732.  555;    State   v.   Neely,    74    N.   C.    13 

28— Rex   V.   Chapin,   3    Cox   0.   C.  Ired.    (N.   C.)    244;    State  v.   Neely, 

467;  People  v.  Murray,  14  Cal.  159;  74  N.  C.  425;  21  Am.  Rep.  496;  Tay- 

Hicks  V.  Com.,  86  Va.  223;  9  S.  E.  lor  v.  State,  50  Ga.  79;  State  v.  Mc- 

1024,  19  A.  S.  R.  891;   Rex  v.  Me-  Daniel,  60  N.  C.  245;  State  v.  Elick, 

Pherson  D.  &  B.  196;  Rex  v.  Cheeze-  52  N.  C.  68;  State  v.  Hayes,  78  Mo. 

man,  9  Cox  C.  C.  103.  307 ;   State  v.  McHafPey,  132  N.  C. 

29— Rex  V.  Taylor.  1  F.  &  F.  511;  1062,   44   S.   E.   107;    State   v.   Wil- 

Hicks  V.  Com.,  86  Va.  223.  See  liams,  121  N.  C.  628,  28  S.  E.  405. 
Lawson's  Cr.  Simplified,  page  66. 


CHAPTER  XIX 

BAEEATEY 

§  379.  Defined.  §  383.  Champerty  and  maintenance. 

§  380.  Is  an  offense  in  the  American  §  384.  Are   offenses  which   interrupt 

states.  the  course  of  justice. 

§  381.  A    misdemeanor    at    common  §  383.  Further  discussed. 

law.  §  386.  As   criminal    offenses    in    the 
§  382.  Was  indictable  as  a  common  states. 

nuisance  at  common  law. 

§  379.  Common  Barratry  defined.  Coimnon  barratry  at 
the  common  law  consisted  in  frequently  inciting  and  stir- 
ring up  suits  and  quarrels,  between  the  king's  subjects.^ 
This  according  to  the  definition  of  Sir  Wm.  Blackstone. 
Lord  Coke  defined  the  offense  in  this  language.  ' '  A  com- 
mon barrator  is  a  common  mover  or  stirrer  up  or  main- 
tainer  of  suits,  quarrels,  between  parties  either  in  the 
courts  or  in  the  country — in  the  hundred,  or  inferior 
courts.  In  the  country,  in  three  manners;  in  the  disturb- 
ance of  the  peace ;  in  taking  or  detaining  of  the  possession 
of  houses,  lands,  or  goods,  which  are  in  question  or  in 
controversy,  not  only  by  force,  but  by  subtlety  and  de- 
ceipt  and  for  the  most  part,  in  suppression  of  truth  and 
right;  by  false  intervention  and  the  sowing  of  calumny, 
rumors  and  reports,  whereby  discord  and  disquiet  arise 
botwecn  iieiglibors. "  ^ 

§  380.  Is  an  offense  in  the  American  States.  This  is 
an  olTcnse  in  the  American  Slates,  where  tiie  common 
law  offenses  are  enforced,  but  it  has  faUen  into  disuse  to  a 
very  great  extent.  Very  few  adjudications  of  this  crime 
are  to  be  met  willi  in  liic  i;i-('n1  xolnnie  of  re|)()rle(l  cases  in 

1 — J  Jil;i.  Com.    1;M.  2—H  ("okc  'J(i   h. 

;rj.s 


Barratry  329 

the  American  Courts.  May  in  his  Treatise  upon  the  com- 
mon hiw  at  section  sixty-six  says:  "Barratry  is  a  habitual 
champerty  or  maintenance,  and  is  committed  where  one 
has  become  so  accustomed  to  intermeddle  in  strifes  or 
controversies  in  or  out  of  court,  that  he  may  be  said  to 
be  a  common  mover,  exciter,  and  maintainer  of  suits  and 
quarrels,  as  one  becomes  a  common  scold  by  the  too  fre- 
quent and  habitual  abusive  use  of  the  tongue,  and  a 
common  seller  of  liquor,  who  habitually  sells  it  in  viola- 
tion of  the  law.  A  series  of  acts  not  less  than  three  are 
necessary  to  constitute  the  habit,  which  is  the  gist  of  the 
offense.  The  crime  may  be  committed  by  a  justice  of  the 
peace,  who  stirs  up  prosecutions  to  be  had  before  himself, 
for  the  sake  of  fees,  and  it  seems,  by  one  who,  unnecessar- 
ily and  for  the  purpose  of  opposing  his  adversary,  brings 
numerous  suits  in  his  own  right. '  '^ 

§  381.  Was  a  misdemeanor  at  common  law.  This  was 
a  misdemeanor  at  the  common  law,  and  punished  by  fine 
and  imprisonment.*  It  appears  that  it  is  punished  in  the 
courts  of  the  British  Government  to  a  great  extent  to  this 
day.  Some  of  the  states  of  the  American  union  have  stat- 
utes covering  in  particular,  the  crime.^ 

§382.  Was  indictable  as  a  common  nuisance,  at 
common  law.  The  intent  in  this  offense  seems  to  have 
been  essential  in  this,  that  the  defendants  were  moved  to 
the  inciting  and  the  stirring  up  strife  and  law  suits  from 
some  kind  of  selfish  or  personal  interest.  It  also  appears 
that  if  the  same  was  continued  and  carried  on  to  such  an 
extent,  the  same  became  indictable  as  a  common  or  pub- 
lic nuisance,  such  as  common  scolds  and  the  like,  which 
as  we  have  seen  consists  in  the  continued  and  frequent 

3 — State  V.  Chitty,  1  Bailey  379;  5 — See    statutes    of    the    several 

Com.  V.  McCullock,  15  Mass.  227.  states. 

4— Bla.   Com.   134. 


330  Criminal  Law 

outburst  of  vile  and  vituperative  language  engaged  in 
by  a  woman.  The  intent  in  the  offense  of  public  nui- 
sance, seems  not  so  much  to  be  based  upon  any  particular 
intent  to  do  anj^  particular  person  an  injury,  nor  that 
there  was  any  specific  intent  to  injure  the  public,  but  con- 
sists in  doing  that  thing  voluntarily  which  has  the  effect 
of  becoming  offensive  to  the  public, 

§383.  Champerty  and  maintenance.  Champerty  and 
maintenance  were  crimes  at  the  common  law,  but  are  ob- 
solete with  us.  The  same  is  defined  as  follows:  Cham- 
perty is  defined  in  the  old  books  as  the  unlawful 
maintenance  of  a  suit  in  consideration  of  some  bargain 
with  another,  that  the  champertor  have  some  part  or 
profit  out  of  the  suit  or  litigation.^  IMainteuance  is  an 
offense  against  public  justice,  as  it  keeps  alive  strife  and 
contention,  and  subverts  the  remedial  processes  of  the 
law,  into  an  engine  of  oppression.  By  the  Roman  law 
it  was  a  species  of  the  crimen  falsi,  to  enter  into  any  con- 
spiracy, or  to  do  any  act,  to  support  another's  law  suit, 
by  money,  witnesses  or  patronage.'^  The  distinction  be- 
tween Champerty  and  maintenance  is  given  as  follows: 
''Where  there  is  no  agreement  to  divide  the  thing  in  suit, 
the  party  inteiTneddling,  is  guilty  of  maintenance  only, 
but  where  the  stipulations  are  that  they  have  or  received 
a  part  of  the  thing  in  suit  he  is  guilty  of  Champerty.' 
The  old  law  seems  to  have  regarded  these  crimes  as 
Mala  in  so,  Thus  *'lt  a])])oareth  that  the  end  of  Cham- 
perty and  maintenance  is  to  suppress  justice  and  truth,  or 
at  least  to  work  delay  and  therefore  it  is  Mala  in  se, 
and  against  the  common  law.^ 

§  384.  Are  offenses  which  interrupt  the  course  of  jus- 
tice.   Nothing  with  more  aptitude  can  be  said  upon  this 

6 — Stnndlfy  V.  .Jonos,  7  BiiiR.  3(59.        Ross,    l.'i     Iiul.    117;    Rodgewick    v. 
7—4  BlnckHtono  Com.  1  .'!">.  Slaiifoii,  4   Kerr   (N.  Y.)   289. 

8 — i    Bl.'uksfoiic     i:{4;     Scohy    v.  D— 2  In.st.  208. 


Barratry  331 

subject  than  by  adopting  the  language  of  Chancellor  San- 
ford  in  a  leading  case  in  this  country.  Thus,  Champerty, 
Maintenance  and  Barratry,  were  defined  as  offenses  in 
the  very  early  stages  of  the  English  law.  These  prac- 
tices seem  to  have  been  then  common  in  England,  and 
they  were  denounced  as  sins  very  heinous  in  themselves, 
and  highly  injurious,  to  the  peace  of  society,  but  also  as 
offenses,  which  actually  interrupted  the  course  of  public 
justice.  The  excitement  of  suits  is  an  evil,  when  suits  are 
unjust,  but  when  right  is  withheld  and  the  object  of  a 
suit  is  just,  to  promote  the  suit,  is  to  promote  justice. 
That  a  resort  to  the  public  tribunals  for  justice  can  pro- 
duce justice,  is  true  only,  where  the  administration  of 
justice  is  weak  or  corrupt,  or  where  the  laws  are  veiy 
imperfect.  Where  the  administration  of  justice  is  firm, 
pure  and  equal  to  all,  and  where  the  laws  give  adequate 
redress  for  groundless  suits,  it  is  not  easy  to  conceive, 
that  mischief  can  arise,  from  opening  the  courts  of  jus- 
tice to  all  suitors,  or  from  contracts  by  which  the  fruits 
of  a  suit  may  be  divided  between  him  who  has  the  right 
of  action,  and  him  who  has  contributed  advice,  expense, 
or  exertion  to  institute  the  suit,  or  prosecute  it  to  effect. 
The  Roman  law  by  its  provisions  for  the  preventing 
groundless  and  vexatious  suits  required  that  the  plain- 
tiff should  take  an  oath,  that  the  suit  was  not  commenced 
from  malice,  and  that  he  believed  that  his  cause  was  legal 
and  just.  The  defendant  was  required  to  swear,  that  in 
his  belief  that  the  plaintiif  had  no  just  claim.  The  ad- 
vocates on  both  sides  were  required  to  take  similar 
oaths.  If  the  plaintiff  failed  in  his  suit,  he  was  fined 
in  the  sum  which  some  times  was  a  tenth  part  of  the 
demand.  And  in  cases  of  great  malice  and  vexation,  the 
plaintiff  was  further  punished  by  a  decree  of  ignominy. '  '^® 

10— Thallhimer  V.  Brinekerlioff,  15       59;    Dig.    Book,    Tit.    179.      Woods 
Am.  Dee.  310-311.     Also  cites  Inst.        Civil  Law,  3-il. 
Book,  4  Tit.   16;   Code  Book,  2  Tit. 


332  Criminal  Law 

§385.  Same  continued,  etc.  So,  continuing  the  same 
writer  says:  The  English  doctrine  of  maintenance  arose 
from  causes  peculiar  to  the  state  of  society  in  which  it  was 
established.  The  great  reason  for  the  suppression  of 
Champerty  and  maintenance,  was  an  apprehension,  that 
justice  itself  was  endangered  by  these  practices.  Black- 
stone  speaks  of  the  offense  as  perverting  the  process  of 
law  into  engines  of  oppression.  In  the  case  of  Slywrite 
V.  Page  1,  Leon  167,  it  was  said  by  the  whole  court  of 
common  picas,  that  the  meaning  of  the  statute  of  32  Hen 
8  concerning  maintenance,  was  to  repress  the  practices  of 
many,  who  when  they  thought  they  had  title  or  right  to 
any  land,  in  furtherance  of  their  pretended  right,  to  con- 
vey their  right  in  some  part  to  great  persons,  and  with 
their  countenance  oppress  the  possessors.  The  power  of 
great  men,  to  whom  rights  of  action  was  transferred 
in  order  to  obtain  support  and  favor  in  suits,  brought  to 
assert  these  rights,  the  confederacies  were  thus  formed, 
and  the  oppression  that  from  the  influence  of  great  men 
in  such  cases,  are  themes  of  complaint  in  the  early  books 
of  the  English  law.  While  the  power  of  nobles  and  great 
men  were  felt  in  the  administration  of  the  law,  the  prac- 
tices seem  to  have  produced  real  and  great  evils.  In  that 
state  of  things,  instead  of  invigorating  and  purifying  the 
administration  of  jnstice,  as  the  remedy  of  snch  evils,  the 
laws  concerning  Champerty  and  Maintenance  were  es- 
tablished, as  penal  regulations  intended  to  operate  on  the 
parties  to  these  transactions.  In  modern  times,  and  since 
England  has  enjoyed  a  firm  and  pnrer  administration  of 
justice,  these  evils  are  little  felt.  And  Cliamperty  and 
Maintenance  are  now  seldom  mentioned,  as  occurring  in 
fact,  or  as  producing  mischief  in  lliat  connlry." 

§  386.  As  criminal  offenses  in  the  states.     Champerty 

and  Maintcnanco,  as  ci-iniiiial  offenses  do  nol  ai)|)('ar  lo  ho 

n— Thallhimcr     v.     HrinckcrliofT, 
l.'j  Am.  Dec.  .312;   .'5  Co  wen  623. 


Barratry  333 

enforced  in  the  states  of  the  union,  but  such  contracts  are 
according  to  some  of  the  courts  void,  because  contrary  to 
public  policy.  There  is,  however,  no  uniformity  of  au- 
thority on  this  proposition,  some  of  the  courts  holding 
that  they  are  void  and  some  that  they  are  not.  The  most 
reasonable  doctrine  for  this  country  with  our  conditions 
is  ably  and  succinctly  set  forth  in  an  early  opinion  by 
Judge  Kinney,  in  an  Iowa  case.  ' '  In  this  countiy  of  wise 
and  wholesome  laws,  enjojdng  as  we  do,  a  political  and 
social  equality,  which  can  never  exist  under  the  institu- 
tions of  England,  with  the  administration  of  justice,  alike 
accessible  to  the  poor  and  the  rich,  the  doctrine  of  Main- 
tenance and  Champerty  in  England,  cannot  exist ;  it  is  al- 
most impossible  to  conceive  how  a  case  of  Champerty  or 
Maintenance  can  occur;  it  is  not  a  part  of  our  judicial 
policy  to  shut  out  any  suitor,  or  to  close  the  temple  of 
justice  against  those  who  resort  thither  for  an  adjust- 
ment of  their  legal  rights.  Neither,  should  litigation  be 
invited,  or  improperly  or  unlawfully  encouraged,  as  to 
amount  to  oppression.  To  check  this  our  statutes  in 
relation  to  malicious  prosecutions  and  limitation  of  ac- 
tions have  been  passed.  *  *  *  ^e  see  no  necessity 
of  adopting  the  English  law  on  this  subject.  The  state 
of  society  which  produced  it,  and  the  evils  which  it  was 
intended  to  remedy,  do  not  exist  here. ' '  ^^ 

12 — Wright  V.  Meek,  15  Am.  Dec. 
note,  page  318. 


CHAPTER  XX 

BIGAMY 

§  387.  Defined.  §  394.  At    common    law,    wife    not 

§  388.  Exceptions  under  the  statutes.  competent   to  testify. 

§  389.  Wliat     facts    the     indictment  §  395.  Incestuous  marriage,  etc. 

must  contain.  §  396.  What  is  a  good  defenre. 

§  390.  How    the    marriage    may    be  §  397.  Wliere   the   right  to   remarry 
proven.  is  upon  contingency,  etc. 

§  391.  Under      what      circumstances  ?;  398.  As  to  the  place  of  the  mar- 
may  the  defendant  be  con-  riage. 

vieted.  §  399.  No  defense  to  show  the  for- 

§  392.  Manner    of    performance    of  nier  marriage  is  voidable, 

marriage  ceremony.  §  399a.  Contract    of    marriage   must 

§  393.  What    is    competent    evidence  be  solemnized, 

against  the  defendant. 

§387.  Polygamy  and  bigamy  defined.  This  offense 
consists  in  liaving  a  plurality  of  wives  at  the  same  time. 
Bigamy,  consists  in  having  two  wives  at  the  same  time, 
not  being  legally  divorced  from  either.  ( )i-igiiially  it  was 
cognizable  in  the  ecclesiastical  courts  only,  Imt  later 
it  became  to  be  regarded  a  very  serious  pciversiou  of 
morals  and  flagrant  violation  of  i)ublic  economy,  and  con- 
sequently was  raised  to  a  felony.  It  was  enacted  by  stat- 
ute of  I  James  ''I,"  that  any  person  being  married  do 
afterwards  marry  again,  the  fonner  liusl)and  or  wife 
being  alive,  it  is  felony.  By  the  law  of  Sweden,  biga- 
mous marriages  were  punished  with  death. ^  Tiiis  was 
not  an  ofreiise  at  coininoii  law. 

§388.  Exceptions  under  the  statutes.  By  the  statutes 
above  referred  to,  the  roHowing  ('xcej)lions  were  per- 
initlcd    as    a    (MMiiplcIc    cxoiici'al  ion.      (I)     W'hnc    cllhcr 

1 — 4  Hlacksfonc  (Join.    U)3. 


Bigamy  335 

party  had  been  continuously  absent  for  seven  years.  (2) 
Where  either  party  has  been  absent  from  the  other,  seven 
years  in  the  kingdom,  and  the  remarrying  party  hath 
had  no  knowledge  of  the  other's  being  alive  within  that 
time.  (3)  Where  there  is  a  divorce  or  (separation  a 
mensa  et  tlioro),  by  sentence  in  the  ecclesiastical  court. 
(4)  Where  the  marriage  is  absolutely  void  and  so  declared 
by  judgment  and  the  parties  loosed  a  vin-culo.  (5) 
Where  either  party  is  under  the  age  of  consent  at  the 
time  of  the  first  marriage,  for  in  such  case  the  marriage 
is  voidable  by  disagreement  of  parties.  But  if  an  agree- 
ment at  reaching  the  age  of  consent  is  effected,  then  it 
seems  that  the  second  marriage  is  bigamous.  If  the  first 
marriage  is  void,  then  a  second  marriage  is  not  bigamous.^ 
As  where  a  marriage  is  prohibited,  of  persons  under  cer- 
tain age;  or  where  the  parties  by  the  law  are  prohibited 
to  marry  under  certain  conditions  and  which  make  such 
marriage  void.  But  it  was  held  in  an  English  case  that 
the  marriage  was  bigamous,  where  the  man  married  under 
an  assumed  name,  though  by  law  such  marriage  was 
void  as  to  person  competent  to  contract.  The  first  mar- 
riage being  legal,  it  is  immaterial  that  the  second  mar- 
riage would  have  been  void.'  As  where  the  statute 
forbids  the  marriage  of  certain  class  of  persons,  as  be- 
tween a  negro  and  a  white  person. 

§  389.  What  facts  the  indictment  must  contain.    The 

indictment  must  allege  the  first  and  second  marriages, 
and  that  the  former  husband  or  wife  was  alive  at  the 
time  of  the  second  marriage.  It  is  required  of  the  gov- 
ernment to  show  the  existence  of  the  first  and  the  second 
marriage.     The  first  marriage  must  be  proven  to  have 

2— state  V.  Stewart,  194  Mo.  245,  20   Ohio   St.   1;    Halbrook   v.   State, 

92   S.  W.  878,  112  A.  S.  E.  529,  5  34  Ark.  511,  36  Am.   Rep. 
Ann.    Gas.    963;     People    v.    Spoor,  3 — People    v.    Brown,    34    Mich. 

235  111.  85,  N.  S.  207,  136  A.  S.  R.  339,  22  Am.  Rep.  531;  Kirk  v.  State, 

197,    and    note    page    201,    and    au-  65  Ga.  159. 
thorities   collated;    Shafer   v.   State, 


336  Criminal  Law 

been  legal.  It  is  also  incumbent  upon  the  government  to 
prove  the  legal  existence  of  the  second  marriage,  except 
in  so  far  as  the  legality  of  the  first  marriage  vitiates  it — 
at  least  it  must  be  shown  that  the  parties  went  through 
the  form  of  marriage  ceremony.* 

§  390.  How  the  marriage  may  be  proven.  The  mar- 
riages may  be  proven  by  a  certificate  of  marriage  where 
the  law  authorizes  the  issuance  of  the  same;  also  by  a 
registry,  or  by  an  authenticated  license  and  return  thereon 
as  required  by  law.  It  is  not  necessary  that  the  license 
or  a  copy  of  the  registry  be  produced  in  all  cases.  Any 
person  who  was  present  at  the  time  of  the  marriage  per- 
formance, or  a  subscribing  witness,  is  competent  to  show 
the  marriage.  The  second  marriage  is  proven  exactly  as 
the  first.  In  accordance  with  the  well  known  principle  of 
evidence,  the  best  evidence  of  the  marriage  should  be  of- 
fered or  legal  reasons  given  why  it  is  not  done.  What- 
ever, the  laws  of  the  place  of  the  marriage,  requires  to  be 
done,  antecedent  to  the  marriage,  must  be  proven  to  have 
been  done.  The  Locus  Contractus,  governs  the  validity 
of  the  respective  marriages.  If  the  first  marriage  was  le- 
gal where  contracted  it  can  make  no  difference,  that  a 
different  law  prevails  in  the  place  of  the  prosecution.*  It 
is  to  be  understood,  that  there  must  be  territorial  juris- 
diction of  the  second  marriage  as  provided  by  the  statute. 
Generally  the  second  marriage  must  have  taken  place  in 
the  county  of  the  prosecution.  Where  the  law  requires  the 
marriage  ceremony  be  perfonned  by  certain  designated 
officers,  the  evidence  must  show  that  the  officiating  per- 

4— Rex  V.  Brown,  I.  C.  &  K.  114;  v.  l-eoplo,  loC  HI.  514,  41  N.  E.  181, 

McComb  V.  State,  50  Tex.  App.  499,  47  A.  S.  R.  221 ;  People  v.  Lambert, 

99   S.   W.   1017,    123   A.   S.   R.   855,  5    Mich.    349,    72    Amor.    Dec.    49; 

14  Ann.  Uas.  72,  9  L.  R.  A.  (N.  S.)  State  v.  Johnson,  12  Minn.  476,  93 

1036;    Waldrop    v.    State,    41    Tex.  Anier.    Dec.    244;    State    v.    Cooper, 

App.   194,  53  S.  W.;  St^-ite  v.  Snif-  103   Mo.   26G,   15  S.   W.  327;    Stale 

(in,  44  Wash.  485,  12  Ann.  Cas.  113,  v.  liently,  75  Vt.  163,  53  Atl.  1068. 
87    I'lir.    837,    120    A.    S.    It.    1009;  5—3  Greonl.  Ev.,  sec.  204. 

Wall   V,   State,  32    Ark.   565;    Hilcr 


Bigamy  337 

son  comes  within  the  statute.  Proof  of  mam  age  by  repu- 
tation seems  to  be  regarded  by  some  authorities  as 
insufiicient  standing  alone  to  establish  the  marriage,  but 
it  may  be  shown  as  any  other  fact  or  circumstance  tend- 
ing to  create  the  inference  of  the  existence  of  the  mar- 
riage. Even  the  conduct  of  the  defendant  toward  the 
alleged  wives  may  be  shown  to  prove  or  to  disprove  the 
probability  of  the  marriages.^ 

§  391.  Under  what  circumstances  the  defendant  may 
not  be  convicted.  So,  if  at  the  time  of  the  alleged  prior 
marriage,  it  is  shown  that  the  defendant  was  legally 
married  to  another  woman,  he  cannot  be  convicted  of  big- 
amy, for  the  alleged  prior  marriage  is  illegal  and  void; ' 
or  where  it  appears  that  the  first  marriage  has  not  been 
perfonned  as  the  laws  direct,  and  there  is  no  evidence 
of  the  cohabitation  of  the  parties.*  It  appears  that  where 
the  parties  are  living  together  as  husband  and  wife  in 
the  absence  of  a  statute  requiring  certain  specific  acts,  to 
be  mutually  performed  by  the  parties  to  the  contract, 
that  this  would  constitute  the  cohabitation  as  a  marriage 
under  the  common  law,  and  a  subsequent  marriage  would 
be  bigamous,  but  this  condition  is  to  be  determined  as 
a  matter  of  fact  by  the  court  or  jury  as  the  case  may  be, 
and  not  to  be  declared  as  a  matter  of  law  by  the  court 
trying  the  case.  The  Missouri  courts  has  defined  mar- 
riage thus :  * '  Marriage  is  the  civil  status  of  one  man  and 
one  woman  capable  of  contracting,  united  by  contract 
and  mutual  consent  for  life,  for  the  discharge  to  each 
other,  and  to  the  community,  of  the  duties  legally  incum- 
bent on  those  whose  association  is  founded  on  the  distinc- 
tion of  sex."     To   constitute  a  valid  marriage,   either 

6 — Gahagan   v.   People,   1   Parker  Halbrook  v.  State,  34  Ark.  511,  36 

C.   E.   378;    U.   S.  v.   Higgerson,  46  Am.  Eep.   17. 

Fed.   750;    People  v.   Hartman,   130  8— People  v.  McQuid   (Mich.),  48 

Cal.  487.  N.   W.   161;    State  v.  Davis,   14  S. 

7— Kenval  v.  State,  64  S.  W.  897;  E.  (N.  C.)  55. 
C.  L.— 22 


338  Criminal  Law 

under  the  statute  or  by  the  common  law,  there  must  be 
1.  one  man  and  one  woman  capable  of  contracting;  2. 
they  must  enter  a  contract  by  which  they  assume  the  re- 
lation of  husband  and  wife  for  their  joint  lives,  and  they 
must  both  understand  that  neither  one  nor  the  other,  nor 
both  can  rescind  the  contract  or  destroy  the  relation.^  If 
the  proof  shows  the  previous  marriage  to  have  been 
within  the  conditions  of  the  above  then  the  marriage 
may  be  said  to  be  proven,  and  a  subsequent  marriage  of 
either  party,  would  be  bigamous. 

§392.  Manner  of  performance  of  marriage  ceremony. 

Another  important  doctrine  of  the  law  relating  to  the 
validity  of  the  marriages,  is  that  of  the  manner  in  which 
the  ceremony  is  performed.  Where  the  statute  provides 
that  the  ceremony  shall  be  performed  by  certain  desig- 
nated officers  or  of  a  certain  class  of  persons,  with  out  a 
provision  to  the  effect  that  unless  the  ceremony  is  per- 
formed as  the  hiw  directs  that  the  same  shall  be  void,  a 
maiTiage  performed  by  other  persons  than  those  men- 
tioned in  the  statute  will  not  make  it  void,  and  it  is  no 
defense  to  the  crime  of  bigamy.^" 

§  393.  What  is  competent  evidence  against  the  defend- 
ant. There  appears  to  be  some  contlict  of  authority, 
whether  the  admission  of  the  defendant  as  to  the  exist- 
ence of  the  first  marriage,  is  competent  evidence  against 
him,  but  the  weigiit  seems  to  ])e  with  the  affirmative,  espe- 
cially so,  when  the  admissions  are  corroborated  by  co- 
habitation. The  courts  have  held  admissions  proper,  in 
the  states  of  Alal)aina,   Indiana,   lown,   Minnesota,  ()hio, 

9— State  V.  Cooper,  15  8.  W.  327;  Ifdhcrtson  v.  Com.,  Gi)  Ky.  (6  Bush) 

Rt.-ttc  V.  Bittick,  15  S.  W.  325.  :!00;   Slate  v.  Davis,  109  N.  C.  780, 

10 — Dwycr   v.    Brannoch.    OG    Mo.  14  N.  K.     See  note,  People  v.  Spoor, 

;!91,    L'7    Am.    Hop.    359;    State    v.  iLMi    A.    R.    K.,    ])aK0    21G.      Former 

Zithfeld,  23  Ncv.  301,  4Ct  Vuc.  802,  in.irria^i'  iiii(l<'r  jijje  of  consent,  aeo 

62  A.  S.  R.   800,  34    I..    I{.    A.   784;  iiiitlioril  k-s  cited,  note,  paj,'e  215. 


BioAMY  389 

Pennsylvania,  Virginia,"  and  perhaps  others,  but  the 
states  of  Michigan  and  Kentucky  and  perhaps  others 
have  denied  the  competency  of  such  evidence  unless 
coupled  with  cohabitation.^^ 

§394.  At  common  law  wife  not  competent  to  testify. 

By  the  common  law  rule  the  first  wife  is  not  a  competent 
witness  against  the  defendant,  for  the  reason,  that  at  com- 
mon law  the  wife  is  not  permitted  to  be  a  witness  against 
her  husband.^^  But  the  second  wife  is  a  competent  witness 
to  prove  the  second  marriage,  for  the  reason  that  the 
marriage  between  her  and  the  defendant  is  absolutely 
void,  and  that  she  is  no  wife  in  the  contemplation  of  the 
law.  But  this  incompetency  of  the  common  law,  is  no 
doubt  removed  in  most  of  the  states  by  statute,  allowing 
the  prior  wife  to  testify  against  the  husband.  And  under 
a  statute  which  gives  the  wife  the  right  to  testify  where  a 
crime  has  been  committed  against  her  by  the  husband, 
the  wife  is  a  competent  witness  against  the  husband.^* 

§395.  incestuous  marriages,  etc.  Incestuous  mar- 
riages, and  marriages  prohibited  within  certain  degrees 
of  consanguinity  and  affinity  and  the  like,  will  not  exempt 
from  the  consequences  of  a  bigamous  marriage.  This  is 
the  rule  under  the  common  law.^^  The  gist  of  the  oifense 
of  bigamy,  consists  in  the  fact  of  having  two  wives  at  the 
same  time.  There  can  be  no  bigamy  where  the  prior  mar- 
riage was  illegal  or  in  other  words  was  void,  for  the 
wrong  is  complete  when  it  appears  that  the  defendant 
has  undertaken  to  place  himself  in  the  marriage  relation 

11— state   V.   Abbey,   29   Vt.   60;  Mich.    349;    Com.    v.    Jackson,    11 

O'Neal  V.  Com.,  17  Grat.  582;  Lang-  Bush  679,  74  Ky.  21  Am.  Rep.  225. 

ley  V.  State,  30  Ala.  536;  Finey  v.  13— Williams  v.  State,  44  Ala.  24; 

Htate,    3    Head   544,    1    East   P.    C.  State  v.  Patterson,  2  Ired.   (N.  C.) 

470,  11  Maine  391.  346. 

12 — State    V.    Johnson,    12    Minn.  14 — Dumas  v.  State,  14  Tex.  App. 

476;    Gahagan   v.   People,   1   Parker  464,   46  Am.  Eep.  241. 

Cr.  Cas.  378:   People  v.  Lambert,  5  15—41  L.  J.  (N.  C.)  101. 


340  Criminal  Law 

with  another  woman,  and  it  is  immaterial  whether  he  in 
fact  places  himself  as  a  matter  of  law  in  that  state,  it  is 
sufficient  if  in  point  of  fact  he  has  done  so.  A  reason 
may  be  assigned  for  this,  supported  by  the  authorities, 
that  such  association  of  a  man  and  a  woman,  involves  a 
breach  of  public  decency  and  morals,  creates  a  public 
scandal  by  the  prostitution  of  a  solemn  and  sacred  cere- 
mony; that  the  assumption  of  such  a  relation  presupposes 
mutual  obligations  to  each  other  and  duties  to  society, 
which  prove  themselves  to  be  subversive  to  the  best  in- 
terest of  the  community,  and  a  gross  deception  and 
fraud." 

§396.  What  is  a  good  defense.  A  divorce  from  the 
first  marriage  is  a  good  defense.  So  are  any  one  of  the 
exceptions  of  the  statute,  such  as  those  of  the  English 
Statute  of  James  1,  referred  to,  supra,  if  the  defendant 
shows  himself  to  come  within  the  exception.  The  ac- 
cused may  show,  that  the  former  wife  or  husband  died 
before  the  alleged  second  marriage.^'  He  may  show  that 
the  contract  of  marriage  was  illegal  in  the  place  where  it 
was  entered  into.  The  statutes  for  granting  and  allowing 
divorces  are  not  uniform  in  all  the  states.  In  some 
jurisdictions  the  statutes  grant  divorces  upon  grounds 
and  for  reasons  that  are  not  permissible  in  others,  and 
prohibit  one  or  both  parties  from  remarrying;  in  such 
case  a  second  marriage  is  illegal,  and  therefore  biga- 
mous." The  defendant  may  show  that  the  partner  of 
the  foraier  marriage  has  been  continuously  absent  from 
tiie  state  for  seven  years,  and  therefore  raising  the  pre- 
sumption of  death. 

§  397.  Where  the  right  to  remarry  is  upon  a  contin- 
gency, etc.     Where  the  statute  i)roliibits  one  who  has 

IG— People    V.    Brown,    34    Mich.  18 — People    v.    Fabcr    (2    N.    Y. 

.3:59,  22  Am.   R«p.  ."J.'M  ;   Cyc.  vol.  5,       14G),  44  Am.  Rep.  :ir)7. 
p.  693,  note  24. 

17—2  Vol.  Am.  &  Eng.  Eiicy.  193- 
VM. 


Bigamy  341 

been  divorced,  from  remarrying,  or  places  any  restric- 
tion on  the  right  to  marry,  dependent  upon  a  contingency, 
such  contingency  must  have  been  shown  to  have  arisen, 
in  order  that  it  be  allowed  as  a  defense.  It  appears  that 
where  a  statute  prohibits  the  remarriage,  after  the  grant- 
ing the  divorce,  ''until  the  death  of  the  complainant," 
that  the  defendant  may  legally  marry  again  in  another 
state  and  return  and  live  in  the  state  where  the  divorce 
was  granted,  without  being  guilty  of  bigamy.^®  If  the 
laws  of  the  state,  in  which  the  judgment  is  rendered  dis- 
solving the  marriage,  provide  that  the  offending  party 
in  the  divorce  proceeding  shall  not  again  marry,  except, 
upon  certain  conditions,  but  does  not  specifically  pro- 
vide that  a  remarriage  of  the  said  party  shall  be  void, 
It  appears  upon  sound  reasoning  as  well  as  by  high  au- 
thority, a  subsequent  marriage  in  a  different  state  would 
not  be  void — that  the  children  of  such  marriage  would 
not  thereby  be  illegitimate,  and  this  upon  the  theoiy  that 
the  divorce  dissolves  the  bonds  of  marriage  between  both 
parties  to  the  contract,  but  that  the  party  prohibited  to 
marry  is  responsible  to  the  laws  of  the  state  where  the 
divorce  is  granted.  So,  also,  if  the  said  prohibited  party 
marry  again  while  the  wife  of  the  second  marriage  is 
living,  he  is  then  guilty  of  bigamy,  if  he  marry  in  the 
forum  of  the  divorce.^®  So  if  the  party  to  the  divorce 
remarry  in  the  same  jurisdiction  in  which  the  judgment 
has  been  rendered  he  then  is  guilty  of  bigamy.  Moreover, 
if  after  the  divorce  is  granted  the  party  leave  the  juris- 
diction of  the  divorce  for  the  avowed  purpose  to  remarry 
in  another  state,  and  with  the  intent  to  avoid  the  laws 
of  the  state  where  the  divorce  is  granted  would  thereby 
be  guilty  nevertheless.^^ 

19— Com.   V.    Hunt,   4   Gush.   49;  L.  E.  A.  224;   People  v.  Chase,  28 

Com.   V.    Lane,    113    Mass.   471,    18  Hun,  310. 

Am.  Eep.  509,  5  Vol.  Cyc.  p.  692;  21— Com.  v.  Lane,  113  Mass.  458, 

Ooitt  V.  Smith,  68  Vt.  35.  18    Am.    Rep.    509;    Pennegar    v. 

20— Crawford  v.  State  (Miss.),  35  State,    2    L.    R.    A.    703,    87    Tenn. 


342  Criminal  Law 

§  398.  As  to  place  of  the  marriage.  It  is  a  well  estab- 
lished principle  of  the  law  of  contracts,  that  the  locus 
contractus  governs  the  validity  thereof,  but  to  this  there 
is  a  well  established  exception  in  the  matter  of  contracts 
of  marriage.  The  law  looks  upon  the  contract  of  mar- 
riage as  a  mere  civil  contract  entered  into  by  one  woman 
and  one  man,  and  by  a  great  majority  of  mankind  is 
regarded  in  a  social  sense  as  something  greatly  more  than 
a  contract,  founded  upon  the  most  sacred  ceremony  and 
the  highest  moral  obligations.  The  exception  herein  re- 
ferred to  consists  in  the  intention  of  the  parties  at  the 
time  of  the  marriage,  as  to  the  place  contemplated  by 
them  as  their  future  domicile.  If  therefore  a  marriage 
takes  place  in  one  state,  and  at  the  time  of  marriage  it  is 
the  intention,  bona  fide,  to  make  their  residence  in  an- 
other state,  the  property  right  of  the  husband  and  wife  at 
the  time  of  the  marriage  is  to  be  determined  by  the  laws 
of  the  latter.^^  If  also  at  the  phiee  or  jurisdiction  in  which 
the  marriage  takes  place,  the  laws  prohibit  the  divorced 
parties  from  marrying,  and  one  of  the  contracting  par- 
ties comes  within  the  prohibition,  though  being  at  the 
time  a  resident  of  another  state,  and  it  being  the  intention 
of  the  contracting  parties  to  live  in  a  different  state  from 
that  in  which  the  marriage  takes  place,  and  they  after  the 
marriage  in  fact  take  up  their  residence  in  such  state 
then  the  right  of  the  parties  are  to  be  governed  by  the 
laws  of  the  hitter,  and  the  laws  of  the  fomier  can  have  no 
extraterritorial  jurisdiction.  Tlie  penal  laws  of  the  state 
are  to  be  excrcisc^d  only  upon  her  own  resident  citizens  at 
the  time  of  the  violation  of  the  law,  and  it  cannot  l)c  said 
to  extend  to  ))orsons  who  come  within  the  i)rohil)itc(l  con 

244;  Taylor  Succession,  39  La.  Ann.  Anno.  Caa.  556;  Johnson  v.  Com.,  86 

825;    Johnson  v.  Com.,  86  Ky.   122,  Ky.   122,  5  S.  W.  365,  9  A.  S.  R. 

5  S.  W.  365,  9  A.  8.  R.  269.  269;  Slate  v.  Stewart,  194  Mo.  345, 

22— State  v.   Cutchall,    110  N.   C.  !>2  S.  W.  878,  112  A.  S.  R.  529,  5 

538,    15    S.    E.    261,    16    L.    H.    A.,  Ann.  Caw.  963 ;  Succession  of  Joseph 

130;  State  v.  Kay,  151  N.  C.  710,  66  ilcinandcH,  24  L.  H.  A.  831,  46  La— 

S.    K.    204,    i;{4    A.    S.    li.    1005,    19  ;iiul    :iuthoiili('8  cited   by   the   court. 


Bigamy  343 

ditions,  where  a  violation  of  the  condition  takes  place  in 
another  jurisdiction,  unless  the  laws  of  the  latter  make 
such  acts  penal.  Consequently  a  marriage  taking  place 
between  parties,  one  of  which  comes  within  the  prohibited 
conditions  will  not  be  held  for  bigamy,  if  it  takes  place 
out  of  the  state  of  the  prohibition.  The  penal  acts  of  one 
state  have  no  operation  in  another  state.  They  are  strict- 
ly local  and  affect  nothing  more  than  they  can  reach.''^ 

§  399.  It  is  no  defense  to  show  that  the  former  max- 
riag"e  is  voidable.  It  is  a  good  defense  to  an  indictment 
for  bigamy  to  show  that  the  prior  marriage  was  void,  at 
the  time  of  the  alleged  bigamous  marriage.  It  is  not, 
however,  a  good  defen>se  to  show  that  the  prior  marriage 
was  merely  voidable,  unless  it  is  further  shown  that  it  has 
been  properly  set  aside. ^^  If  the  party  to  the  first  mar- 
riage was  dead  at  the  time  of  the  subsequent  marriage, 
then  this  is  a  defense  to  an  indictment.  But  the  authori- 
ties are  conflicting  whether  a  belief  in  good  faith,  that  the 
spouse  of  the  first  marriage  is  dead,  is  a  good  defense 
The  government  is  required  to  establish  the  validity  cf 
the.  former  marriage,  and  that  the  former  partner  was 
alive  within  the  statutory  period,  and  when  that  is  proven 
then  the  presumption  is  that  he  or  she  was  living  at  the 
time  of  the  second.  But  if  there  is  not  direct  proof  of 
the  existence  of  the  former  partner,  then  the  presump- 
tion of  life  is  offset  by  the  presumption  of  innocence  of 
the  defendant.  A  divorce  is  a  defense  if  the  same  was  a 
valid  one,  and  it  is  incumbent  upon  the  defendant  to 
show  that  a  valid  decree  had  been  granted.  A  mere  belief 
in  good  faith  at  the  time  of  the  second  marriage  that  a 

23 — Story's  Coiif.  Laws,  sec.  621,  dissolved,  by  divorce,  constitutes  no 
p.  841 ;  Lebrenton  v.  Nouchet,  5  defense  to  a  charge  of  bigamy.  Pec- 
Am.  Dec.  736.  pie  v.  Spoor,  235  111.  230,  85  N.  E. 

24— Proof   that   the    second  mar-  207,  126  A.  S.  E.  197.    "Voidable 

riage    was    entered    into    in    good  First  Marriage,"  Baker  v.  People, 

faith  under  honest  and  mistaken  be-  203   111.    68   N.   E.   93;    Eex  v.   Ja- 

lief  that  the  first  marriage  had  been  eobs,  1  Moody,  C.  C.  140. 


344  Cbiminal  Law 

divorce  had  been  granted  is  not  an  absolute  defense  and 
a  certificate  of  the  original  judgment  entry  should  be 
produced,  or  othenvise  proved,  as  the  laws  of  the  particu- 
lar jurisdiction  may  require.  Some  authorities  maintain 
that  a  felonious  intent  is  not  a  necessaiy  ingredient  of  the 
offense  to  be  proven  by  the  govenmient,  and  others  hold 
to  the  contraiy.  It  is,  however,  the  general  rule  that  if  a 
statute  prohibits  the  doing  of  specific  acts,  a  sufficient  in- 
tent is  shown  when  it  is  ascertained  that  the  act  has  been 
done,  to  constitute  criminal  liability.  This  is  only  par- 
tially true,  as  to  this  offense.  If  the  defendant  knows  at 
the  time  of  the  second  marriage  that  he  has  no  right  to 
marry — that  he  had  another  wife  living  at  the  time  and 
that  he  has  not  been  divorced,  the  proof  of  these  facts  will 
be  sufficient  to  constitute  the  offense  without  any  further 
proof  of  intent,  for  these  facts  show  the  intent.  There- 
fore we  take  it  that  if  the  defendant  offers  as  a  defense 
that  he  believed  in  good  faith  that  his  wife  was  dead,  or 
even  if  he  thought  that  he  had  been  divorced,  the  better 
rule  is  to  permit  the  reason  for  the  belief  to  be  submitted 
to  the  jury  and  if  the  defendant  acted  in  good  faith  and 
with  honest  belief  that  the  partner  of  the  former  marriage 
was  dead,  or  that  they  had  been  divorced  it  would  be  suf- 
ficient to  warrant  a  jury  in  acquitting.^ 

§  399a.  Contract  of  marriage  must  be  solemnized. 
The  first  marriage  must  have  been  made  and  solemnized 
under  the  rules  of  law;  differently  stated,  must  iu  all  re- 

25 — Squires  v.  State,  46  Ind.  350:  tliat  the  question  is  settled,  that  an 
It  was  held  that  if  the  defendant  honest  belief,  that  the  defendant 
iiad  made  inquiry  and  did  believe  is  freed  from  the  first  marriage, 
that  he  had  been  divorced  from  his  either  by  death  or  by  divorce,  or 
wife,  that  it  would  be  sufBcient  to  the  like,  will  not  inure  to  the  de- 
acquit.  But  a  contrary  doctrine  was  fendant's  benefit.  Contrary  doc- 
liclil  in  a  Massachusetts  case,  and  trine  see  Rex  v.  Briggs,  1  Denio,  4 
also  in  a  Kentucky  case;  Com.  v.  Bell  1)8.  Sec  also  the  following 
Nash,  7  Mete.  (Mass.)  472;  Davis  ca.sos:  State  v.  ZiMchfield,  23  Nov. 
V.  Com.,  13  Bush.  318.  Harris'  •'tO'l ;  4C  Pac.  802;  Jones  v.  State, 
t.'riuiinal   liaw,  page   114,   maintains  (M  Ala.  84. 


Bigamy  345 

spects  be  legal.  In  order  to  base  a  prosecution  for  big- 
amy, no  such  strictness  is  required  in  tlie  subsecjuent  mar- 
riage, the  criminal  features  of  the  defendant's  acts  are 
shown  by  his  agreeing  to  enter  into  a  marriage  state, 
followed  by  some  ceremony,  or  other  validating  act.^^ 
Sexual  relations  is  not  an  element  of  the  second  marriage. 
The  wrong  seems  to  have  been  completed  when  the  con- 
tract of  the  second  marriage  is  solemnized  in  some  man- 
ner known  to  the  rules  of  law  regulating  marriages. 
Subsequent  enjoyments  and  pleasures  of  married  life  is 
not  an  element.^'' 

26 — Nelms  v.  State,  84  Ga.  466,  ' '  It  was  not  ne&essary  it  should  be 

20    A.    S.    R.    377,    and    authorities  shown  that  he  had  the  two  women, 

cited.      Johnson    v.    Com.,    86    Ky.  or  either  of  them  occupied  the  same 

122,  9  Am.  St.  Rep.  269;    State  v.  bed,  or  slept  in  the  same  room,  or 

Smiley,  98  Mo.  605.    •  that  he  had  sexual  intercourse  with 

27 — Canon  v.   United   States,   116  either  of  them."    See  Cox  v.  State, 

U.  S.  55,  29  L.  Ed.  561.     A  prosecu-  117  Ala.  103,  23  So.  806,  67  A.  S.  R. 

tion   under  polygamy   statute   says:  166,  41  L.  R.  A.  760. 


CHAPTER  XXI 


BRIBERY 


§  400.  Defined  and  described. 

§  401.  The  crime  as  considered  by 
our  ancestors. 

§  402.  The  thing  accepted  must  have 
some  value. 

§  403.  Offering  and  accepting,  sub- 
stantive crimes. 

§  404.  Offering  to  bribe  another  to 
control  vote. 


§  405.  Candidate  offering  to  fill  of- 
fice   without   compensation. 

§  406.  The  offering  to  bribe  in  the 
nature  of  an  attempted 
crime. 

§  406a.  Soliciting  bribe. 

§  407.  Common  law  embracery,  bri- 
bery under  statute. 


§  400.  Defined  and  described.  Bribery  is  the  receiv- 
ing, or  tlie  offering  any  undue  reward,  by  or  to  any  person, 
whose  ordinary  profession,  or  business  relates  to  the  ad- 
ministration of  public  justice,  in  order  to  influence  his 
behavior  in  office,  and  incline  him  to  act  contraiy  to  the 
known  rules  of  honesty  and  integrity.^  Anyone  who  holds 
a  public  office,  or  public  trust  and  corruptly  receives  any 
rewards  or  promises  for  the  perfonnance  or  non-perform- 
ance of  any  act,  it  is  his  duty  to  perform  or  not  perform, 
in  the  administration  of  the  office  or  tnist,  is  guilty  of 


1 — 3  Grccnleaf  Evidence,  71: 
' '  lirihcry  is  where  a  judge,  or  other 
person  concerned  in  the  administra- 
tion of  justice,  takes  an  undue  re- 
ward to  influence  his  behavior  in 
oflSce."  139  Harris'  Cr.  L.  pp.  77- 
78:  "TIic  corrupt  treatment  of  one 
intrusted  with  a  public  charge,  to 
influence  him  in  the  discharge  of  liis 
duty  in  that  character."  This  au- 
thor dividoH  the  ofTense  into:  (1) 
Whore  some  perHon  concerned  in  the 
adniini.st ration  of  i)ublic  justice,  is 
approached  by  one  bringing  him  n 
rcwjird,    in    order    to    inlhienco    liis 


coiuhict  in  office.  (2)  Where  some 
ixTson  li;iving  it  in  his  power  to 
procure,  or  aid  in  procuring  for 
another  a  pul)lic  place  or  appoint- 
ment, i.s  so  approached."  Bishop: 
"  Brilnry  is  tlie  voluntary  giving 
or  receiving  of  any  thing  of  value 
in  corrupt  payment  for  an  official 
act  done,  or  to  be  done."  2  Bishop 
Or.  L.  85.  So  it  is  a  crime  to  take 
■•ind  liencc  it  is  a  crime  to  give 
one,  for  the  offenses  are  reciprocal. 
See  3  Inst.  141,  1  Russell  Cr.  154,  1 
II:i\\k.  r.  C.  eh.  67. 


34f) 


Bribery  347 

bribery.  While  it  is  bribery  to  accept,  it  is  equally  brib- 
eiy  to  offer  a  reward  or  promises — and  that,  too,  whether 
the  bribe  is  accepted  or  not.^  At  the  common  law  the 
offense  was  limited  to  officers  connected  with  the  admin- 
istration of  justice — equally  whether  the  duty  was  of 
a  judicial  or  a  ministerial  character.  For  a  judge  to  ac- 
cept a  bribe,  a  reward,  or  gift  in  consideration  that  he 
would  render  a  particular  decision,  judgment  or  ruling 
was  looked  upon,  as  a  veiy  heinous  offense,  at  certain 
periods  of  our  judicial  histoiy,  and  wa^s  punished  by  the 
infliction  of  the  death  penalty,  but  by  later  statutes  the 
punishment  was  by  fine  and  imprisonment.^ 

§401.  The    crime    as    considered   by   our   ancestors. 

There  seems  to  be  some  confusion,  as  to  how  the  ancients 
considered  the  crimes.  We  find  that  it  was  regarded  as  a 
very  grave  ciime,  and  we  also  find  that  it  wa.s  only  con- 
sidered as  a  misdemeanor,  and  we  have  drawn  the  conclu- 
sion, from  our  investigation  of  the  matter,  that  at  the 
common  law,  as  adopted  by  us  in  this  country,  that  it  was 
not  considered  a  very  grave  offense,  for  it  appears  that  as 
late  as  the  time  of  Lord  Bacon  the  practice  was  general, 
and  that  this  great  philosopher  and  jurist  did  not  con- 
sider it  dishonorable  to  take  rewards  for  favors  to  liti- 

2 — The  crime  of  offering  to  bribe  3 — In  the  case  of  Elles  v.  State, 

is   complete   without   the   tender    or  33    N.    J.    L.    102,    the    court    said: 

the  production  of  money.    The  offer  ' '  That  the  common  law  offense   of 

being    sufficient    with    tender.     Pec-  bribery,   can   only  be  predicated  of 

pic  V.  Ah  Fook,  62  Cal.  493;  U.  S.  a  reward  given  to  a  judge  or  other 

V.  Warrell,  2  Dall.  384;   which  was  official  concerned  in  the  administra- 

an    offer    by    letter.     See    State    v.  lion   of  justice."     The  earlier  text 

McDonald,  6  N.  E.  607  (Ind.).   For  writers    thus    defined    the    offense: 

a    discussion    of    the    offering   of    a  "  Where  any  man  in  a  judicial  place 

bribe,     being     a     substantive     of-  accept  any  fee  or  pension,  robe  or 

fense    and    independent    of    bribery  livery,  gift,  reward  or  brokerage  of 

in  accepting  a  bribe,  see  U.   S.   v.  any  person,  that  hath  to  do  before 

Warrell,    2    Dall.    384;     People    v.  him  in  any  way,  for  doing  his  of- 

Bush,  4  Hill  133;  State  V.  Keys,  8  fice,  or  by  color  of  his  office,   but 

Vt.  57;  State  v.  Carpenter,  20  Vt.  9;  of  the  king  only,  unless  it  be  meat 

State  V.  Binbaset,  32  M.  276.  and  drink  and  that  of  small  value." 


348  Criminal  Law 

gaiits.  Ill  an  inferior  officer  it  was  only  a  misdemeanor, 
but  it  appears  that  the  higher  judicial  officers  were  pun- 
ished at  the  will  of  the  king,  and  might  be  a  felony  or 
misdemeanor.  Although  it  is  said  by  Blackstone  that  one 
person  was  hung  for  this  crime,  during  the  reign  of  Ed- 
ward III,  yet  the  histoiy  of  the  crime  seems  to  indicate 
that  the  giving  and  the  accepting  of  bribes  was  openly 
and  notoriously  winked  at  by  the  government.  There  is 
one  strange  and  interesting  feature  of  the  history  of  this 
crime,  which  no  doubt  had  a  marked  influence  upon  our 
early  common  law.  The  Romans  regarded  the  right  to 
give  and  to  accept  a  bribe  as  a  kind  of  prerogative,  and 
we  learn  that  the  Roman  judge  was  at  liberty  to  accept 
a  certain  sum  per  annum  as  a  bribe  or  largess  in  consid- 
eration of  favorable  action  in  matters  before  him;  al- 
though the  law  put  strong  restrictions  upon  bribery  in 
general  yet  the  government  tacitly  pemiitted  the  ju- 
diciary to  accept  rewards,  as  fees,  not  exceeding  one  hun- 
dred crowns  a  year.  In  the  light  of  the  present  civiliza- 
tion, all  honest,  just  and  observing  persons  look  upon 
it  as  a  veiy  serious  offense,  and  under  our  statutes  is  pun- 
Later  commentators,  supported  by  to  put  a  stop  to  them.  A  minister 
judicial  cases,  however,  maintain  entrusted  by  the  king  to  recommend 
the  broader  doctrine,  that  any  at-  fit  persons  to  office  would  betray 
tempt  to  influence  an  officer  in  the  that  trust,  and  disappoint  that  con- 
discharge  of  his  official  conduct.  fidence,  if  lie  should  secretly  take  a 
whether  in  the  legislative,  executive  bribe  for  that  recominendation. " 
or  judicial  department  of  the  gov-  In  the  case  of  Rex  v.  Phymtom,  2 
crnment  by  the  offer  of  a  reward.  Lord  Raymond  1377,  the  court  holds 
or  a  pecuniary  consideration,  is  in-  that  it  was  an  offense  to  bribe  per- 
dictable  as  a  common  law  misde-  sons  to  vote  at  elections  for  members 
meanor.  of  a  corporation.    Many  other  cases 

In  the  case  of  Rex  v.  Vaughn  the  might  be  cited,  in  support  of  the 
(Icfciidant  was  charged  with  offering  general  proposition,  as  laid  down  by 
money  to  the  Duke  of  Graften,  First  the  later  text  writers  (above  men- 
Lord  of  the  Treasury  for  the  pur-  tioned).  In  deed  the  authorities 
pose  of  procuring  his  rccommenda-  are  all  one  way.  Neither  upon  prin- 
tion  to  the  crown  for  an  appoint-  ciplo  or  authority  can  the  crime  of 
ment  to  an  office.  Lord  Mansfield,  iiribery  be  confined  to  the  acts  to 
judge,  said:  "If  these  transactions  cfirrnpt  oflicors  concerned  in  the  ad- 
arc  believed  to  be  frequent,  it  is  time       in iniwl  ration  of  justice. 


Bribery  349 

ished  by  confinement  in  the  penitentiary.  Bribery  is  es- 
sentially a  crime  against  the  community — against  the 
goveniment;  in  this  it  saps  and  diverts  the  very  foun- 
tains of  justice.  The  primary  object  of  all  law  is  to  insure 
justice,  and  to  equalize  the  burdens  to  all  as  near  as  may 
be,  and  where  any  department  of  the  public  service  is  cor- 
ruptly influenced,  whereby  the  object  of  the  law  is 
thwarted,  the  corruptors  should  be  severely  punished. 

§  402.  The   thing   accepted   must   have   some   value. 

There  must  be  some  reward  or  the  hope  of  reward,  which 
causes  the  action  of  the  officer.  The  keeping  and  main- 
taining an  open  house  for  the  entertainment  of  legisla- 
tors, while  the  legislature  is  in  session,  does  not  constitute 
bribery,  although  of  an  insinuating  nature,  is  too  remote 
to  predicate  the  crime.*  Betting  with  another  that  he 
will  not  vote  for  a  certain  candidate  for  office,  in  order 
thereby  to  induce  him  to  vote  contrary  to  his  original 
intent,  is  bribery.^  So,  the  offering  of  food  or  drink  to 
voters  for  the  purpose  of  influencing  them  to  cast  their 
vote  for  particular  candidates,  in  particular  measures,  is 
bribery.  The  thing  done,  or  offered  must  be  of  such  a 
nature,  as  to  influence  or  have  the  natural  tendency  to 
influence  another  in  a  public  duty.^ 

§  403.  Offering  and  accepting  bribe,  substantive  crime. 
We  have  incidentally  mentioned  in  a  preceding  section 
that  one  who  offers  the  bribe  is  equally  guilty  with  the 
acceptor,  and  is  even  guilty  if  the  bribe  is  not  accepted. 
This  contention  involves  two  propositions.     1.     That  he 

4 — Eandell  v.  Evening  News  Assn.,  182  Mo.  391,  81  S.  W.  857,  103  A. 

97  Midi.  136,  56  N.  W.  361.  S.    E.    646.      Allegation    of    value. 

5 — Eoscoe's  Or.  Ev.  321;    People  State  v.  Howard,  66  Minn.  309,  68 

V.    Coffey,    161    Cal.    433,   119   Pax.  N.   W.    1096,   61   A.   S.   E.   403,   34 

901,  39  L.  E.  A.  (N.  S.)  704;  People  L.  E.  A.  178. 

V.  Morhan,  64  Cal.  157,  30  Pac.  620,  6— Com.  v.  Colloghan,  2  Va.  Cas. 

49  Am.  Eep.  700;  State  v.  Woodard,  460. 


350  Criminal  Law 

who  offers  a.  bribe  is  guilty  of  the  attempted  crime.''' 
2.  That  to  offer  the  bribe  is  an  independent  and  substan- 
tive crime.*  Each  of  these  theories  have  their  advocates, 
which  in  reality  are  but  two  different  roads  leading  to  the 
same  point.  It  is  agreed,  it  appears,  upon  all  hands,  that 
in  either  case  the  crime  is  but  a  misdemeanor  at  the  com- 
mon law,  and  that  the  punishment  in  the  one  case  would 
be  no  greater  than  in  the  other.  It  appears  to  be  clear 
at  the  common  law,  that  the  mere  offer  to  bribe  was  pun- 
ished, whether  there  was  an  acceptance  or  not,^  and  it  has 
been  also  adjudged,  that  if  an  officer  proposes  to  accept 
a  bribe,  that  the  party  acceding  to  such  is  not  guilty,  for 
in  order  for  him  to  be  guilty,  it  is  necessary  that  the  offer 
or  the  giving  was  done  wdth  the  corrupt  intention  of  in- 
fluencing the  action.^"  The  weight  as  well  as  the  pre- 
ponderance of  the  authorities  sustains  the  proposition 
that  an  offer  of  a  bribe  is  a  substantive  and  an  independ- 
ent crime. 

§  404.  Offering  to  bribe  another  to  control  his  vote. 

The  offer  to  bribe  another  in  order  to  control  his  vote  as 
an  elector,  has  been  held  to  come  within  the  meaning  of 
''Bribeiy"  as  a  common  law  offense.  The  definition  of 
the  old  text-writers  confines  the  offering  to  and  the  ac- 
cepting by  those  ofrtcers  concerned  with  the  administra- 
tion of  justice.  But  the  fiiiidaiiu'iital  ])riiiciple  underlying 
the  crime  is  the  tendency  to  corruptly  inlhience  anotlier  in 
the  perfo nuance  of  a  duty  he  owes  to  the  public  or  which 
may  affect  the  pu])lic  welfare.  Therefore,  every  citizen 
owes  the  duly  1o  the  ijulilic,  1h;H  as  an  elector,  he  will  let 
liis  vote  represent  liis  honest  conxiclions.^^    Soif  the  voter 

7— St.'it.'  \.   i;ilis,  .•(;;  N.  .1.  I,.   Kil',  Ki— () 'Hri.m  v.  Stntc,  7  Tex.  App. 

97  Am.  Dec.  71.'!,  note.  ]8H. 

8— U.  S.  V.   Warroll,  '2   l)u\\  ;!84;  11— Com.  v.   .M.II;il,.,  !)7  Poini  St. 

I'copio   V.    BumIi,    J    Hill    l.!.!;    Htatc  :il7;    ;!«»   Am.   Hi']).  8nH.     'Die  court 

V.  KcyH,  8  Vt.  07.  snys:   "Wo  jiro  of  tlic  nj)inioii  tluit 

9 — Hf'c   iiot<'   to  Stiito   V.   KIlis,  !)7  all    such   crimes,   as   affect   specially 

Am.   Dec.   7i;{,  .{.'i  N.  J.   L.  707.  piililic  society  are  indicl.able  at  the 


Bribery 


351 


accepts  the  gift,  then  both  parties  are  guilty.'^  Also 
where  an  offer  is  made  and  accepted  upon  the  promise 
or  condition  that  a  certain  thing  be  done,  it  is  immate 
rial  that  the  promise  is  never  complied  with,  by  the 
acceptor  of  the  bribe.'^^  If  the  offer  to  bribe  is  made  with 
the  cori'upt  intent  to  influence  the  action  of  the  party  to 
whom  it  is  made,  no  subsequent  repentance  or  attempt 
to  cancel  the  contract  or  the  offer  will  avail. ^* 


§  405.  Candidate  offering  to  fill  the  office  if  elected 
without  compensation.  The  rale  now  appears  to  be  well 
settled,  that  where  a  candidate  makes  a  promise  to 
voters,  that  if  elected,  that  he  will  perform  the  duties  of 
the  office  at  a  less  salary  than  that  allowed  by  law,  will 


common  law.  The  test  is  not  that 
Avhether  precedents  can  be  found  in 
the  books,  but  whether,  they  affect 
the  public  policy  or  economy.  It 
needs  no  argument  to  show  that  the 
acts  charged  in  these  indictments  are 
of  this  character.  They  are  not 
only  offenses  which  affect  society, 
but  they  affect  it  in  the  gravest 
manner.  An  offense  against  the 
freedom  and  purity  of  the  elections 
is  a  crime  against  the  nation.  It 
strikes  at  the  foundation  of  repub- 
lican institutions.  Its  tendency  is 
to  pervert  the  expression  of  the  will 
of  the  people,  in  the  choice  of  rulers, 
and  to  weaken  the  public  confidence 
in  elections.  When  this  confidence 
is  once  destroyed,  the  end  of  popu- 
lar government  is  not  distant. 
Surely,  if  a  woman's  tongue  can  so 
far  affect  the  good  of  society  as  to 
demand  her  punishment  as  a  com- 
mon scold,  the  offense  which  involves 
the  right  of  a  free  people  to  choose 
their  own  rulers,  in  the  manner 
pointed  out  by  law,  is  not  beneath 
the  dignity  of  the  common  law  nor 
beyond  the   power   to   punish.      The 


one  is  annoyance  to  a  small  portion 
of  the  body  public,  the  other  shakes 
the  social  fabric  to  its  foundation." 
See  State  v.  Jackson  (Me.),  40 
Am.  Eep.  342;  Com.  v.  Silsbee,  9 
Mass.  417;  Com.  v.  Hickey,  16  Mass. 
385;  Walsh  v.  People,  65  111.  58;  16 
Am.  Rep.  569;  State  v.  Pendy,  36 
Wis.  224;  17  Am.  Rep.  485;  State 
V.  Collins,  72  Mo.  13;  People  v. 
Thornton,  25  Hun.  555. 

12 — Greenl.  sec.  72,  and  cas.es 
cited. 

13 — State  V.  Lehman,  182  Mo. 
424,  81  S.  W.  1118,  103  A.  S.  R. 
689,  66  L.  R.  A.  400. 

14 — We  know  of  no  express  au- 
thority for  the  proposition  in  the 
text — that  is  no  adjudicated  bribery 
case,  where  the  exact  doctrine  has 
been  held.  The  same  is,  however, 
in  keeping  with  the  general  doctrine 
of  criminal  intent — the  act  accom- 
panied with  evil  or  corrupt  intent  of 
sufficient  magnitude  is  sufficient  to 
constitute  a  crime.  When  these  two 
elements  concur,  no  retrospection  or 
repentance  will  change  the  evil  done. 


352  Criminal  Law 

invalidate  his  election.^^  This  is  a  species  of  bribery, 
and  is  in  its  nature,  subversive  of  a  wholesome  public 
economy,  and  involves  a  high  degree  of  moral  turpitude. 
A  vote  given  for  a  candidate  for  a  public  office,  in  consid- 
eration of  his  promise,  in  case  he  shall  be  elected,  to 
donate  a  certain  sum,  or  other  valuable  thing  to  a  third 
party,  -whether  that  party  be  an  individual,  a  county  or  a 
corporation,  is  void.^^ 

§  406.  Offering  to  bribe  is  in  the  nature  of  an  attempt. 

An  offer  to  bribe,  while  in  the  general  nature  of  an  at- 
tempt, has  always  been  regarded  as  a  substantive  offense. 
In  this  respect  it  is  similar  to  the  crime  of  assaults, 
which  are  but  attempts  at  a  battery;  the  assault  itself 
being  a  substantive  crime.  Conspiracies  are  of  the  nature 
of  attempts,  also,  yet  a  conspiracy  is  a  substantive  of- 
fense. All  of  these  crimes  are  punished  not  because  of  the 
attempt  to  commit  some  other  crime,  but  because  the  acts 
which  constitute  them  are  crimes.^"' 

§  406a.  Soliciting  bribe.  Upon  the  general  principles 
of  the  common  law,  solicitation  to  commit  or  to  accept  a 
bribe,  which  falls  short  of  an  offer  to  bribe,  in  the  sense 
of  that  legal  terai,  would  not  constitute  a  crime. 

There  appears,  however,  to  be  authorities  both  sup- 
porting and  opposing.  In  any  event,  the  state  speaking 
through  its  law  making  body,  could  undoubtedly  legally 
make  such  reprehensible  conduct  a  crime.  The  cases  in 
the  note  will  give  the  opinions  of  the  courts." 

15— state   ex    rel.    Atty.    Gen.    v.  18— State  v.  Bowles,  70  Kan.  821, 

Collins,  72  Mo.  1.3,  37  Am.  Rep.  417.  69  L.  R.  A.  176;   Walsh  v.  People, 

16— State  ex  rel.  Newell  V.  Curdy,  6.5   111.   58,   16   Am.   Dee.   569;    Ru- 

36  Wis.   213,   17   Am.  Rep.   485.  dolpli  v.  State,  128  Wis.  222,  107  N. 

17— State  V.  Ellis,  33  N.  J.  L.  102,  W.  407,  116  A.  S.  R.  32;   People  v. 

97   Am.   Dec.   707;    Rex  v.   Vaughn,  nivson,    191    N.    Y.    227,    83    N.    E. 

4    Burr    2494;    Rex    v.    Pallnian,    2  976,    123    A.   S.    R.    597;    People   v. 

Camp  229;   People  v.  Markham,   64  .Taokaon,   191    N.   Y.   293,   84   N.   E. 

Cal.   157;   Burficld  v.  State,  14  Ala.  65,   14   Ann.  Cas.  243,   15  L.  R.  A. 

60.'!;  Stevens  Dig.  Cr.  L.  126.  (N.  S.)  1173. 


Bribery  353 

§  407.  Common  law  embracery  bribery  under  statutes. 

Embraceiy  at  the  common  law  was  where  there  was  an  at- 
tempt to  bribe  a  witness,  or  to  influence  a  juror  corruptly 
to  one  side,  by  persuasion,  promises,  entreaties,  money, 
entertainments  and  the  like.  A  person  embracing  was 
punished  by  fine  and  imprisonment.  The  juror  accepting 
money  for  his  decision  in  a  cause  in  which  he  sat  as  a 
juror,  was  punished  by  perpetual  infamy,  imprisonment 
for  a  year,  and  a  forfeiture  of  ten  fold  value. ^^  Both 
the  accepting  and  the  offering  the  bribe  were  misde- 
meanors. In  the  absence  of  statutes  the  common  law- 
may  be  resorted  to  for  the  punishment  of  such  action 
against  the  administration  of  justice.  This  offense  "Em- 
bracery" has  about  become  obsolete,  for  the  statutes 
of  the  several  jurisdictions  have  covered  the  same  com- 
pletely. In  the  main  the  principles  of  the  crime  of  brib- 
ery control  in  this.  It  is  just  as  reprehensible  for  one  to 
attempt  corruptly  to  influence  a  juror  or  a  witness,  as  it 
is  for  one  to  corruptly  influence  the  action  and  the  judg- 
ment of  the  judge.  The  administration  of  the  law  is 
corrupted  and  becomes  venal.  The  crime  of  bribery  at 
the  common  law  by  the  then  existing  state  and  condition 
of  society  seems  to  have  been  overlooked,  and  it  is  said 
that  at  one  time  in  the  history  of  the  English  judiciary 
that  the  crime  was  winked  at,  and  the  very  best  judges 
accepted  fees  for  decisions. 

19— state    V.    Ellis,    33    N.    J.    L.  R.   847.  32  L.  R.  A.  413;   Welsh  v. 

102,    97    Am.    Dec.    7o'7,    and    note;  People,  65  111.  58,  16  Am.  Rep.  569; 

Honeker  v.  Board  of  Education,  42  People  v.  Coffey,  161  Cal.  433,  119 

W.  Va.  170,  24  S.  E.  544,  57  A.  S.  Pac.  901,  30  L.  R.  A.   (N.  S.)   704. 


C.  L.— 23 


CHAPTER  XXII 

BUEGLARY 

§  408.  Definition.  §  413.  Collusion  with  owner  to  catch 

§  409.  Dwelling  house  defined.  burglar. 

§  410.  Common  law,  as  to  buildings       §  414.  Consent  obtained  by  fraud  or 

enlarged.  trick. 

§  411.  Breaking  defined.  §  415.  Entry. 

§  412.  Entry,    the    house    with  the       §  41 G.  As  to  the  intent. 

consent   of   the   owner,  not        §  417.  As  to  the  time. 

burglary. 

§  408.  Definition.  Burglary  is  the  breaking  and  enter- 
ing the  dwelling  of  another  at  night  time,  with  the  intent 
to  commit  some  felony  therein,  whether  felonious  in- 
tent be  executed  or  not.^  This  is  the  common  law  defini- 
tion. In  some  of  the  states,  under  the  definitions  thereof, 
it  is  not  necessaiy  that  the  intent  should  be  to  commit  a 
felony.  Breaking  and  entering  the  dwelling  house  in 
the  daytime  with  the  intent  to  commit  a  felony  therein 
in  many  of  the  states  is  burglary.  The  statutes  of  some 
of  the  several  jurisdictions  divide  the  offense  into  first 
and  second  degrees,  making  some  acts  burglary,  whicli 
were  not  so  at  common  law.*^ 

OF   THE   DWELLING 

§  409.  Defined.  At  the  common  law  the  building 
lirolv'cn  into  and  cntei'od  must  l)e  a  dwelling  house.  A 
dwelling  liouso  is  defined  to  l)e  a  house  where  some  per- 
son lives — his  liome — liis   Imhitalion      his   place   of  resi- 

1 — .1   Inst.  G.'J :      "He  that   in  tlio  fi^lony  witliin  llio  same,  wlicthor  his 

night    time    brcaketh    and    entercth  felonious  intent  be  executed  or  not, 

into  the  man.sion  house  of  another,  1  P.  0.  549. ' ' 

of    intent    to    kill    some    reasonable  2 — Harris  v.  People,  44  Mich.  305. 
fTcaiiire,   or    t<i   cfuninit  some   other 

.^54 


Burglary  355 

dence.  All  houses  in  a  common  enclosure,  used  in  con- 
nection with  the  main  dwelling  of  the  family,  are  dwell- 
ing houses  within  the  meaning  of  the  common  law,  and 
this  although  the  same  may  not  be  enclosed  by  a  fence. 
In  the  state  of  North  Carolina  it  is  held  that  a  smoke 
house  is  a  part  of  the  dwelling  and  a  breaking  and  enter- 
ing therein  for  the  purpose  of  committing  a  felony  is  a 
burglary.  All  houses  used  in  connection  with  the  living 
house — the  house  where  the  family  stay,  sleep  and  the 
like;  such  as  bed  rooms,  in  the  same  building  with  the 
family,  also  all  kitchens,  smoke  houses,  wood  sheds,  or 
shop  where  the  same  is  connected  with  the  living  house, 
come  within  the  definition  of  a  dwelling  house.  This 
offense,  at  the  common  law,  was  created  for  the  purposa 
of  giving  a  greater  security,  to  the  privacy  of  the  home, 
and  consisted  more  in  the  trespass  against  the  habita- 
tion than  against  the  property  of  the  occupant,  but 
under  modern  conditions,  the  necessity  has  arisen  for  the 
purpose  of  protecting  property.  The  common  law^,  by 
statutory  provisions  has  been  extended  so  as  to  reach  al- 
most all  character  of  buildings  in  which  valuable  prop- 
erty is  stored.  And  by  judicial  construction  and  ex- 
tension of  the  common  law  the  term  ''dwelling  house" 
has  been  made  to  cover  all  character  of  houses,  which  are 
in  any  way  connected  with  the  habitation  whether  they 
be  out  houses,  bams,  stables,  smoke  houses,  dining-rooms, 
laundry  rooms,  buildings  used  partly  for  living  purposes 
and  partly  for  business,  under  the  same  common  roof  or 
contiguous  thereto;  rooms  where  persons  sleep,  but  do 
not  otherwise  reside  therein,  as  in  hotels,  rooms  cut  off 
of  a  business  house  for  sleeping  purposes,  and  the  like. 
So,  also  the  rooms  occupied  by  tenants,  in  tenement 
houses,  where  there  is  one  common  opening,  to  the  main 
building,  the  apartments  occupied  by  each  person  or  fam- 
ily is  a  dwelling  house.  A  law  should  be  construed,  in 
accordance  w^ith  the  conditions  under  which  it  is  sought 
to  be  made  applicable,  that  is  in  reference  to  the  habits 


356  Criminal  Law 

and  customs  of  the  people  for  whom  it  is  made.  At  the 
common  law,  the  crime  of  burglarj^  was  confined  to  the 
common  inclosure  of  the  ''dwelling  house"  or  "manse" 
or  "curtilage."  At  the  time  the  crime  grew  into  exist- 
ence it  was  the  custom  for  the  people  to  surround  their 
places  of  abode  with  some  kind  of  impregnable  barriers, 
which  became  necessaiy  to  protect  their  homes  and  their 
families  from  the  intrusion  of  strangers,  and  hence,  fam- 
ily, sei^'ants,  cattle,  and  doniestic  animals  w^ere  kept  in 
the  same  conunon  enclosure,  so  the  breaking  and  enter- 
ing any  of  the  houses  maintained  in  this  enclosure  w^as 
a  trespass  upon  the  privacy  of  the  family,  whether  in 
the  immediate  part  occupied  by  it  or  not.  But  at  the  time 
we  live  a  veiy  different  condition  exists  as  to  the  customs 
and  habits  of  the  people  over  which  the  rule  of  the  com- 
mon law  is  to  be  extended.  In  the  rural  districts  the 
dwelling  house  immediately  occupied  by  the  family  is  en- 
closed by  a  fence,  with  the  purpose  of  beautifying,  rather 
than  for  protection,  and  especially  from  strangers.  And 
in  the  large  centers  of  population  the  enclosure  has  disap- 
peared altogether.  Hence  the  original  reason  for  the 
definition  of  a  dwelling  house  does  not  now  exist,  and 
the  courts  have  in  many  instances  extended  the  common 
law  so  as  to  cover  many  buildings  which  according  to 
the  common  law  would  not  come  w^ithin  the  purview  of 
burglar5\^ 

§  410.  Common  law,  as  to  the  building  enlarged  by 
statute.  In  llic  absence  of  coiislitulioiial,  or  legishitive 
])r()visi()iis  cliaiigiiig  the  conuiinn  law,  or  modifying  it,  the 

3 — See  following  aiitliorities  which  v.   .Jenkins,   50  N.   C.   4;i0 ;    State  v. 

will  bo  sullic-ient  for  the  investigator  Dan,    18    Nev,    345;    State    v.    Wil- 

to  satisfy  himself  from  his  own  re-  liams,  21  S.  E.  721;  Mitchcl  v.  Com., 

search.      Quinn    v.    People,   27   Am.  88  Ky.  349;   Ilahn  v.  State,  83  N. 

Rep.  87;    Hollister  v.  Com.,  60  Pa.  W.    674;    Curkendol    v.    People,    36 

St.   103;    Fuller   v.   State,   62   Miss.  .Mich.  3(l9,  4  Bla.  225;   Rex.  v.  Gih- 

48;  Pitcher  v.  People,  16  Mich.  142;  m-m,   2    East   P.   C.   508. 
State  V.  Wchcr,  56  S.  W.  893;  State 


Burglary  357 

common  law  will  govern  in  the  prosecution  of  this  offense. 

It  is  to  be  supposed  that  all  the  states  of  the  American 
Union  have  enlarged  the  common  law,  as  to  the  character 
of  the  buildings  which  may  be  burglariously  broken  and 
entered.  Where  the  common  law  has  been  changed,  the 
statute  must  be  followed. 

This  offense  is  committed  only  by  the  existence  of  five 
concurring  elements:  First,  there  must  be  a  dwelling- 
house.  This  being  the  provision  of  the  common  law,  but 
as  provided  by  statute,  as  shown  in  the  preceding  sec- 
tion, this  is  made  to  apply  not  only  to  the  dwelling  and 
appurtenances  and  curtilages,  but  to  almost  every  kind 
of  buildings.  Second,  there  must  be  a  breaking  of  the 
dwelling  or  building.  This  breaking  must  be  by  force, 
that  is  force  implied,  if  not  actual.  Third,  there  must  be 
an  entry  into  the  dwelling  house.  Fourth,  the  breaking 
or  the  entry  must  be  made  in  the  night  time.  Fifth,  no 
burglary  is  committed  except  upon  the  concurring  intent 
to  commit  some  felony  in  the  dwelling.  All  of  these 
five  elements  must  exist  and  concur.  It  is  not  necessary, 
however,  that  all  of  these  exist  at  the  same  instant  of  time, 
but  the  breaking  and  entry  and  the  intent  to  commit  a 
felony  must  accompany  each  other  in  continuous  se- 
quence. Entry  implies  force,  it  may  be  the  entry  of  the 
entire  body,  or  a  part,  or  by  the  employment  of  some 
inanimate  instrument  under  the  control  of  the  perpetra- 
tor. Whatever  may  have  been  the  early  conceptions  of 
the  crime,  the  law  undoubtedly  now  is,  that  the  intent  to 
commit  a  felony  is  sufficient,  accompanied  with  concur- 
rent breaking  and  entry.^  It  is  not  necessary  that  the 
felony  be  actually  committed. 

OF    THE    BREAKING 

§  411.  Defined.  At  the  common  law  a  breaking  was 
essential  to  make  the  offense.     Thus  the  entering  the 

5— See    full    note    "2,"    Am.    & 
Eng.   Ene.  L.,  page  667-8. 


358  Criminal  Law 

dwelling  house  of  another  without  fraud,  or  with  the  con- 
sent of  the  owner,  and  even  the  breaking  without  the  in- 
tent to  commit  some  felony  therein  would  not  constitute 
the  crime.  It  is  sufficient  to  open  a  door  when  closed, 
whether  locked  or  not;  the  lifting  the  latch  of  an  outer 
door;  pushing  a  door  open  though  unlocked;  breaking 
a  glass  in  a  window;  a  board  or  plank  from  the  building; 
breaking  a  glass  in  the  window  and  thrusting  the  hand 
through  the  opening;  or  any  other  means  whereby  the 
house  is  broken,  is  a  sufficient  breaking.  So,  also,  the 
breaking  need  not  always  be  an  actual  forcible  breaking, 
but  it  may  be  constructive.  Thus  as  making  a  previous 
arrangement,  with  one  lawfully  within  the  house,  to  let 
the  accused  in  the  inside,  by  leaving  the  outer  doors  or 
gates,  windows  and  the  like  open,  for  his  free  passage.  If 
the  consent  is  given  by  the  owner  or  the  legal  occupant, 
there  is  no  burglarious  breaking.  Any  fraud  peipetrated 
upon  the  owner,  whereby  the  accused  secures  an  en- 
trance, is  a  breaking  in  contemplation  of  the  law.  The 
law  neither  in  civil  or  criminal  jurisprudence  recog- 
nizes deception  or  dishonesty.  He  who  demands  justice 
must  first  do  justice.  Hence,  he  who  obtains  the  con- 
sent of  the  owner  to  enter  his  house  by  any  dishonest 
means,  cannot  claim  his  exemption  from  liability  for  a 
felony  committed  by  him  therein.  He  who  enters  the 
house  in  the  daytmie  and  conceals  himself  therein  unlil 
night  and  commits  a  felony  is  guilty  of  l)urglary.  Eiilcring 
the  nioutli  of  a  chimney  is  a  l)rcaking;  as  so  is  the  enter- 
ing through  a  door  which  always  stands  open,  for  the  pur- 
pose of  breaking  and  entering  an  adjoining  room.''    But 

6—3  Jn.st.  M,  1    Hiilo  P.  C.  5G2;  Stale,    'U    Ohio    «t.    livp.    1126,    32 

Ilex   V.   Russell,   1   Mood   C.   C.   377,  Am.   Kep.   376;    Furguson   v.   State, 

4  Bla.  226;   Rex  v.  Johnson,  2  East  r,2  Neb.  432,  72   N.  W.  590,  66  A, 

P.   C.    488;    State   v,    Rcid,    20    la.  S.  R.  512;  State  v.  Viorck,  23  S.  D. 

413;   Martin  v.   State,   1   Tex.   App.  KUJ,  120  N.  W.   lODS,   i;!9   A.  S.  R. 

525;  People  v.  VVIiik>,  153  Mich.  617,  KiK),  and  note. 

117  N.  W.  161,  15  Ann.  Ca.s.  927,  17  •    No  attempt  to  cite  authorities  for 

L.  R.  A.   (N.  H.)   1102;  Timmons  v.  each    of    the    varions   circumstances 


Burglary  359 

where  one  is  legally  in  the  house  is  not  guilty  where  he 
forcibly  breaks  and  enters  trunks,  drawers,  chests,  and 
the  like;  nor  is  the  breaking  the  outer  gate  leading  to  the 
main  house  a  breaking.  Anciently  it  appears  to  have 
been  a  burglarious  entry  to  have  entered  a  city  by  break- 
ing the  outer  walls  for  the  purpose  of  committing  a  fel- 
ony therein^ 

§  412.  Entering  the  house  with  the  consent  of  the 
owner  is  not  burglary.  The  breaking  must  be  some  part 
of  the  building,  which  leads  into  the  main  building  in 
which  the  felony  is  to  be  committed.  There  must  not 
be  any  interv^ening  space  between  the  place  of  entry  and 
the  main  building,  not  connected  by  a  common  and  con- 
tiguous roofing  or  walls,  if  the  purpose  be  to  commit  a 
felony  in  a  remote  apartment.^ 

As  we  have  already  said,  entering  the  house  with  the 
owner's  consent  and  then  afterwards  committing  a  fel- 
ony is  not  burglaiy,  but  the  party  is  guilty  of  the  felony 
actually  committed.  Where  the  proprietor  of  the  house 
receives  infomiation  that  a  burglary  is  to  be  attempted 
brings  other  persons  into  the  house  for  the  purpose  of 
detecting  the  accused  in  the  act  does  not  affect  the  guilt 
of  the  perpetrator.^  So,  where  one  conceals  himself  in 
a  chest  for  the  purpose  of  robbing  the  express  car,  it  is 
a  sufficient  breaking  and  entry  into  the  car  to  constitute 
burglary. 

under    which    a    breaking    may    be  156,  30  Am.  Eep.   126;   Johnson  v. 

made,  or  set  forth  in  the  text  has  State,    3    Tex.   App.    590;    State   v. 

been   made,     A   citation   of   a   few  Abbey,  109  la.   61,  80  N.  W.  225, 

cases   showing  the  meaning  of  the  77  A.  S.  R.  520,  46  L.  R.  A.  862; 

term,  "breaking,"  being  considered  Robertson  v.   State,   34   Tex.   Court 

sufficient.  Apps.  71,  29  S.  W.  40,  53  A.  S.  R. 

7—1  Hawks.  139 ;   4  Bla.  245.  701 ;  State  v.  Stickney,  53  Kan.  308, 

8— Martin  v.  State,  1   Tex.  App.  36  Pac.  714,  42  A.  S.  R.  284;  State 

525,  2  Russ  on  Crs.  9  Ed.  Tit.  Bur-  v^.  Currie,  13  N.  D.  655,  102  N.  W. 

glary.      People     v.     McCloskey,     5  875,  112  A.  S.  R.  687,  69  L.  R.  A. 

Park  (N.  Y.)  63.  405. 
9 — Spirden  v.  State,  3  Tex.  App. 


3(50  Criminal  Law 

§  413.  Collusion  to  catch  burglar.  Where,  therefore, 
there  is  a  collusion  of  the  owner  of  the  premises  and 
some  other  person,  whereby  it  is  arranged  that  the  said 
person  shall  pretend  in  good  faith  to  be  the  accomplice, 
and  aid  the  accused  in  the  breaking  and  entering  into  the 
premises,  for  the  purpose  of  apprehending  him  in  the  act, 
and  he  does  so,  this  is  not  a  breaking  and  entiy,  for  the 
reason,  that  ^'^  the  act  has  been  with  the  consent  of  the 
owner  or  the  person  occupying  the  premises.  Thus,  where 
the  accused  obtains  the  consent  of  the  owner  through 
some  kind  of  subterfuge,  for  the  purpose  of  entering  the 
building  in  order  to  commit  some  felony,  this  is  not  such 
a  consent  as  will  benefit  the  accused.  As,  where  parties 
intending  to  rob  raise  a  hue  and  cry,  whereby  the  con- 
stable is  induced  to  go  with  them  to  a  house,  and  the 
proprietor  opens  the  door,  and  entry  is  made  and  the 
constable  is  overpowered  and  the  house  is  robbed  by 
them,  this  is  burglary.  The  consent  being  obtained 
by  fraud,  this  is  no  consent  in  law,  and  the  entrance  by 
such  means  is  a  constructive  breaking  and  entrance." 

§  414.  Consent  obtained  by  fraud  or  trick  is  sufficient. 
Therefore,  as  we  have  seen  the  consent  of  the  occupant 
to  the  entiy  of  the  accused  to  the  house  is  a  defense  to 
the  charge  of  burglaiy,  although  the  intent  existed  to 
commit  the  crime  before  the  entry.  This  consent  though 
must  not  be  obtained  by  fraud,  subterfuge  or  intimida- 
tion, for  we  liave  seen  this  would  l)e  no  consent  in  law. 
Nor  would  the  consent  given  by  an  agent  or  servant  be 
such  a  consent  as  would  relieve  the  act  of  its  burglarious 
'character,  unless  the   agent  or  servant   had   authority, 

10 — Roberts  V.  Territory,  8  Okla.  11 — Com.    v.    Lowery,    158    Mass. 

326,  57  Pac.  840;  Speidcn  v.  State,  18;   Sumner  v.   State,  9  Tex.  App. 

.3  Tex.  App.  178,  30  Am.  Rep.  126;  396;  State  v.  .Tolinson,  93  Am.  Dec. 

Thcinipsnn  v.  State,  81  Am.  Dec.  364,  587;  .Jolmson  v.  Com.,  27  Am.  R^-p. 

18   Iml.  386;    State   v.   Stickney,  53  (>22;   Timinoius  v.  State,  .34  Ohio  St. 

Kan.  308,  42  A.  S.  R.  284;   Allen  v.  426,   32    Am.   Rep.   37(5;    Ni.-liols   v. 

State,  91  Am.  Doc.  477,  40  Ala.  384.  State,  32   N.   W.  543. 


Burglary  361 

either  express  or  implied,  by  virtue  of  the  employment 
to  give  consent.  If,  from  the  nature  of  the  employment 
it  could  be  gathered,  that  the  consent  of  the  agent  is  the 
consent  of  the  occupant,  then  it  would  be  a  defense.^''  So, 
also,  the  wife  of  the  occupant  may  be  regarded  as  the 
agent,  possessing  sufficient  authority  by  reason  of  the 
relations  existing  between  her  and  the  husband,  to  give 
consent,  where  there  is  no  collusion  between  her  and  the 
accused  for  some  unlawful  purpose. ^^  So,  again,  the  en- 
try may  be  by  fraud,  as  where  the  entry  is  made  through 
an  opening  not  usually  used  for  the  purpose  of  entry,  as 
where  the  accused  enters  through  an  opening  in  the  sec- 
ond story  of  building  and  the  same  is  reached  by  a  lad- 
der; ^*  or  the  entrance  through  a  hole  left  under  a  mill; 
or  an  opening  in  a  crib  used  for  throwing  in  corn,  hay 
and  the  like.^^  Nor  has  one  the  right  to  enter  into  the 
house  of  the  occupant,  simply  because  of  his  employment 
as  a  servant,  unless  the  right  follows  from  the  nature  of 
the  employment. ^^ 

§  415.  Of  the  entry.  Before  a  conviction  can  be  had 
for  a  burglary  an  entry  must  be  proven.  A  breaking 
without  an  entry  is  not  sufficient.^''  Thus,  where  the  ac- 
cused breaks  the  door  and  the  proprietor  throws  his 
money  to  him  on  the  outside,  this  is  not  burglary.  An 
entry  is  sufficient  if  the  goods  are  withdrawn  by  thrust- 
ing the  hand  in  the  opening,  or  with  a  stick  or  any  other 
means  an  attempt  is  made  to  commit  the  felony.  Thus, 
to  thnist  a  gun  through  an  opening  made  for  the  pur- 

12— state    V.    Abbey,    109    Iowa  16— Hild   v.    State,    67    Ala.    69; 

61,  80  N.  W  225,  77  A.  S.  E.  520.  Morrow  v.   State    (Tex.),   25   S.  W. 

13— Forsythe  v.  State,  6  Ohio  St.  284. 

19.  17— Walker  v.  State,  63  Ala.  49, 

14— Eodgers  v.  State,  43  Tex.  406;  35  Am.  Rep.  1;  Gaddie  v.  Com.,  117 

Knotts   V.   State    (Tex.),   32   S.   W.  Ky.   468,   78   S.  W.   162,   111  A.   S. 

532.  R.  259;  State  v.  Hayes,  105  Mo,  76, 

15— Painter  v.  State  (Tex.),  9  S.  24  A.   S.   R.   360. 
W.  774. 


362  Ckiminal  Law 

pose  of  committing  a  felony  therein,  is  an  entry.  The 
entry  need  not  immediately  follow  the  breaking,  but  as 
pre\dously  mentioned,  the  breaking  and  the  entiy  must 
accompany  the  intent  and  each  other  in  continuous  se- 
quence.^® The  breaking  and  the  entry  may  accompany 
each  other  as  simultaneous  acts,  being  combined  together, 
as  the  breaking  may  be  committed  in  the  daytime  and  the 
entry  at  night,  or  the  breaking  made  in  the  night  time  and 
entry  in  daytime. 

§  416.  As  to  the  intent.  At  common  law,  there  must 
be  a  felonious  intent  to  commit  a  felony  in  the  dwelling- 
house — an  inhabited  house.  The  intent  to  commit  any 
felony  is  at  common  law  sufficient,  but  it  is  not  mate- 
rial that  the  felony  in  fact  be  consumimated ;  a  break- 
ing and  entr}^  is  sufficient.  Breaking  and  entering  a 
dwelling-house  for  the  purpose  of  indulging  in  adulter- 
ous intercourse,  is  not  burglary  for  the  reason  that  adul- 
ter}^ at  common  law  was  not  a  crime,  not  even  a  misde- 
meanor. Under  the  statutes  of  the  United  States  adul- 
teiy  is  a  felony.^^  The  intent  is  to  be  gathered  from  all 
the  circumstances  of  the  case,  such  as  discovering  the 
goods  stolen  in  the  possession  of  the  accused.  The  dis- 
covery of  burglar's  tools  in  the  possession  of  the  accused, 
has  more  or  less  probative  force.  There  is  some  diversity 
of  opinion  whether  one  commits  burglary  by  entering  a 
house  with  the  puipose  of  committing  a  felony  therein, 
fails  of  the  accomplishment  of  his  object,  because  he  finds 
notliiiig  upon  wliich  to  commit  the  felony,  lie  intended.'^" 
Breaking  and  entry  under  some  claim  of  right  to  the  prop- 
erty therein  is  not  burglary,  nor  would  it  be  if  the  prop- 
is — The  following  cases  taken  McNiiir  v.  State,  53  Ala.  453; 
from  note.  People  v.  Richards,  2  Mitchcl  v.  State  (Tex,),  24  S.  W, 
A.   S.    R.,   note,   page  388;    Com.   v.       280. 

Glover,  111  Mass.  395.  20— State  v.   I?yan,   12  Nev.  401; 

19— State  V.  Cooper,  Ifi  Vt.  551;        MeCoiirf.   v.    People,   G4    N.   Y.   583. 


Burglary  363 

erty  sought  to  be  stolen  was  of  such  a  nature  that  larceny 
could  not  be  committed  thereof.^^ 

§  417.  At  the  common  law  the  breaking  and  entry  must 
be  at  night  time.  But  as  we  have  seen  in  another  page, 
the  accused  might  commit  the  offense  by  concealing  him- 
self in  the  house  in  the  daytime,  with  the  intention  to 
commit  a  felony  therein  in  the  nighttime.  It  is  not  essen- 
tial that  the  intended  felony  be  committed,  so  if  the  entry 
and  the  breaking  was  in  the  night  time  the  felony  in- 
tended may  be  committed  in  the  daytime. 

At  the  common  law  the  night  began  one  hour  after 
sundown  and  continued  for  one  hour  before  sunrise.  It 
is,  perhaps,  more  correct  to  say  that  if  there  was  suffi- 
cient light  to  discern  a  man's  face  it  was  not  considered 
night.^^  Under  the  various  statutes  the  crime  may  be 
committed  in  the  daytime.  The  time  in  which  the  crime 
may  be  committed  is  defined  by  statute  usually. 

21 — State  V.  Lymus,  26  Ohio     St.  ity  did  not  define  night  time  as  one 

400;    State  v.  Bullett,   64  N.   J.  L.  hour  after  sunset  and  one  hour  be- 

379.  fore    sunrise,    but   fixed   it   at    such 

22 — Williams    v.    State,    46    Ga.  time    as    there    was    not    sufficient 


212;  Wood  v.  State,  46  Ga.  322 
HoUister  v.  Com.,  60  Pa.  St.  103 
State    V.    Leaden,    35    Conn.    515 


light  to  discern  a  man's  face;  but 
this  did  not  extend  to  moon  light, 
or  any  artificial  light,  except  light 


Thomas  v.  State,  6  Miss.  20;   State  caused    by    the    sun.      Klieforth    v. 

V.    Seymore,   36   Me.   225;    State   v.  State,    88    Wis.    163,    43    A.    S.    R. 

Ruby,  61  la.  86;  People  v.  Targart,  875,   and   note.      Michaels  v.   State, 

43    Cal.    81.      The   night   time,   con-  68  Wis.  416,  60  Am.  Rep.  870. 
templated  according  to  this  author- 


CHAPTER  XXni 


CONSPIEACIES 


Skill  of  the  workingman  and 

labor  is  capital. 
Combination    of    dealers    to 

lower  or  to  raise  prices  is. 
Combinations  to    effect  legal 

ends  by  illegal  means,  is. 
Allegation  of  indictment. 
Same  continued. 
Illegal  acts  by  illegal  means, 

indictment. 
Allegations  where   the   crime 

has  been  consummated. 
Rule  as  to  principals  and  ac- 
cessories. 
Where  there  are  two  persons 

to  the  unlawful  agreement. 
Where  the  minds  are  inflamed 

by  speeches. 
Acts  and  declarations. 
Agreements   made   before   or 

after    consummation. 
Making  a  prima  facie  case  of 

conspiracy,  old  rule. 


§  418.  Conspiracy  is  not  an  attempt  to  commit  a  crime. 
We  have  stated  in  another  chapter  that  the  offense  of 
conspiracy,  is  an  exception  to  the  general  rnle,  that  a  mere 
intent  to  commit  a  crime,  is  not  criminal.^  Some  writers 
claim  that  conspiracies  are  a  species  of  attempts.    In  this 


418. 

Conspiracy  is  not  an  attempt 
to  commit  a  crime. 

§432. 

419. 

Conspiracies,    as    to   acts   in- 
dictable per  se. 

§  433. 

419a 

..  No  strict  rule  constituting. 

§434. 

420. 

Are  substantive  offenses. 

421. 

Conspiracies  merged  into  the 

§435. 

consummated  offense. 

§436. 

422. 

Defined. 

§437. 

423. 

Mere  willingness  and  the  in- 

tent do  not  constitute. 

§  438. 

424. 

Conspiracies    to    defraud   an- 

other of  his  property. 

§  439. 

425. 

Partners    may    be    guilty    of 

conspiracy. 

§440. 

42G. 

Some  other  circumstances,  the 

offense  may  be  committed. 

§441. 

427. 

To  satisfy  ill-will. 

428. 

Agreements    to    commit    acta 

§442. 

of  immorality,  conspiracies. 

§443. 

429. 

To  defeat  public  justice. 

430. 

Of  and  concerning  the  wages 
of  workingmen. 

§444. 

431. 

A  boycott  is  an  unlawful  con- 
spiracy. 

1— State  V.  Young,  12  N.  C.  357, 
17  Am.  Dec.  571 ;  Crump  v.  Com., 
54  Va.  927,  6  8.  E.  620,  10  A.  S.  R. 
805;  State  v.  Stuart,  59  Vt.  273,  9 
Atl.  550,  59  Am.  Rep.  710.  Foreign 
inHiininfo  companies  doing  business 
in  a  state  cuinot  conHi)ire  or  agree 


together  to  withdraw  from  the  state 
in  a  l)ody  and  cancel  their  policies 
to  tlie  detriment  of  the  laws  under 
which  they  arc  doing  business. 
State  V.  Assurance  Co.,  251  Mo. 
278,  158  S.  W.  (■))(),  1(5  L.  R.  A.  (N. 
S.)  95.'). 

;;(;-4 


Conspiracies  365 

reasoning  there  seems  to  be  an  inconsistency.  A  mere 
intent  to  commit  a  crime  coupled  with  an  overt  act  to 
commit  it  is  the  gist  of  the  attempt.  An  attempt  can  be 
perpetrated  by  a  single  individual,  or  by  many  in  conjunc- 
tion. But  a  conspiracy  is  the  corrupt  intent,  coupled  with 
an  agreement  to  commit  a  crime  or  do  a  lawful  act  by 
criminal  means,  by  two  or  more  persons.  The  intent  and 
agreement  of  two  or  more  persons  is  the  gravamen  of  this 
offense  and  the  crime  is  complete  when  the  intent  and 
agreement  of  two  or  more  persons  concur.  In  an  attempt 
the  overt  act  is  the  essential  element  of  the  offense,  hence 
we  conclude  that  a  conspiracy  to  commit  a  crime  is  not 
an  attempt  to  commit  it.  An  unlawful  intent  in  the 
absence  of  an  overt  act  is  not  an  attempt  to  commit  a 
crime.  But  an  unlawful  intent  by  two  or  more  in  the 
absence  of  an  overt  act  is  criminal  when  such  intent  is 
held  in  common.  A  conspiracy  in  a  criminal  sense  is  an 
independent  and  substantive  offense,  as  much  so  as 
murder,  rape  or  robbery  and  has  independent  and  partic- 
ular elements.  At  the  common  law  a  conspiracy  did  not 
require  an  overt  act,  but  by  statutes  in  many  of  the  states 
an  overt  act  or  attempt  to  carry  out  the  purpose  of  the 
unlawful  agreement  must  be  proved  independently.^ 
Where  such  is  the  case  a  conspiracy  may  be  an  attempt 
to  commit  an  offense  and  for  legal  reasons  conspiracy 
might  be  formed  having  for  its  object  the  attempt. 

"^§  419.  Conspiracies  as  to  acts  indictable  per  se.    It 

seems  that  no  comprehensive  definition  can  be  given  to  in- 

2— People  V.  Strauch,  240  111.  60,  112  Md.   83,   75  Atl.   631,  21   Ann. 

88  N.   E.   155,   130   A.   S.    R.   255;  Cas.  28;  People  v.  Flack,  125  N.  Y. 

Kniglit  V.  Miller,  772  Ind.  27,  87  N.  324,  26  N.  E.  267,  11  L.  R.  A.  807; 

E.  523,  18  Ann.  Cas.  1146;   Frank-  Dill  v.  State,  35  Tex.  App.  241,  33 

lin  Union  No.  4  v.  People,  220  111.  S.  W.  126,  60  S.  W.  126,  60  A.  S.  R. 

77  N.  E.  176,  110  A.  S.  R.  248,  4  37,  note;    State  v.  Stewart,  50  Vt. 

L.    R.    A.    (N.    S.)    1001;    Ware   v.  273,  9  Atl.  550,  50  Am.  Rep.  710; 

United  States,  154  Fed.  577;  84  C.  Randall  v.  Londorf,  126  Wis.   147, 

C.  A.  503,  12  Ann.  Cas.  233,  12  L,  R.  105  N.  W.  5,  Ann.  Cas.  371,  3  L.  R. 

A.   (N.  S.)    1053;   Garland  v.  State,  A.  (N.  S.)   470. 


366  Criminal  Law 

elude  in  general  terms,  all  cases  of  conspiracy.  Many  acts 
committed  by  tlie  joint  agreement  and  efforts  of  two  or 
more  persons  might  be  with  unlawful  means  and  yet  not 
criminal.  There  can  be  no  doubt,  when  the  object  is  to 
commit  some  crime  or  some  act  indictable  per  se.  Prac- 
tically, however,  the  question  presents  some  difficult}'- 
when  the  object  is  to  commit  some  act  not  in  itself  in- 
dictable or  to  do  some  legal  act  with  illegal  means.  Gen- 
erally we  may  say  all  those  agreements  by  two  or  more 
persons  by  concerted  action  to  commit  a  crime ;  to  do  any 
act  the  tendency  of  which  is  to  prejudice  the  public  or 
disturb  the  public  peace;  to  do  an  act  the  tendency  of 
which  is  to  subvert,  retard  or  cause  the  miscarriage  of 
public  justice;  to  do  acts  in  restraint  of  trade  or  which 
impede  or  destroy  or  tend  to  destroy  competition  in  trade ; 
to  coerce  or  oppress  an  individual  in  the  lawful  exercise 
of  any  right  by  threats,  intimidations  or  violence;  to  do 
acts  that  will  prejudice  the  public  health  or  the  health 
of  an  individual;  to  do  acts  the  tendency  of  which  is  to 
corrupt  public  morals  or  to  do  that  which  affects  the  pub- 
lic weal  injuriously,  are  criminal  conspiracies,^ 

§  419a.  No  strict  rule  constituting.  In  the  haze  of  the 
ancient  common  law,  it  is  donl)trully  announced  that  crim- 
inal conspiracies  did  not  exist,  except  where  the  conspir- 
ators contemi3late(l  the  ullimale  connnission  of  a  crime — 
however,  this  may  be,  the  principle  has  so  exjianded  that 
it  covers  nearly  eveiy  phase  of  agreements  which  have  for 
their  ultimate  result  an  injury  to  the  individual  or  the 
public.    It  is,  in  reall1>,  llie  malignity  of  llie  minds  and 

3_U.  H.  V.  Goldberg,  7  Hiss.  175;  Hiddlc,     ]2     Mimi.     1G4;     Spies    v. 

4   Liiwson's   crimiiijil   defenses   5G5;  Pociple,  ."{  Am.  St.  Kep.  ."{20;  122  111. 

Corn.  V.  Hunt,  4  Met.  Ill;   38  Am.  1;   Stnte  v.  Oliio  R.  R.  Co.,  23  Ind. 

Dec.    346;     State    v.    Williams,    30  3G3;    Beal    v.    State,    15    Ind.    378; 

Conn.  500;  .Tolmson  v.  State,  26  N.  Kstoa  v.  Carter,  10  Iowa  400;  State 

.r.    \j.    ."'.l.'S;    IInit4'd    States    v.    Mun-  v.    K'l.uiiv,    I'J   Conn.    KU  ;    Ilayne   v. 

s<di(T,  7  Diss.  400;  State  v.  Norton,  Coin.,  'S.:   I'a.  St.  .'..'.l  and  .Ui.S;  Slo- 

26   N.   .1.    L.    33   and   34;    State    v.  m.r  v.  l'co])lc,  LM  111.  70. 


Conspiracies  367 

motives  of  the  conspirators,  which  determine  the  crimi- 
nality. It  is  the  wrong  embedded  in  the  contemplated  act. 
The  individual  may  harbor  an  intent  to  do  a  criminal  act, 
but  no  harm  can  come  of  this,  until  he  makes  the  attempt, 
or  actually  commits  the  act.  There  are  a  few  offenses 
which  can  be  committed  only  by  the  conjoint  acts  of  the 
participants;  such  as  dueling,  incest,  bigamy,  sodomy, 
adultery,  and  fornication,  and  the  like.  But,  the  contem- 
plated act  is  the  ultimate  crime,  and  the  act  of  the 
immediate  participants  is  essential  to  the  wrong;  if,  how- 
ever, two  or  more  persons  agree  to  aid  in  any  of  the  crimes 
of  this  character,  the  ultimate  end  being  to  violate  the 
law,  such  agreements  constitute  the  conspiracy.  It  is  im- 
possible to  detemiine  by  a  strict  rule,  what  acts  will 
constitute  a  criminal  conspiracy.  Conditions,  and  the  sen- 
timents of  the  people,  will  determine  to  a  great  extent,  the 
comparative  wrong  in  any  given  case;  for  there  is  no  well 
defined  standard  by  which  the  wrong  may  be  estimated. 
This  standard  was  furnished  by  the  common  law,  where 
the  agreement  was  to  commit  a  crime.  But  the  recent  de- 
velopments in  commerce,  and  the  relative  rights  of  indi- 
viduals have  made  many  such  act  reprehensible,  because 
of  the  tendency  to  injure  the  individual,  as  well  as  to 
corrupt  the  community.  The  enoraiity  of  any  act  or 
series  of  acts,  is  dependent  upon  the  existing  conditions 
of  society,  and  upon  the  individual  views  of  the  courts 
and  judges  in  many  instances. 

§  420.  Conspiracies  are  substantive  offenses.  A  con- 
spiracy is  a  substantive  offense  at  common  law,  and  is 
complete  whenever  the  corrupt  agreement  is  complete. 
When  the  consummated  offense  is  either  a  misdemeanor 
or  felony  the  conspiracy  is  punished  as  a  misdemeanor.'^ 

4 — State  V.  Murray,  15  Me.  100 ;  that  it  is  supposed  that  a  conspiracy 

Com.  V.  Gillespie,  7  Serg.  &  E.  469,  to  commit  a  crime  is  merged  when 

10   Am.   Dec.   475;    People   v.   Mat-  the    conspiracy    is    executed.      This 

thew,   4   Wend.   265;    21   Am.   Dec.  may  be  true  when  the  crime  is  of  a 

122.      In   this   case    the    court    says  higher  grade  than  the  conspiracy  and 


368  Criminal  Law 

To  complete  this  offense  it  is  not  required  that  any  act  be 
done  toward  eanying  into  effect  the  agreement.^  It  is 
not  required  that  any  person  or  the.  public  be  wronged 
or  injured.  The  offense  is  the  unlawful  and  wicked  de- 
sign to  do  something  that  will  injure  someone,  or  the 
public;  to  oppress,  coerce,  or  deprive  some  one  or  the 
public  of  some  right,  privilege  or  immunity.  The  con- 
spiracy is  one  thing  and  the  consummation  of  the  agree- 
ment is  another.^  Proof  of  the  conspiracy  is  comi)h4o 
when  it  is  shown  that  the  agreement  and  combination 
has  been  entered  into."'^ 

§  421.  Conspiracy  is  merged  into  the  consummated  of- 
fense. AVlien  the  object  of  the  conspiracy  is  to  perpe- 
trate a  felony  the  conspiracy  is  merged  into  the  higher 
offense.  This  is  only  true  when  the  object  of  the  con- 
spiracy is  consummated.  If  the  object  is  to  commit  a  mis- 
demeanor, or  if  the  result  of  the  conspiracy  amounts  to 
a  misdemeanor,  then  there  is  no  merger.®  The  mere  com- 
bination and  agreement  is  of  itself  a  misdemeanor,  and 
where  two  crimes  are  of  the  same  grade,  there  can  be  no 

the  object  of  the  conspiracy  is  fully  41 -1;   Isaacs  v.  State,  -48  Miss.  234; 

accomplished.     But  a  eonsi)iracy  is  State  v.  Strow,  42  N.  H.  392;  State 

only    a   misdemeanor   and   when   its  v.  Ritchie,  9  N.  J.  L.  293, 
object   is  only   to   commit   a   niisde-  7 — King   v.   Gill,   2   Barn   &   Old. 

meanor    when    two    crime"    are    of  204  .lolmson  v.   State,  3   Tex.   App. 

equal   grade   there   can  be   no   legal  590;    JStalo   v.    Noyos,   25   Vt.   415; 

technical  merger.  Ileina  v.  Com.  91  Pa.  St.  145;  Cora. 

5 — U.    S.    V.    Donan,    11    Bletch  v.  McKisson,  8  Serg.  &  R.  420;  Com. 

168;    State    v.    Cawood,    2nd    Stew.  v.    Bli.ss,    12    I'hila.    580. 
360;  Dill  V.  State,  35  Tex.  App.  240,  8— State    v.    Noyes,    25    Vt.    415, 

33  S.  W.  126,  60  A.  S.  R.  37;  People  421;  State  v.  Maylwrry,  48  Mo.  218; 

V.    Richards,    1    Mich.    216,   51    Am.  Klkins    v.    People,    28    N.    Y.    177; 

Dec.  75,  and  note  82;  Ware  v.  IT.  S.  Com.    v.    Kingberry,    5    Mass.    105; 

1.54,  Fed.  577,  84  C.  C.   A.  503,   12  IVoj)le    v.    Uidiards,    1    Mich.    216; 

Ann.  Cas,  2.13,  12  L.  R.  A.   (N.  S.)  .same  51  Am.  Doc.  75;  Com.  v.  Good- 

]053;  suite  v.  Sitter,  57  Conn.  461,  hiit«,  2  Met.  19.!;  Elsey  v.  State,  47 

18  Atl.  782,  14  A.  S.  R.  121.  Ark.  572;    lloyt  v.   People,  140   111. 

6— Lanningham  v.  Stale,  49   Ind.  588,  30  N,  E.  315,  16  L.  R.  A.  239. 

186;    State   v.   Blackman,   5   Har.  &  Crimoa  of  oqnal  grade  no  merger. 
J.  317;  Alderman  v.  People,  4  Mich. 


Conspiracies  369 

merger  in  a  legal  sense.^  If  the  design  is  to  perpetrate 
a  murder,  and  murder  is  committed,  or  any  felonious 
oft'ense  growing  out  of  it  as  the  probable  and  natural 
consequences  of  such  conspiracy,  then  the  lesser  crime, 
the  conspiracy,  is  merged  into  the  higher.  The  rule  an- 
nounced here  is  denied  by  respectable  authorities,  but 
the  weight  of  authority  and  reason  clearly  establish  the 
correctness  and  justness  of  the  doctrine.^*'  All  the  mem- 
bers of  a  conspiracy  are  guilty  as  principals  or  are  at 
least  punished  equally.  No  salutaiy  object  could  be  ef- 
fected by  convicting  the  conspirators  for  both  offenses. 
All  those  who  enter  into  agreements  and  confederate  to- 
gether for  the  pui'pose  of  committing  some  illegal  act, 
each  is  responsible  for  the  acts  of  the  other,  if  done  in 
furtherance  of  the  common  design.  All  are  guilty  and  it 
can  make  no  difference  where  one  takes  no  part  in  the 
actual  commission  of  the  crime,  if  he  agreed  to  and  in- 
tentionally entered  into  the  conspiracy.^^ 

§  422.  Conspiracy,  definition,  description,  etc.  A  con- 
spiracy cannot  be  accomplished  by  one  person.  Nor  in 
those  cases,  where  from  their  nature,  it  requires  two 
persons  to  commit  the  offense. ^^  A  husband  and  wife  can- 
not be  convicted  of  a  conspiracy,  because  in  legal  contem- 
plation they  are  one — to  the  extent  at  least,  that  the  act  of 
the  wife  is  supposed  to  be  the  act  of  the  husband.    In  legal 

9— state  V.  Murphy,  6  Ala,  765;  A.  S.  E.  320.     In  this  case  the  doc- 

41  Am.  Dec.  79;  People  v.  Richards,  trine  of  the  text  is  fully  and  amply 

1    Mich.    216;    U.    S.    v.    Martin,    4  discussed. 

Cliff.    156;     Com.    v.    Walker,    108  12— Miles  v.  State,  58  Ala.  390 

100;    People    v.    Mather,    4    Wend.  Shannon  v.   Com.,   14  Pa.   St.  226 

(N.    Y.)    215,    21    Am.    Dec.    122;  Harris  v.  Com.,  113  Va,  746,  73  S 

State  V.  Sitter,  57  Conn.  461,  18  Atl.  E.   561,   38   L.   K.   A.    (N.   S.)    458 

782,  14  A.  S.  K.   121.  This  case  also  holds  that  the  combi 

10 — Johnson  v.  State,  29  N.  J,  L.  nation    of    assurance    companies    to 

453.  regulate  rates  is  not  a  crime  of  con- 

11 — Spies  V.  People,  122  111.  1,  3  spiracy.    People  v.  Richards,  67  Cal. 

Mass.  309;  State  v.  Muney,  15  Me.  412,  7  Pac.  828,  56  Am.  Rep.  716. 
C.  L.— 24 


370  Criminal  Law 

language  the  wife  is  presumed  to  be  under  the  coercion 
and  restraint  of  the  husband."  Nor  would  an  agree- 
ment between  two  persons,  one  of  which,  is  lunatic,  non 
compos  mentis  or  under  the  age  of  discretion,  constitute 
a  conspiracy,  for  the  very  evident  reason  such  parties 
are  incapable  of  forming  a  criminal  intent.  The  con- 
spiracy to  accomplish  the  unlaAvful  design,  must  be  in- 
tentionally and  corruptly  formed.  An  agreement  to  share 
in  the  booty  or  the  fruits  of  a  crime,  made  after  the 
execution  of  the  conspiratous  design,  will  not  make  such 
parties  agreeing,  guilty  as  a  conspirator. 

§  423.  The  mere  willing-ness,  and  intent  does  not  con- 
stitute. The  mere  intent  and  willingness  to  engage  in  a 
common  design,  for  doing  an  act,  which  if  attempted  to  be 
carried  out  would  be  a  conspiracy,  Avill  not  constitute  a 
conspiracy,  unless  such  intent  is  embodied  into  an  agree- 
ment. The  minds  of  the  conspirators  must  meet  in  solemn 
compact,  to  engage  in  the  common  design.^*  It  is  not 
required  that  the  means,  by  which  the  object  designed 
to  be  accomplished,  be  agreed  upon.  It  is  sufficient  that 
the  minds  of  the  conspirators  meet  on  a  common  level 
and  with  a  common  purpose,  and  witli  the  design  of  reach- 
ing a  common  end.  No  overt  act  is  necessaiy  to  show  the 
intent.    The  agreement,  however,  need  not  be  an  express 

13 — If,  however,  a  man  marry  a  App.  375.     The  assent  must  be  real 

woman  under  an  assumed  name  it  and  not  a  feigned  agreement    There 

was  held  that  if  it  was  done  for  the  nmst  be  a  concert  of  two  or  more 

])urpose    of    defrauding   the    person  niiiuls   in   Ihe   thing  done,   or  to  be 

wliose  name  was  assumed,  that  tlioy  done.       'Vhry     imist    I'oinc    together 

would  1)C  guilty  of  conspiracy.     Rex  witii    real    motives    and    a    common 

V.   Kobinson,   1    Leach   Cr.   Cas.   37;  jnirpose.      Slate    v.    Wanset,   2    Mo. 

r<-r.i)le    V.    Miller,    82    Cal.    107,    22  Aj.p.  29.'3.     Tlic  parties  may  agree  in 

Tac.   934;    State   v.   Clarke,   32   Atl.  intent  and  yet  ncitlier  coml)in('  and 

310.     If  the  husband  and  wife  and  confederate.    Stc  this  case  for  a  full 

third   jiartips  ronsfitutc  tlie  combin-  discussion  of  the  intent  indepeiidiiil 

ing   persona  the   wife  and  husband  of  agreement.     Cox  v.  State,  8  Tex. 

are  not  reli>as<.d  of  liability.  Apl>.  •■'-O.'i ;    Loggiiis  v.  State,  8  Tex. 

14— Woodworth  v.  State,  20  Tex.  Apj).  434-442. 


Conspiracies 


371 


contract,  an  implied  agreement  is  sufficient. ^^  Nor  is 
it  necessary  that  the  conspirators  know  each  other,  nor 
that  they  know  of  the  particular  part,  of  the  common 
design  or  plan,  each  is  to  execute;  nor  what  means  each  is 
to  use  in  executing  his  assigned  part  of  the  conspiracy.^^ 

§  424.  Conspiracies  to  defraud  another  of  his  property, 
etc.  It  is  well  settled  that  agreements  and  combinations 
entered  into  by  two  or  more  persons  for  the  purpose  of  de- 
frauding another  of  his  property,  is  an  indictable  of- 
fense.-^''' There  seems  to  be  some  doubt  whether  this 
applies  to  real  estate.^®  But  where  the  object  is  to  de- 
fraud another  of  his  personal  property,  there  is  no  doubt. 
It  seems  that  where  the  object  of  the  conspiracy  is  to 
make  a  mere  trespass  on  the  property  of  another,  that 
such  conspiracy  is  not  indictable.  The  rule  seems  to  be 
general  and  universal,  that  where  the  object  is  to  cheat. 


15— U.  S.  V.  Doyle,  6  Saw.  612- 
618;  U.  S.  V.  Babcoek,  3  Dill. 
582-585;  U.  S.  v.  Goldberg, 
7  Biss.  175  In  this  last  case  the 
court  says :  "It  is  not  necessary  to 
constitute  a  conspiracy  that  two  or 
more  persons  should  meet  together 
and  enter  into  an  explicit  and  for- 
mal agreement  for  an  unlawful 
scheme,  or  that  they  should  directly 
by  words  or  writing,  state  what  the 
unlawful  scheme  was  to  be  and  the 
details  and  plan  or  the  means  by 
which  the  unlawful  combination  was 
to  be  made  effective.  It  is  sufficient 
if  two  or  more  persons,  in  any  man- 
ner or  through  any  contrivance  posi- 
tively or  tacitly  come  to  a  mutual 
understanding  to  accomplish  a  com- 
mon and  an  unlawful  design. ' ' 

16 — People  V.  Mather,  4  Wend. 
229;  Spies  case,  3  A.  S.  E.  395. 
The  court  says:  "Though  the  com- 
mon design  is  the  essence  of  the 
charge  of  conspiracy,  it  is  not  neces- 


sary to  prove  that  the  defendants 
came  together  and  actually  agreed 
in  terms,  to  that  design  and  to  pur- 
sue it  by  common  means.  If  it  be 
proved  that  they  pursued  by  their 
acts  the  same  object,  often  by  the 
same  means,  one  performing  one 
part,  another,  another  part  of  the 
same,  so  as  to  complete  it,  vdih.  a 
view  to  the  attainment  of  the  same 
object,  the  jury  will  be  justified  in 
the  conclusion  that  they  were  en- 
gaged in  a  conspiracy  to  effect  that 
object."  See  Greenl.  Ev.,  sec.  95, 
People  V.  Flack,  125  N.  Y.  324,  26 
N.   E.  267,  11   L.  R.  A.  807. 

17 — People  V.  Eichards,  1  Mich. 
216,  51  Am.  Dec.  75;  State  v.  Glid- 
den,  55  Conn.  46,  8  Atl.  800,  3  A.  S. 
E.  23;  People  v.  Gilman,  121  Mich. 
187,  80  N.  W.  4,  80  A.  S.  E.  490; 
State  V.  Switzcr,  63  Vt.  604,  25  Am. 
St.  Ecp.  789,  22  Atl.  724. 

18— King  V.  Turner,  13  East.  231. 


372  Criminal  Law 

or  defraud  by  false  pretenses,  another  of  his  property,  or 
an  interest  therein,  will  constitute  the  offense.  The  bet- 
ter opinion  seems  to  be,  that  the  rule  applies,  to  every 
kind  of  property.  There  is  no  good  reason  why  real 
estate,  or  any  right  growing  out  of,  or  incident  thereto, 
should  be  an  exception.^® 

§  425.  Partners  may  be  gnilty  of  conspiracy,  under  cer- 
tain circumstances.  It  is  a  conspiracy  to  agree  to  secret 
or  dispose  of  property  of  a  debtor  for  the  purpose  of  de- 
frauding his  creditors.^"  Partners  may  be  convicted  of 
a  conspiracy  where  one  makes  false  and  fraudulent 
declarations  as  to  the  solvency  of  the  partnership.^^  So 
also  partners  may  on  the  same  principle  be  convicted  for 
making  false  and  fraudulent  declarations  and  recommen- 
dations to  another  whereby,  he  is  induced  to  part  with  his 
goods  to  a  third  person,  where  the  partners  attach  the 
goods,  at  once,  after  they  are  in  the  possession  of  such 
third  person.^'^  Where  two  or  more  persons  combine  and 
confederate  together,  for  the  purpose  of  making  false  and 
fraudulent  declarations  with  the  idea  of  inducing  another 
to  part  with  his  goods,  are  guilty  of  conspiracy.'^'  Whether 
in  any  given  case,  the  remedy  is  by  suit,  as  in  civil  ac- 

19 — People   V.   Richards,   1   Mich.  marks   wore    made    in   reference   to 

216,    ij    Am.    Dec.    75.      The    court  such  a  case.     The  judge  cannot  be 

say.s:     (Lord    Ellonborough    in    the  supposed    to    liave    intended   to    say 

case  of  the  King  v.  Turner,  13  East.  that  an  indictmont  for  a  conspiracy 

231),  to  show  that  even  if  an  indict-  to  cheat  an  individual,  would  only  lie 

ment,  for  a  conspiracy  to  commit  a  in  cases  where   the  facts  were  the 

fraud   upon   an   individual   lies,   yet  same   in   which   the    indictment   had 

it  cannot  lie  whore  the  object  of  the  been  sustained. 

conspiracy  is  to  defraud  him  of  his  20 — Com.   v.    Goldsmith,    12    Phil, 

lands;   and  the  indictment  being  as  632;    Hall    v.    Eaton,    25    Vt.    458; 

to   the  lands  bad,   is  bad   as  to  all.  Heine  v.  Com.,  91  Pa.  St.  145. 

In  the  case  cited  the  indictment  was  21 — Com.  v.  Warren,  f>  Mass.  74. 

for  a  conspiracy  to  commit  a  civil  22 — I'atton    v.    (lurney,    17   Mass. 

trcHpasH,    by    going    on    to    anolher  182. 

man's   land   to   kill    hares.      It  was  23 — Fairbank   v.  Newton,  50  Wis. 

hold   that   an   indictment   would   not  62H. 
lie,    and     Lord     Ellonborough 's    ro- 


Conspiracies  373 

tioiis,  or  whether  the  community  has  a  cause  of  action, 
depends  upon  the  enoraiity  of  the  consummated  act,  and 
the  extent  of  injury  to  the  public.  Especially  is  this 
true  in  cases  where  the  consummated  act,  would  not  con- 
stitute an  indictable  offense.'^* 

§  426.  Other  circumstances  under  which  the  crime  may 
be  committed.  Conspiracies  for  the  purpose  of  extorting 
money,  or  other  valuables,  are  indictable  offenses;  charg- 
ing another  with  a  false  fact,  whether  the  fact  was  crim- 
inal or  not;  obtaining  money  or  other  valuable  thing, 
from  an  employer  by  threatening  to  induce  his  employees 
to  leave  their  work ;  deterring  the  workmen  from  entering 
the  employ  of  another;  threatening  to  incite  and  deter 
persons  from  entering  the  employ  of  another,  where  the 
same  is  accomplished  by  previous  agreement  and  under- 
standing appear  to  be  subject  to  indictment.^^  To  extort 
money  or  to  attempt  to  extort  money,  by  charging  another 
with  crime,  bastardy  or  lunacy  will  sustain  an  indictment 
for  conspiracy.^^ 

§  427.  Satisfy  iUwill.  A  conspiracy  to  satisfy  some  ill- 
will,  malice  or  revenge  upon  another  is  criminal.^'''    It  ap- 

24 — State  v.   Rickey,  9  N.  J.  L.  be  employed  are  of  a  highly  criminal 

293;   Hutchyig  v.  Hutching,  7  Hill.  character;   or  where  they  are  such 

104;   State  v.  DeWitt,  2  Hill.  S.  C.  as  indicate  great  malice,  in  the  con- 

282,  27  Am.  Dec.  371;  State  V.  Crow-  federates;     or     where     the     object 

ley,  41  Wis.  271,  22  Am.  Rep.  719.  in      view      l)eing      unlawful;       or 

25 — Heap  v.  Dunham,  95  111.  583;  where    the    confederacy    having    no 

Carew  v.  Rutherford,  106  Mass.  1;  lawful    aim,    simply    tends    to    the 

Bonifield  v.  Blake,  6  Car.  and  p,  75.  oppression   of   individuals.     A  eare- 

26 — Queen  v.  Best,  6  Mod.   136;  ful    analysis    of    the    cases,    which 

State  V.  Hickling,  41  N.  J.  L.  208;  have    hitherto    been    adjudged    will 

State  V.  Coward  Slaw,  360;  Com.  v.  reveal  the  presence  of  one  or  more 

Tibbitts,    2    Mass.    536;    Davenport  of  the  qualities  here  enumerated;  to 

V.   Lynch,   6   Jones  L.   545.  this  extent,  therefore,  they  may  be 

27 — "It     may     be     safely     said,  relied  on,  as  safe  criteria,  Avhereby 

nevertheless,  that  a  combination  will  to  test  new  emergencies  as  they  may 

be  an  indictable   conspiracy,  when  be     presented     for     adjudication." 

ever   the  end,   purpose  or  means  to  State    v.    Donalson,    3    Vrooni    151; 


374  Ckiminal  Law 

pears  also  that  any  means,  having  the  effect,  if  earned 
out,  to  oppress  or  coerce  another,  either,  to  the  relinquish- 
ment of  his  right  to,  or  his  possession  of  property,  forfeits 
use,  enjoyment,  or  which  hinders  him  in  the  immediate, 
rightful  and  legal  use  of  the  same,  come  within  the  limits 
of  criminal  conspiracy.^* 

§  428.  Agreements  to  commit  act  of  immorality  is  con- 
spiracy. Conspiracies  fonned  for  the  purpose  of  ac- 
complishing inunoral  results — such  as  inducing  a  female 
to  become  a  prostitute — especially  where  she  is  of  tender 
years  or  where  she  may  be  of  weak  intellect,  is  criminal.^® 
As,  also,  is  a  confederation  for  the  pui'pose  of  seducing  a 
female,  although  seduction  may  not  be  regarded  as  an 
offense  in  the  particular  jurisdiction.^"  So  would  any  un- 
lawful combining,  to  do  any  immoral,  or  other  grossly 
reprehensible  act,  having  a  tendency  to  effect  the  morality 
of  the  community.  It  is  clearly  an  indictable  offense  to 
conspire  for  the  purpose  of  enticing  a  minor  female,  from 
under  the  protection  of  her  guardian  or  j^arents,  with 
the  intention  of  marrying  her,  to  another,  without  their 
consent.^^  It  is  not  crhninal  conspiracy  for  a  man  and  a 
woman  to  agree  to  commit  adultery  or  fornication  with 
each  other.'^ 

I 

KicJiards  v.  People,  51  Am.  Dec.  85,  29— .Sinitli  v.  reojjle,  25  111.  17. 

and  note.                                        *  30— Muffin    v.    Com.,    5    Watt.    & 

28— Muffin   V.  Com.,  40  Am.  Dec.  S.  461;  Rex  v.  Locker,  5  Esp.  107; 

527;    Com.    v.    Hunt,    38    Am.   Dec.  liepuhlicii  v.  Hcvis,  2  Ycatcs  114. 

346;  Com.  v.  iiastman,  48  Am.  Dec.  31 — See  authorities  and  note  2,  40 

596;  State  v.  McNally,  56  Am.  Dec.  Am.  Dec.  529;  Miles  v.  State,  58  Ala. 

650;  State  v.  Murphey,  41  Am.  Dec.  390;    Sliamiun   v.   Com.,    14   Pa.   St. 

79;  State  v.  Cole,  39  N.  J.  L.  324;  226. 

Stale  V.  Glidden,  55  Conn.  46,  8  Atl.  32— State    v.    Huogin,    110    Wis. 

800,  3  A.  S.  R.  23;   State  v.  Davis,  189,   85    N.   W.    1046,   62   L.   R.   A. 

88  S.  C.  229,  70  S.  K.  — ,  34  L.  R.  A.  7(i(i;   Kandall  v.  Lonsdorf,  126  Wis. 

(N.     8.)     295;     dray     v.     Building  117,    105    N.    W.    663,   5    Ann.   Cas. 

Trades  Council,  91  Minn.  171,  97  N.  ;;7I  ;  3  I>.  K.  A.  (N.  S.)  407. 
W.  663,  103  A.  S.   ]{..  and   note  pp. 
479  and  499. 


Conspiracies  375 

§  429.  To  defeat  public  justice.  It  is  a  general  rule  that 
conspiracies  to  obstruct  or  to  defeat  public  justice  are  in- 
dictable offenses.  Where  tlie  object  of  the  conspirators, 
are  to  fabricate  evidence  or  to  suppress  testimony;  to 
bribe  a  jury,  juror,  a  witness  or  the  jadge,  such  would 
come  within  the  rule.  Conspiring  to  do  anything  the 
effect  of  which  is  to  subvert,  obstruct,  suppress  or  impede 
the  course  of  justice,  come  clearly  within  the  meaning  of 
criminal  conspiracy.  To  obtain  legal  process  by  agree- 
ment for  illegal  purposes  or  agreements  to  make  false 
charges  in  court,  are  also  criminal.  Where  ever  the  object 
is  to  effect  the  free  course  of  justice  in  public  trials,  or 
where  administrative  justice  is  obstructed,  hindered,  sup- 
pressed, or  defeated,  such  agreements  and  combinations 
are  criminal.^^ 

§  430.  Of  and  concerning-  the  wages  of  workmen, 
etc.  The  confederating  together  of  many  persons  with 
the  object  of  controlling  the  wages  of  working  men,  or 
inducing  them  to  leave  their  employ;  or  by  inducing  an 
employer,  through  threats  of  injury,  to  discharge  one  or 
more  of  his  employees,  has  been  held  time  and  again  to 
be  indictable  conspiracy.**  It  has  been  held  that  many 
persons  combining  themselves  with  the  intent  of  declar- 
ing a  boycott,  against  a  corporation,  the  object  of  which 
was  to  induce  others  to  withdraw  their  trade,  patronage 
and  support,  from  such  corporation,  unless,  such  corpora- 

33— state  v.  Dewitt,  2  Hill.  283;  34 — Crump  v.   Com.,   84  Va.   927, 

State  V.  Noyes,  25  Vt.  415;  People  G  S.  E.  620,  10  A.  S.  R.  595.     The 

V,    Chase,    16   Barb.    495;    State   v.  following:  State  v.  Donalson,  32  N. 

Bartlett,    30    Me.    132;    Johnson    v.  J.  L.  151,  90  Am.  Dec.  649;   State 

State,    3    Tex.    App.    590;    Ivnowles  v.  Wilson,  30  Conn.  507;  Walker  v. 

V.  Peek,  42  Conn.  38G,  19  Am.  Rep.  Cronin,    107    Mass.    564;    Carew    v. 

542;   Garland  v.  State,  112  Md.  83,  Rutherford,  106  Mass.  10-15,  8  Am. 

75     Atl.    631,    21    Ann.    Cas.    28;  Rep.    287;    Parker   v.    Griswold,    17 

People  V.  Plack    (N.  Y.)    11  L.  R.  Conn.  302,  43  Am.  Dec.  739;   State 

A.     807.       To     fabricate     evidence.  v.  Glidden,  55  Conn.  76,  3  Am,  Rep. 

State,  20  Hardin,  144  la.  264,  120  23. 
N.  W.  470,  138  A.  S.  R.  292. 


376  Ckimixal,  Law 

tiou  acceded  to  the  demands  of  the  conspirators,  to  dis- 
charge its  working  men  and  to  employ  such  persons  only, 
as  was  recommended  by  them,  is  guilty  of  a  criminal  con- 
spiracy. It  is  unlawful  for  employers  to  coerce,  intimi- 
date or  hinder,  the  free  choice  of  working  men,  in  the 
disposal  of  their  time  and  talents.  It  is  unlawful  for 
working  men  wrongfully,  to  coerce,  intimidate  or  hinder, 
employers  in  the  selection,  of  such  workmen  as  they 
choose  to  employ.  No  employer  can  say  to  a  workman, 
he  must  not  work  for  another  employer.  Nor  can  a  Avork- 
man  say  to  an  employer,  he  cannot  employ  the  service 
of  another  workman.  Societies,  such  as  labor  unions, 
which  for  the  purpose  of  mutual  protection  order  a  with- 
drawal of  their  members,  from  the  service  or  support  of 
their  employer  unless  certain  demands  are  acceded  to, 
upon  principles  of  the  common  law,  are  not  criminal  con- 
spirators and  do  not  constitute  coercion,  intimidation, 
force  and  violence,  where  there  has  been  no  actual  co- 
ercion, force  and  violence.'^ 

§  431.  Boycott  is  an  unlawful  conspiracy.  As  under- 
stood in  the  United  States,  a  boycott  is  an  agreement  by 
many  persons,  by  virtue  of  which  it  is  understood,  that 
they  as  a  body  will  refrain  from  doing  certain  things — 
such  as  performing  labor,  entering  or  leaving  the  employ 
of  cei-tain  persons,  etc.,  unless  certain  demands,  stipu- 
lations or  wages  are  granted  them.  It  may  be  said  to  be 
an  exaction,  ])y  many  persons,  by  previous  agreement, 
upon  persons  wlio  stand  in  need  of  the  services,  patron- 
age, custom  <!!■  iiilliiciicc  of  sucli  ])ers()ns,  in  conducting 
their  business,  trade  or  prolVssion,  to  grant  to  them  cer- 
tain wages,  privileges  or  innnunities,  and  in  the  event  of 
refusal  to  agree  to  withdraw  from  them  either,  in  not 

.'{5— Sl.'iti!  V.  Stock  ford,  77   Conn.  Am.  I{c|>.  7J0;   Shtte  v.  Dunc.in,  78 

227,  58  Atl.   700,   107   A.   S.   R.  28,  Vt.  ;t64,  6a   Atl.  225,   112   A.   S.  R. 

nlHO   Crump  ciihc,  note   1.     State  v.  !)132,  fi  Ann.  Ciis.  602,  4  L.  R.  A.  (N. 

Stewart,  r,5>  Vt.  273.  J)  Atl.  550,  59  8.)  IMl. 


Conspiracies  377 

entering  their  employ,  or  in  withdrawing  their  services, 
aid,  patronage,  influence  or  support. ^^  The  courts,  Avhere 
the  questions  have  been  before  them,  have  held  a  boy- 
cott to  be  a  criminal  conspiracy.  They  have  construed 
such  combinations  to  be  in  restraint  of  trade,  and  hence 
a  crime.  Where  the  object  of  the  boycott  was  to  raise  or 
lower  wages,  it  has  been  held  to  be  criminal,  because  it 
deprives  the  employer  of  his  free  will  in  employing,  whom 
he  chooses,  and  at  such  prices  he  may  desire.  It  is  said 
also,  that  it  is  a  coercion  and  an  oppression,  upon  the  in- 
dividual, because  it  deprives  him  of  his  freedom,  to  act 
and  do  as  he  pleases  in  accepting  service  where  and  with 
whom  he  Welshes;  a  coercion  and  an  oppression  upon  the 
employer,  because  it  deprives  him  of  the  right  to  employ 
whom  he  chooses,  at  such  price  as  may  be  agreed  upon.^'^ 
Where  a  number  of  employees  demand  of  their  employer, 
that  he  discharge  certain  other  coemployees  and  upon  re- 
fusal to  comply,  that  they  will  leave  his  employ  in  a  body, 
such  action,  is  a  crime.  The  cases  argue,  that  every  per- 
son has  a  right  to  engage  in  business  and  to  seek  the  serv- 
ices of  any  person  he  wishes,  and  upon  such  terms  as 
may  be  agreed  upon,  and  also  that  a  corresponding  right 
exists  in  behalf  of  the  working  man  to  engage  service 
with  whom  he  will.  These  cases  announce  the  doctrine 
that  every  person,  singly,  may  leave  the  service  of  a 
master  whenever  he  thinks  himself  aggrieved  and  indi- 

3G— state  v.  Stewart,  59  Vt.  373,  663,  40  S.  E.  177;  1  Ann.  Gas.  495, 

i)  Atl.  550,  59  Am.  Rep  710;   State  68  L.  E.  A    760.     Note  to   1   Am. 

V.  Duncan,  78  Vt.  264.  63  Atl,  225,  Gas.  508;  Stk   -  v.  Glidden,  55  Gonn. 

112  A.  S.  R.  922,  6  Ann.  Gas.  602,  46;    Grump  v.   Gom.,  84  Va.  927,   6 

4  L.  R.  A.  (N.  S.)  1144.    The  right  S.  E.  620,  10  A.  S.  R.  805. 
to  strike  and  cease  work  in  a  body  37 — People    v.   Fisher,    14   Wend, 

is  held  legal  where  the  purpose  is  10,   28   Am.   Dec.   501;    Gunthur   v. 

to     obtain    higher    wages,     shorter  Aston,  23  B.  Mon  12;  State  v.  Glid- 

liours,     etc.        National     Protective  den,   55   Gonn.   46;    Grump  v.   Gom., 

Assn.  of  Steam  Fitters  and  Helpers  84   Va.    927;    Old    Dominion   Steam 

V.  Gummings,  170  N.  Y.  315,  63  N.  Ship  Go.  v.  McKenna,  U.  S.  Girt.  S. 

E.   369,  88  A.   S.   R.   648,  50  L.  R.  D.  of  N.  Y. ;  Slaughter  House  cases. 

A.  135;  State  v.  Van  Pelt,  136  N.  G.  16   Wall.    36-116. 


.'378  Criminal  Law 

vidually  may  demand  that  his  wages  be  raised  or  that 
other  persons  be  discharged,  but  when  he  agrees  with 
others  to  do  like  things  and  upon  refusal  of  the  employer 
to  comply  with  their  demands,  to  quit  work,  he  and  those 
with  whom  he  agreed,  are  guilty  as  conspirators. 

§  432.  The  skill  of  the  workingman  and  his  labor  is 
capital.  The  skill  of  the  workingman  and  the  mechanic, 
the  plant  of  the  manufacturer  and  the  holdings  and  the 
implements  of  the  farmer  are  in  an  equal  sense  property.^^ 
The  labor  of  the  workingman  in  any  sphere,  is  as  much 
property  as  the  holdings  of  the  capitalist.  The  proposi- 
tion is  conceded  by  all  authorities  that  the  workingman 
has  the  right  to  employ  his  time,  skill  and  talents  in  any 
way  that  suits  his  inclinations,  and  at  such  price  as  he 
may  wish.  Such  also  is  conceded  to  the  operator  and 
capitalist  and  in  addition,  to  use  and  expend  his  money 
in  any  way  that  suits  his  pleasure — give  such  wages  as 
suits  him  for  labor,  etc.^^  Upon  principle,  either  one  or 
the  other,  of  these  classes  of  persons,  combining  the  use 
and  expenditure  of  their  respective  rights  in  such  a  way, 
as  to  oppress  or  coerce  the  other  in  his  free  agency  in 
the  application  of  such  rights,  will  be  guilty  of  criminal 
conspiracy.  If  the  force  of  oppression,  coercion  or  in- 
timidation works  upon  the  physical  or  other  necessities 
of  the  party,  in  such  n  manner  as  to  take  from  him  his 
volition  in  acting  as  he  pleases,  appears  to  come  within 
this  principle. 

;i8— Wnnl    V.    8t;ite.    47    N.    .1.    L.  St.    Kcp.    ;!;!0,    57    N.    E.    1011,    51 

]80;  State  v.  Stewart,  59  Vt.  27;?,  9  L.  R.  A.  ;i;{9;  Sherry  v.  Perkins,  147 

Atl,   550,   59   Am.   Rep.   710;    State  Mass.  212,  9  A.  S.  R.  689,  17  N.  E. 

V.  Van  Pelt,  1.36  N.  C.  663,  40  S.  E.  2(t7;    n;iir  v.  Essex  Trades  Council, 

177,  Ann.  Cas.  495,  G8  L.  R.  A.  760.  15  N.  .1.   ]■A^.  101.  29  Atl.  881;  Gray 

.'19 — State    V.    fllidden,    55    Conn.  v.     Hnil<liii;,fs     Trades     Council,     91 

40;   Am.  &   Enjj.  Enc.  Law,  p.  008-  Minn.   171,  97  N.  W.  063,  1118,  103 

009;    State    v.    Stockford,    77    Conn.  A.    S.    I{..    177.      See    note    tliis    la.st 

227,  58   Atl.  709,  107   A.  S.   R.   28;  .VullKirity   S.ih.j.    111.   p.    195. 
Plant  V.   Woods,   170  Mans.  79,  Am. 


Conspiracies  379 

§  433.  Combination  of  dealers  to  lower  or  raise  prices 
is  conspiracy.  An  agreement  made  between  dealers  in 
any  commercial  article  or  articles  of  prime  necessity,  for 
the  purpose  of  controlling  the  price  and  managing  the 
sale  under  the  direction  of  an  exchange,  was  decided  in  a 
case  in  New  York  to  be  illegal,  and  a  criminal  conspiracy. 
Where  the  object  and  intent  of  such  organizations  are 
for  purpose  of  controlling  the  free  competition  of  a  spe- 
cific article,  it  contravenes  the  objects  and  purposes  of 
trade,  and  deliberately  cancels  one  of  the  oldest  and  the 
most  generally  recognized  principles  of  political  economy 
that ' '  competition  is  the  life  of  trade. "  *°  If  the  purpose 
of  the  exchange  is  to  keep  the  price  up,  or  if  it  raises  the 
price,  it  is  nevertheless  a  criminal  conspiracy,  nothwith- 
standing  the  increase  in  price  may  not  be  more  than  a 
legitimate  profit  on  the  sale.  The  court  in  rendering 
the  opinion  said,  that  in  the  particular  case  it  made  no 
difference  whether  the  price  raised,  was  more  than  a 
legitimate  profit  or  not.  The  gravamen  of  the  offense, 
being  the  combination  to  do  a  thing  which  might  be 
and  the  tendency  of  which,  was  to  destroy  a  free  com- 
petition in  the  sale  of  such  article.*^ 

§  434.  Combinations  to  effect  legal  ends  by  illegal 
means.  In  combinations  for  the  purpose  of  effecting  a 
legal  result  by  illegal  means  in  order  to  make  it  criminal 
conspiracy,  it  is  not  necessary  that  the  means  used  be 
indictable.*^    If,  as  to  a  means  to  an  end,  the  effect  is  to 

40— People  v.  Sheldon,  1893,  139  by    the    courts.      83    Tex.    650,    29 

N.  Y.  251,  36  A.  S.  R.  690;  Hooker  Am.  St.  Eep.  690,  83  Iowa  156,  32 

V.  Vande  Water,  4  Denio  349;  Stan-  Am.  St.  Rep.  297;    90  Cal.  110,  25 

ton  V.  Allen,  5  Denio  506.  A.  S.  R.  257;   More  v.  Bennett,  140 

41— All  eombinations  whether  of  111.  69,  33  A.  S.  R.  216. 
capital  or  of  working  men,  for  the  42 — State    v.     Patten,     28     Iowa 

purpose  of  influencing  trade  in  their  554;    Cole   v.   People,    84   111.    216; 

favor,  by  raising  or  reducing  prices  Alderman   v.   People,   4   Mich.    414; 

are  so  far  illegal,  that  the  agree-  State  v.  Mayberry,  48  Me.  218. 
ments  to  combine  cannot  be  enforced 


380  Criminal  Law 

oppress  a  person  by  subjecting  him  to  the  power  of  the 
confederation,  or  the  effect  of  which  is  to  prejudice  the 
public,  tlien  the  offense  is  complete.  Pei-petrating  fraud 
upon  another  or  by  accomplishing  a  legal  purpose  by 
grossly  immoral  means,  is  criminal.** 

§  435.  What  is  necessary  to  be  alleged  in  the  indict- 
ment. The  authorities  in  the  main  agree  when  the  ob- 
ject of  a  conspiracy  is  unlawful  or  is  for  the  purpose  of 
committing  some  crime,  the  indictment  need  not  set 
forth  the  means  by  which  the  consummated  act  is  to  be 
effected.**  A  general  allegation  that  the  conspiracy  was 
for  the  purpose  of  conmiitting  the  particular  crime  or 
unlawful  act  is  sufficient.  If  the  consummated  act  for 
the  purpose  of  which  the  conspiracy  is  formed,  is  per  se 
indictable  then  a  general  allegation  is  sufficient.  There 
are  high  authorities  which  deny  the  rule  as  above  an- 
nounced. These  authorities  maintain  that  in  any  case, 
whatever  may  be  the  object  of  the  conspiracy,  whether 
it  be  to  do  an  act  which  is  well  known  to  be  criminal  or 
which  partakes  largely  of  criminal  elements,  the  allega- 
tions of  the  indictment  must  clearly  inform  the  defendant 
of  the  nature  and  cause  of  the  accusation  against  him,  and 
the  ingredient  of  which  the  offense  is  composed  nnist 
be  clearly  and  accurately  alleged. 

§  436.  Allegation  of  the  indictment  continued.     The 

gravamen  of  a  criminal  conspiracy  is  the  corrupt  com- 
})ination.  It  appears  to  be  usual  to  allege  in  tlic  indict- 
ment some  overt  act  toward  carrying  out  Iho  ol)ji'('t  of 
the  conspiracy,  but  this  is  not  absolutely  necessary  to 

43— state    v.    Barham,    15   N.    H.  h:!,   75  Atl.   631,  21   Ann,   Gas.   28, 

396.  niul   note.     State  v.   Van   Pelt,  136 

44_Thonias    v.    People,    113    111.  N.  C.  633,  49  S.  E.  177,  1  Ann.  Gas. 

.Wl;    State    v.    Orniiston,    66    Iowa  495,    68    L.    R.    A.    760;    Stale    v. 

143,  27  N.  W.  37;  State  v.  Barglott,  Stewart,  59  Vt.  273,  9  Atl.  559,  59 

30  Me.  132;   State  v.  Noyos,  25  Vt.  Am.    J{ep.    710;    State    v.    Crowley, 

115;     fJarlantl    v.    State,     112    Md.  41    Win.   271,   22  Am.   Rep.   719. 


Conspiracies  381 

the  validity  of  the  indictment.  Proof  of  acts  going  to 
show  that  there  had  been  an  effort  to  carry  out  the  pur- 
poses of  the  combination,  is  the  best  proof  of  the  con- 
spiracy.*® 

§  437.  Illegal  act  by  illegal  means,  indictment  etc. 
Where  the  purpose  of  the  conspiracy  is  to  effect  some 
legal  act  by  illegal  means  it  is  then  necessary  to  fully  set 
forth  in  the  indictment  the  means  b}^  which  such  act  is  to 
be  accomplished.*^  The  reason  of  the  rule  is  apparent. 
If  the  culpatory  act  consists  in  the  means  by  wiiich  the 
act  is  to  be  committed  then  it  is  very  essential  to  the 
rights  of  the  defendant  to  inform  him  in  plain  and  in- 
telligible allegations  the  nature  of  the  offense  which  he 
is  to  defend.  In  cases,  however,  where  the  purposes  of 
the  conspiracy  being  those  crimes  or  offenses  which  are 
well  known  by  name,  no  such  description  or  allegations 
are  necessary.*'' 

§  438.  Allegations  where  the  act  has  been  consum- 
mated. Where  the  indictment  is  for  the  consummated 
conspiracy,  the  allegations  are  required  to  be  very  specific 
and  certain  in  setting  forth  the  offense.  Where  the  re- 
sult of  the  common  design  amounts  to  a  criminal  offense, 
and  the  indictment  is  for  such  offense,  the  pleader  can 
then  specifically  and  certainly  set  forth  all  the  necessary 

45— state    v.    Wilson,    30    Conn.  189,  85  N.  W.  1046,  62  L.  E.  A.  700; 

500;  Hazen  v.  Com.,  23  Pa.  St.  355;  Com.  v.  Hunt,  4  Mete.  (Mass.)   Ill, 

Alderman  v.   People,  4  Mich.   414;  38  Am.  Dec.  346. 

State  V.  Reply,  31  Me.  389;  People  46— State    v.    Crowley,    41    Wis. 

V.  Arnold,  46  Mich.  268,  273;  People  271;    4    Lawson's    Grim.    Defenses, 

V.  Richards,  1  Mich.  216;   U.  S.  v.  1887,  561-2;    Com.  v.  Hunt,  4  Met. 

Groff,   14  Blatchf.   381-2;    Landing-  111;    38    Am.    Dec.    346;    Isaacs   v. 

ham  V.  State,  49  Ind,  136;    People  State,  48  Miss.  234;  Cole  v.  People, 

V.    Richard,    1    Mich.    216,    51    Am.  34  Iowa  216. 

Dec.  75-n;  State  v.  Buchanan,  5  Har-  47 — Wood   v.   State,  47   N,  J.   L. 

rison    and    Johnson,    317    (Md.),    9  1 61 ;  contra  Com.  v.  Shedd,  61  Mass. 

Am.  Dec.  531,  p.  571,  note  and  au-  514. 
thorities.  State  v.  Huegin,  110  Wis. 


382  Criminal  Law 

allegatious,  and  the  defendant  is  entitled  to  have  all  the 
material  allegations  sot  fortli.'*^ 

§  439.  Rule  as  to  principals  and  accessories.  The  gen- 
eral rules  relating  to  ijrineipals  and  accessories  have  no 
application  to  the  degree  of  guilt  in  the  perpetration  of 
felonious  crimes,  as  to  conspirators.*^  A  conspiracy  to 
commit  a  felony  as  distinguished  from  the  perpetration 
of  a  felony  in  the  ordinary  sense,  consists  in  the 
agreement  and  concerted  action  on  the  part  of  each  and 
every  member  of  the  conspiracy,  to  accomplish  the 
common  design  by  participation  therein,  and  by  con- 
tributing by  one  means  or  another  to  the  felonious  pur- 
pose. All  persons  who  enter  into  a  common  design  to  do 
an  unlawful  thing,  and  a  felony  result  as  a  natural  and 
ordinarj^  consequence  in  undertaking  to  accomplishing 
the  common  purpose,  are  guilty  whether  they  kno"sv  of 
the  commission  of  the  act  at  the  time  or  not.^°  The  mem- 
bers of  a  conspiracy  are  equally  responsible  for  the  acts 

48 — People   v.    Richards,    51    Am.  Avitli   the  man  wlio  threw  the  bomb 

Dec.  75-n,  1,  Mich.   216;    People  v.  and  the  men  who  fired  the  shots  at 

Arnal,   46   Mich.   268,   38   Am.   Dec.  the   Haymarket   in   a   conspiracy    to 

.')47;    Brown  v.  State,   2   Tex.   App.  bring  about   a  social   revolution   in 

11;1;    Mason  v.  State,  2  Tex.   App.  Cliieago  by  force  on  or  before  May 

192;   State  v.  Stewart,  273,  9   Atl.  1,  1886;   in  other  words  to  destroy 

Z')0,  59  Am.  Rep.  710.  tlic    police    and    the    militia    on    or 

49 — "Where  two  or  more  persons  iilioiit   tliat    dale   witli   bombs,   rcvol- 

unite    to    acconiplisli    some    criminal  \ers  or  rillos.     It  is  well  settled  that 

object   whether    through    the    physi-  if  tlie  fact  of  a   conspiracy  is  once 

cal    violence    of    one    or    all — pro-  ( stal)li.shed,  any   act   of   one   of   tlu" 

cocding    severally    or    collectively —  (ons])ir;ifors    in    the    prosecution    of 

each     individual     whose     will     con-  the  enfeipri.se,  is  considered  the  act 

tributes  to  the  wrongdoing  is  in  law  of  all." 

responsible  for  the  whole  as  though  50 — Spies    v.    People,   3    A.    S.   R. 

perfoniied  by  liiniself  alone.    We  are  440;    State   v.   McCahill,   30   N.   W. 

not    treating   of   principles   and  ac-  Kep.  553;  Brenman  v.  People,  15  111. 

comjdiceH,    but    of    combinations    of  '11;    H.niii.i    v.   People,  86  111.  243; 

|):'rsons    to    commit    crime."       The  1..imiIi   \.    I'eojile,  !)6   111.  74;    P<'Oj)le 

court,  in  Skies  v.  People,  3  A.  S.  R.  v.    Stioueh,    210    111.    60,    88    N.    E. 

320,  snys:   "From  the  evidence  the  1"'5,   130  A.  S.  R.  255. 
defendant     Parsons    was    associated 


Conspiracies  383 

of  the  others,  notwithstanding  they  may  not  know  what 
part  each  is  to  accomplish,  nor  the  means  to  be  used  by 
each  in  effecting  the  common  purpose.^^  Each  member  is 
responsible  for  the  acts  of  each,  notwithstanding  they 
are  unknown  to  each  other. 

§  440.  Where  there  are  two  persons  only,  to  the  unlaw- 
ful agreement.  Where  the  conspiracy  consists  of  the 
combinations  and  agreements  of  two  persons  only,  the 
acquittal  of  one  acquits  the  other,  for  if  one  be  innocent, 
both  are  guiltless.  Not  so,  however,  where  the  combina- 
tion is  by  more  than  two.  So,  if  one  of  two  conspirators 
is  convicted  and  the  case  against  the  other  is  compro- 
mised or  dismissed  the  conviction  of  the  one  is  wrong. 
The  court  held  that  a  judgment  could  not  be  entered 
on  the  verdict,  because  the  dismissal  had  the  effect  of  dis- 
charging him  also.^* 

§441.  Rule  where  minds  of  persons  are  inflamed  by 
speeches.  Where  the  public  mind  is  influenced  by 
speeches,  public  journals,  papers  and  the  like,  to  such  an 
extent  as  to  induce  persons  to  commit  acts  of  violence,  in 
consequence  of  which  a  riot  is  brought  about,  will  con- 
stitute the  parties  who  make  such  inflammatoiy  speeches, 
and  those  who  contribute  the  matter  through  the  jour- 
nals, guilty  of  riot  to  the  same  extent  as  if  they  were 
at  the  place  at  the  time,  taking  part  therein.^*  If  the 
influence  produced  upon  the  mind  of  the  public  is 
such  as  can  be  traced  in  point  of  circumstance  to   a 

51— People    V.    Mather,    4    Wend.  of  Bex.  v.  Sharp,  3  Cox.  C.  C.  288, 

248,  21  Am.  Dec.  722.  and    concludes    that    the    defendant 

53— State  v.  Jackson,  7  S.  C.  283 ;  Parsons  who  made  a  speech  at  the 

Woodard    v.    State,    20    Tex.    App.  Hay    Market,   but  at   the   time   the 

375.  riot  took  place  was  not  present  at 

54— Spies  V.  People,    122    111.    1;  the  assemblage,  was  just  as  guilty 

id.  3  A.  S.  E.  320,  et  sequa.     This  as   the   party   who   threw   the   bomb 

court  adopts  the  language  in  the  case  which  killed  Degan. 


384 


Criminal  Law 


subsequent  riot  as  the  casual  connection  and  result  of  the 
speech  or  imputation  of  the  journal,  it  would  then  come 
within  the  doctrine.^^ 


§  442.  Acts  and  declarations  of  one.  The  acts  and 
declarations  of  one  conspirator  made  in  reference  to  the 
common  design,  the  existence  of  the  conspiracy  having 
been  established,  are  admissible  in  evidence  against  his 
coconspirator.  Such  declarations  are  regarded  as  res  ges- 
tae and  for  that  reason  are  chargeable  against  all  parties 
connected  w^ith  the  common  desigii.^^  Of  course,  it  is 
understood  that  the  acts  and  declarations  must  relate  to 
or  have  connection  with  the  pui-poses  of  the  common  de- 
sign. Such,  however,  to  be  admissible  against  the  con- 
spirators, must  be  acts  and  declarations  which  were 
after  the  inception  and  before  the  completion  of  the 
criminal  design.  It  seems  that  a  conspirator  need  not 
be  a  party  defendant  in  order  to  make  his  acts  and  decla- 
rations admissible  against  the  others.^'    It  is  not  neces- 


55 — King  V.  Sharp,  3  Cox  C.  C. 
288  says :  "If  persons  are  assem- 
bled together  to  the  number  of  three 
or  more  and  speeches  are  made  to 
those  jjcrsons  to  excite  and  influence 
tliem,  with  a  view  to  incite  them  to 
acts  of  violence,  and  if  that  same 
meeting  is  so  connected  in  point  of 
circumstance  with  a  subsequent  riot, 
that  you  cannot  reasonably  sever  the 
latter  from  the  incitement  that  was 
used,  it  appears  to  me  that  those 
wlio  incited  are  guilty  of  the  riot, 
although  they  are  not  actually  pres- 
ent when  it  occurred.  I  think  it  is 
not  the  hand  that  strikes  the  blow 
or  throws  the  stone  that  is  alone 
guilty  under  such  circumstances ;  but 
that  he  who  influences  people's 
ininds  and  induces  them  l>y  violent 
means  to  ;ic<'omj)lish  an  illegal  ol)- 
Ject,  is  liimseif  a    rioter,  thougli  lie 


take  no  part  in  the  riot.  It  Avill 
be  a  question  for  the  jury  whether 
the  riot  which  took  place  was  so 
connected  with  the  inflammatory 
language  used  by  the  defendant  that 
they  cannot  he  reasonably  separated 
l)y  crime  or  other  circumstances.'' 

56— Phillips  V.  State,  6  Tex.  App. 
o64;  Com.  v.  Brown,  14  Gray  419; 
State  V.  Buchanan,  35  La.  Ann.  89; 
Preston  v.  Brown,  13  Ohio  St.  ]- 
i:!;  State  v.  Larkin,  49  N.  H.  44, 
L'O  Ga.  181;  Bhiomer  v.  State,  48 
Md.  521-31;  Clinton  v.  Esles,  20 
Ark.  216;  Jenna  v.  Joselin,  41  Vt. 
478;  People  v.  Brown,  59  Cal.  345; 
Noil  V.  State,  60  Ind.  308-10;  State 
V.  Nash,  7  Iowa  347-84. 

57— Com.  V.  Brown,  14  Gray  419; 
Mudd  V.  Ihirroughs,  91  U.  S.  426- 
36. 


Conspiracies  385 

sary  for  the  acts  and  declarations  to  have  taken  place 
in  the  presence  of  those  sought  to  be  charged,  nor  even 
that  they  have  knowledge  of  them;  if  they  are  made  by  a 
coconspirator  in  reference  to  the  common  purpose  is  suf- 
ficient. 

§  443.  Declarations  made  before  or  after  commission  of 
the  offense.  Neither  acts  nor  declarations  made  anterior 
to  the  formation  or  subsequent  to  the  completion  of  a 
conspiracy  can  be  used  as  evidence  against  conspirators.^^ 
If  the  acts  and  declaration  are  in  the  nature  of  narratives, 
descriptions  or  subsequent  confessions,  the  same  may 
be  used  as  evidence  against  the  party  making  them  and 
can  in  no  sense  be  used  as  evidence  against  his  cocon- 
spirators unless  made  in  their  presence.^®  The  main  rea- 
son for  admitting  the  acts  and  declarations  of  one  con- 
spirator against  his  fellow  conspirator,  is  because  they 
go  to  explain  the  intents  and  purposes  of  the  common 
design,  and  to  that  extent  become  original  evidence,  and 
the  res  gestae — a  part  of  the  transaction  itself.  Decla- 
rations made  in  the  presence  of  a  coconspirator  must  be 
addressed  to  him,  or  made  in  such  proximity  to  him  as  to 
show  that  he  acquiesced  in  the  statements.  There  are 
gome  notable  exceptions  to  this  rule:  thus  if  the  party 
sought  to  be  charged  be  deaf,  intoxicated,  asleep  or  in  an 

58 — Ford  v.  State,  112  lud.  373,  Must  be  the  ordinary  and  probable 

14  N.  E.  241;   State  v.  Weaver,  57  Gonsequences    of    the    agreed    act. 

Iowa  730,  11  N.  W.  675;  Ferguson  Must  not  be  outside  of,  and  foreign 

V.  State,  134  Ala.   63,  32  So.   760,  to  the  common  purpose.     Powers  v. 

92  A.   S.  E.  17;    State  v.  Darling,  Com.,   100  Ky.  386,   61  S.  W.   735, 

216  Mo.  450,  115  S.  W.  1002,  129  53   L.  E.  A.  245;    State  v.  Taylor, 

A.  S.  E.  526,  23  L.  E.  A.    (N.  S.)  70  Vt.   1,   39  Atl.  447,  67  A.  S.  E. 

272;    People    v.    Freedman,   205   N.  648,  42  L.  E.  A.  673. 
Y.  161,  98  N.  E.  471,  45  L.  E.  A.  59— State  v.  Eoss,  29  Mo.  32-50; 

(N.  S.)  55;  Bowers  v.  State,  24  Tex.  Eeed  v.  State,  20  Ga.  681;  Cohea  v. 

App.  542,  7  S.  W.  247,  5  A.  S.  R.  State,  11  Tex.  App.  153;   Patten  v. 

901;  White  v.  People,  139  111.  143,  State,  6  O.  St.  467;  State  v.  Crowley, 

32  A.  S.  E.  196;  Jenkin  v.  State,  89  33  La.  Ann.  782. 
Ala.  115,  8  So.  23,  18  A.  S.  E.  91. 
C.  L.— 25 


386  Criminal  Law 

unconscious  or  hypnotic  condition.     Nor  does  this  rule 
apply  unless  the  statement  calls  for  a  response.^" 

§  444.  Old  rule  as  to  prima  facie  case,  and  its  mod- 
ification. There  is  a  very  old  rule  requiring  a  prima 
facie  case  of  conspiracy  to  be  first  proven  before  the  acts 
and  declarations  of  a  conspirator  can  be  offered  in  evi- 
dence against  his  coconspirator.  It  seems,  however,  that 
this  has  been  modified;  at  least  the  weight  of  modern 
authorities  hold  to  the  doctrine  that  the  acts  and  declara- 
tions may  be  offered,  but  upon  the  understanding  that 
if  the  conspiracy  is  not  conclusively  made  out  that  the 
juiy  are  required  to  exclude  such  evidence  under  the 
instructions  of  the  court.  It  seems  to  be  the  better  rule 
or  practice  to  first  establish  the  conspiracy  by  inde- 
pendent facts  and  circumstances  disconnected  with  the 
acts  and  declarations  of  the  conspirators.  The  order  of 
presenting  the  evidence  rests  in  the  sound  discretion  of 
the  court.  Such  discretion  will  not  be  resorted  to  except 
where  justice  and  the  necessity  of  the  case  require  it, 
lest  the  juiy  might  infer  the  existence  of  the  conspiracy 
from  the  proof  of  acts  and  declarations. 

60— McDerniott  V.  Com.,  123  Mass.  People,  53  N.  Y.  472;  Loggins  v. 
440,  25  Am.  Eep.  120;  Owensby  v.       State,  8  Tex.  App.  443. 


CHAPTER  XXIV 

COUNTERFEITING 

§  445.  Definition.  §  448.  Custom  cannot  legalize  a  coin. 

8  446.  English  statutes.  §  448a.  As    distinguished   from   for- 

§  447.  Constitution    of    the    United  gery. 

States    does   not    limit   the 
states  in  prosecuting. 

§445.  Definition  and  description.  Counterfeiting  is 
but  another  species  of  forgery  and  the  extension  of  the 
doctrine  of  '' Cheats."  Originally  the  term  ''Counter- 
feiting" was  intended  to  cover  the  making  of  false  coin 
or  the  altering  the  current  coin  of  the  country,  whether 
it  was  of  the  government's  own  issue  or  was  coin  or 
money  permitted  by  the  government  to  float  as  gen- 
uine coin  or  money.  The  term,  however,  is  applicable 
to  the  making  and  the  altering  of  trade-marks,  coin, 
paper  money  used  as  a  currency,  certificates  or  securities 
of  the  United  States,  bank  notes  issued  by  national  banks 
under  the  authority  of  the  laws  of  the  United  States, 
and  such  other  things  as  are  the  representative  of  rights, 
privileges  and  values — rather  than  the  values  themselves, 
in  false  imitation  and  similitude  of  the  genuine  coin, 
money,  etc.,  thing  or  character.  "A  thing  made  falsely 
and  fraudulently  in  the  imitation  of  and  in  the  semblance 
of  that  which  is  true."^  "An  imitation  of  something 
made  without  lawful  authority  and  with  a  view  to  defraud 
by  passing  the  false  for  the  true. "  ^  To  copy  or  imitate 
without  authority  or  right  and  with  a  view  to  deceive 
and  to  defraud.*    By  the  ancient  law  of  England  counter- 

1— Abbot's    L.    Diet.;     Glass    v.  2^Eapalje  &  L.  L.  Diet. 

State,  45  Tex.  App.  605,  78  S.  W.  3— State  v.  McKensie,  42  Me.  392 ; 

1068.  Denent  v.   State,  2  Head.    (Tenn.), 

387 


388  Criminal  Law 

feiting-  the  coin  of  the  Realm  was  a  treason.  By  statute 
of  25  Edward  III,  it  was  made  high  treason.  Subse- 
quently this  was  repealed  by  I  Maiy,  C.  I.,  but  again  re- 
stored by  enactment  of  I  Mary,  Stat.,  C.  6.  By  these 
statutes  clipping  and  defacing  the  coin  was  not  made 
penal;  so  we  have  the  later  statutes  of  5  Eliz,  c  II,  18 
Eliz,  c  I,  8  and  9  William  III,  c  26,  and  7  Ann  c  25,  making 
it  a  high  treason  to  clip,  wash  round  or  file  for  wicked 
gain's  sake  any  money  of  the  realm,  or  other  money 
suffered  to  be  current.  Then  lately  we  have  15  and  16 
Geo.  2  c  28,  providing  that  if  any  person  colored,  or  al- 
tered any  shilling  or  six  pence,  was  guilty  of  high  trea- 
son.* 

§  446.  English  Statutes.  It  may  serve  a  useful  purpose 
to  here  insert  the  substance  of  the  consolidated  act  of  24 
and  25  Vict,  c  29,  relating  the  counterfeiting  the  coin 
of  the  English  government.  There  is  a  great  similarity 
between  this  statute  and  that  of  the  United  States  and 
of  the  several  states.    Thus: 

Sec.  3.  Impairing  Gold  and  Silver  Coin:  Impairing, 
diminishing  or  lightening  any  of  the  Queen's  gold  and  sil- 
ver coin,  with  intent  that  it  should  pass  for  gold  or  silver 
coin,  is  felony,  etc. 

Sec.  4.  By  the  Same  Statute  one  having  in  his  posses- 
sion filings,  clippings,  dust,  etc.,  was  guilty  of  a  felony. 

Defacing  the  Coin.  Defacing  the  Queen's  coin,  gold, 
silver  or  copper,  by  stamping  tliereon  any  name  or  words, 
although  the  coin  may  not  tliercby  be  lightened,  is  a 
misdemeanor. 

Buying  and  Selling  Counterfeit  Coin,  etc.  Any  person 
buying,  selling,  receiving  or  putting  off  any  counterfeit 

50r>,    75    Am.    Deo.    747;    U.    S.    v.  nary  caro.     Glass  v.  State,  45  Tex. 

Hpraffuc,  48  Fed.  828;  U.  S.  v.  Mor-  App.  605,  78  S.  W.  1058. 

row,  4  Wash.  (U.  S.)  733.     The  re-  4 — For  a  discussion  of  the  above 

.semblance  of  counterfeit  coin  to  the  .statutes,  see  4   Bin.  84,  85,  86,  87, 

Conuine,  mu.st  be  sufficiently  strong  88,  89,  90;   1  Hale  P.  C.  224-231;   1 

to   deceive   persons  exercising   ordi-  Hawk   V.  C   42. 


Counterfeiting  389 

coin  for  a  lower  rate  or  value  than  it  imports,  is  guilty 
of  a  felony. 

Importing  and  Exporting  Counterfeit  Coin.  Import- 
ing or  receiving  into  the  United  Kingdom  from  beyond 
the  seas,  without  lawful  authority,  any  counterfeit  gold 
or  silver  coin,  knowing  the  same  to  be  false,  is  a  felony. 

Exporting  Etc.  Exporting  or  placing  on  board  of  any 
vessel  for  purpose  of  being  exported  from  the  United 
Kingdom  any  counterfeit  coin  of  the  Queen's  current 
coin  without  lawful  authority,  is  a  misdemeanor. 

Uttering  Counterfeit  Coin.  Tendering,  uttering  or  put- 
ting off  counterfeit  gold  or  silver  knowing  the  same 
to  be  false  and  counterfeit,  is  a  misdemeanor. 

Uttering  Foreign  Counterfeit  Coin.  Uttering  foreign 
gold  or  silver  coin;  for  the  third  offense  a  felony. 

Having  Counterfeit  coin  in  possession.  Having  three 
or  more  counterfeit  gold  or  silver  coin  in  possession, 
knowing  the  same  to  be  counterfeit,  intending  to  utter 
or  put  them  off,  or  any  of  them,  is  a  misdemeanor.  If 
the  coin  is  copper  the  imprisonment  was  for  one  year. 
Having  five  pieces  of  foreign  counterfeit  coin,  the  punish 
ment  is  by  imprisonment. 

Making  Coining  Tests.  Knowingly  and  without  lawful 
authority,  making,  mending,  buying  or  selling  or  having 
in  custody  or  possession  any  coining  instruments  or  ap- 
paratus adapted  and  intended  to  make  any  gold  or  silver 
or  foreign  coin,  is  a  felony. 

§  447.  Constitution  of  the  United  States  does  not  limit 
the  powers  of  states.  It  is  provided  by  the  constitution 
of  the  United  States  that  congress  shall  have  the  power  to 
coin  money  and  to  regulate  the  value  thereof  and  of 
foreign  coin;  that  congress  provide  for  the  punishment  of 
the  counterfeiting  the  securities  and  current  coin  of  the 
United  States.^    It  is  also  provided  by  the  constitution 

5— Art.  I,  sec.  8,  Const.  U.  S. 


390  Criminal  Law 

that  no  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jurj',  except,  etc.^  Under  these 
provisions  of  the  constitutions  delegating  powers  to  con- 
gress and  guaranteeing  to  the  citizens  the  important  right 
of  a  presentment  or  indictment  of  a  grand  juiy,  two 
veiy  important  questions  have  arisen.  1.  That  the  state 
governments  could  not  legally  in  the  face  of  these  pro- 
visions enact  laws  and  inflict  punishment  for  the  counter- 
feiting the  coin  and  securities  of  the  United  States,  be- 
cause the  constitution  had  conferred  exclusive  jurisdic- 
tion upon  the  courts  of  the  United  States.  This  appears 
to  have  been  a  mooted  question  for  a  long  time,  yet  the 
law  is  now  w^ell  settled  that  the  states  have  full  power 
to  legislate  upon  this  question  and  that  the  state  courts 
have  full  jurisdiction  to  punish  for  the  counterfeiting 
the  government's  coin  and  cun-ency,  upon  the  theory 
and  for  the  reason  mainly,  that  such  acts  are  in  the  na- 
ture of  a  fraud  perpetrated  upon  the  citizens  of  the  states ; 
and  because  the  constitution  and  the  laws  of  the  United 
States  have  not  prohibited  such  rights  to  the  states. 
Congress,  however,  recognizing  that  the  provision  of  the 
constitution  in  the  absence  of  a  right  conferred  by  the 
congress  placed  a  prohibition  i\\ion  the  states,  provided 
by  the  act  of  1825,  that  ''Nothing  in  this  act  contained 
sliall  be  construed  to  deprive  the  courts  of  the  individual 
states  of  jurisdiction  of  the  laws  of  the  several  states 
over  offenses  punishable  by  this  act."  '    2.  Tlio  contention 

G— Fifth    Amendment    to    Conat.  v.    Howiird,    51    Ind.    411;    Id.    19 

U.  S.  Am.  SI.  Ilep.  738;  Dashing  v.  State, 

7 — See   the   following:    Matterson  78  Ind.  357;  Ex  parte  Geisler  Girt. 

V.  State,  3  Mo.  421;  Kouse  v.  .State,  Court  Unites,  N,  D.  Texas,  50  Fed. 

4  Ga.  136;   Com.  v.  Fuller,  8  Mete.  411;    U.    S.    v.    Arjona,    120    U.   S. 

313;     Hallan    v.    People,    1    Doug.  470;    IVoplc   v.   McDonnell,  80   Cal. 

(Mich.)     207;     Button    v.    Slate,    9  285,  22  Pac.   199,   13  A.  S.  R.  159; 

Ohio  138;  Chess  v.  State,  1  Blackl.  Fox   v.   State   Ohio,   40   U.   S.   410, 

198;    Donnell  v.  State,  3   Ind.   480;  12   U.   S.   L.   Ed.   213. 
State  V.  Moore,  6  Ind.  436;  Snoddy 


Counterfeiting  391 

was  held  by  the  district  courts  of  the  United  States  that 
in  the  prosecution  for  passing  or  uttering  the  counterfeit 
coin  of  the  government,  that  the  same  might  be  prose- 
cuted by  inforaiation,  for  the  reason  that  the  statute  of 
the  United  States  failed  to  provide  that  the  crime  was 
"infamous  within  the  meaning  of  the  constitution."  This 
question  has  forever  been  set  at  rest  by  a  recent  decision 
of  the  Supreme  Court  of  the  United  States  wherein  it  is 
held  that,  ''A  crime  punishable  by  imprisonment  for  a 
term  of  years  at  hard  labor  is  an  infamous  crime,  within 
the  meaning  of  the  fifth  amendment  of  the  constitution; 
and  that  the  district  court  in  holding  the  petitioner  to 
answer  for  such  a  crime,  and  sentencing  him  to  such  pun- 
ishment, without  indictment  or  presentment  by  a  grand 
jury,  exceeded  its  jurisdiction,  and  he  is  therefore  entitled 
to  be  discharged."  ^ 

§  448.  Custom  cannot  legalize  a  coin  or  currency.  The 
states  have  no  right  to  make  a  coin  of  any  character  and 
there  can  be  no  counterfeiting  of  a  coin  made  contrary 
to  the  constitution  and  laws  of  the  United  States.  To 
counterfeit  a  coin  not  current  in  the  United  States  is  no 
crime.®  Where  the  prosecution  was  for  counterfeiting 
a  coin  called  the  California  five  dollar  coin,  it  was  held 
that  there  could  not  be  a  counterfeiting  of  a  coin  put  in 
circulation  contrary  to  the  constitution  and  laws  of  the 
United  States  and  further  that  such  coin  could  not  be- 
come valid  through  custom  since  custom  could  not  legal- 
ize what  was  illegal  under  the  terms  of  the  constitution  of 
the  United  States.^"  But  where  under  a  law  prohibiting 
the  circulation  of  bank  bills  of  less  than  ten  dollars,  unless 
made  payable  at  one  of  the  state  banks,  the  uttering  and 
publishing  of  counterfeit  bills  made  in  imitation  of  the 

8— Ex  parte  Wilson,  114  U.  S.  417,  (Mass.)  364;  Fight  v.  State,  7  Ohio, 

Id.   4    Am.    Cr.    Rep.    283.  part   1,  180,  28  Am.  Dec.   626. 

9— U.    S.    V.    Gardener.    10    Pet.  10— Com.  v.  Bond,  1  Gray  (Mass.) 

(U.  S.)  618;  Com.  v.  Bond,  1  Gray  364. 


392  Criminal  Law 

genuine  bills,  was  held  to  be  indictable."  So,  also,  it  has 
been  held  that  where  one  has  in  his  possession  a  genuine 
bank  note  of  a  duly  authorized  state  bank,  which  at  the 
time  has  suspended  because  of  its  insolvency,  for  the 
purpose  or  intent  to  sell  or  otherwise  dispose  of, 
was  guilty  under  that  provision  of  the  United  States 
Statute  reading  as  follows:  ''Eveiy  person  having  in  his 
possession  or  custody,  except  under  the  authority  of  the 
secret aiy  of  the  treasuiy  or  other  proper  officer,  any 
obligation  or  other  security  engi'aved  and  printed  after 
the  similitude  of  any  obligation  or  other  security  issued 
under  the  authority  of  the  United  States,  with  the  intent 
to  sell  or  othenvise  use  the  same,  etc. ' '  ^^  This  seems  to 
be  strongly  in  opposition  to  the  doctrines  of  the  above, 
but  the  court  justifies  itself  upon  these  reasons:  ''The 
object  of  the  provisions  of  the  statute  under  which  the 
indictment  is  framed  is  manifestly  to  preserve  the  in- 
tegrity of  the  national  treasuiy  and  banknote  currency, 
and  to  prevent  the  imposition  on  the  public  of  worth- 
less notes  or  obligations  of  any  kind  purporting  to  be 
genuine  obligations  of  the  United  States.  It  seems  to 
the  court  that  the  fact  that  the  note  in  question  was 
originally  issued  by  a  duly  authorized  bank  and 
was  a  legal  note  at  the  time  of  issuance,  does  not,  after 
it  has  become  utterly  worthless  by  the  insolvency  of  the 
bank,  exempt  the  holder  of  it  from  prosecution  if  he  has 
it  in  possession  with  intent  to  sell  or  otherwise  use  and 
pass  it  as  a  genuine  note  or  obligation  of  the  United 
Stiites."  "  However,  under  this  section  of  the  law,  where 
the  alleged  fraudulent  instrument  purports  to  be  after 
the  similitude  of  a  United  States  banknolc  1»ul  wns  not 
signed  or  pinqiorted  to  be  signicd  as  the  law  tlirct'ls,  it 

11 — ThoiiipHon    V.    Stato,    9    Oliio  i;j— United  States   v.   Stevens,  52 

St.    3.14;    Com.    v.    IIcuHley,    2    Va.        Fed.  itep.   120. 
Cas.  149. 

12— United   States  v.  Stevens,  52 
F.mI.  Hi'p.  120. 


Counterfeiting  393 

was  held  that  the  said  instrument  must  be  signed  or 
purported  to  be  signed— or  in  other  words  the  similitude 
must  be  after  a  genuine  instrument;  that  the  similitude 
is  not  sufficient  which  pui^Dorts  to  be  an  instrument  not 
authorized  by  law.^*  This  leads  us  to  the  conclusion 
that  a  false  instrument  made  after  the  similitude  of  an 
instrament  which  has  not  at  any  time  possessed  a  strictly 
legal  existence,  or  where  the  false  instrument  fails  to 
purport  to  be  after  the  similitude  of  the  genuine  instru- 
ment in  every  particular  which  is  essential  to  its  legal 
existence,  is  not  guilty  under  this  statute.  And  in  keep- 
ing with  this  it  is  no  offense  to  put  off  a  note  of  the  late 
Confederate  government  upon  an  ignorant  man  in  the 
night  time  as  a  genuine  bill  of  the  United  States  cur- 
rency. ^^ 

§  448a.  As  distinguished  from  forgery.  The  crime  in 
many  particulars,  to  the  lay  mind,  is  similar  to  the  crime 
of  forgery,  but  in  a  legal  sense  possesses  distinct  prin- 
ciples and  covers  distinctly  separate  actions.  "Counter- 
feit" means,  generally,  the  purported  copy  of  a  genuine 
instrument  or  thing.  Sometimes  the  simile  is  used  that 
a  counterfeit  is  a  picture,  but  this  in  a  legal  sense  is  not 
literally  true,  since  a  picture  actually  gives  the  compo- 
nent features  of  the  original.  When  an  instrument  is 
counterfeited  three  distinct  crimes  may  grow  out  of  it — 
that  is,  three  different  acts  may  produce  three  different 
crimes:  First,  the  counterfeiting,  which  consists  of  the 
making  of  spurious  instruments;  second,  the  mere  at- 
tempting to  pass  the  instrument  as  genuine,  which  is 
known  in  the  law  as  uttering  a  counterfeit  instrument; 
third,  the  passing  of  the  spurious  instrument,  which  con- 
sists in  causing  the  same  to  be  accepted  by  some  other 
person  as  genuine. 

14— United  States  v.  Williams,  14  15— United  States  v.   Wilson,   44 

Fed.  550.  Fed.  Eep.  751. 


394  CKiMiiSrAL  Law 

The  acts  herein  described  have  been  variously  com- 
bined by  the  statutes  of  the  states.  Thus,  some  statutes 
make  the  mere  possession  of  the  counterfeit  instrument 
with  intent  to  pass  it  as  genuine  a  crime,  whether  the 
possession  is  coupled  with  an  attempt  to  pass  it  or  not.^*^ 
Others,  again,  make  it  a  crime  to  have  the  possession  of 
instruments  with  which  such  instniments  may  be  made, 
printed  or  engTaved,  such  as  blocks  or  dies,  to  make  such 
instruments.^'' 

16 — Com.     V.     Price,     10     Gray  17 — People  v.  McDonald,  80  Cal. 

(Mass.)   472,  71  Amer.  Dec.  668.  285,  22  Pac.  160,  13  A.  S.  E.  150. 


CHAPTER  XXV 


CONTEMPTS  OF  COURT 


§  449.  Contempts  are  a  sort  of  Quasi       §  461. 
criminal  offense. 

§  450.  Powers  of  legislatures.  §  462. 

§  451.  As   to    powers    of    other   as- 
semblies. §  463. 

§  452.  Legislatures  are  possessed  of 

the  same  rights  as  courts.       §  464. 

§  453.  Powers    of     English     Parlia- 
ment. §  465. 

§  454.  Powers    of    inferior    legisla- 
tures, city  councils.  §  466. 

§  455.  The   power   of  the   courts  to        §  467. 
protect    themselves    is    in- 
herent. §  468. 

§  456.  Has  been  the  law  of  England 
for  centuries. 

§  457.  Contempt    committed    in    one       §  469. 
court  cannot  be  interfered 
with  in  another.  §  470. 

§  458.  The    writ    of    habeas    corpus 
may  be  resorted  to. 

§  459.  Conflict  of  authorities  as  to       §  471. 
right  of  appeal. 

§  460.  As  to  the  power  of  the  leg-       §  472. 
islature  to  abridge  the  com- 
mon law. 


What  is  necessary  for  judg- 
ment to  show. 

As  to  the  powers  of  a  court 
not  of  record. 

Appeals  may  be  allowed  by 
statute. 

The  right  to  pardon  for  con- 
tempts. 

Contempts  as  criminal  of- 
fenses. 

Newspapers. 

As  to  the  intent  of  the  con- 
temner. 

Summary  judgment  of  the 
court  where  committed  in 
its  presence. 

Procedure  in  the  matter  of 
constructive   contempts. 

In  the  absence  of  statute, 
punishment  at  the  pleasure 
of  court. 

Contempts  may  be  also  crimes 
against    the    general    laws. 

As  to  constitutional  courts, 
etc. 


§  449.  Contempts  are  a  sort  of  Quasi  Criminal  offense. 
We  find  them  classified  as  civil  and  criminal  contempts. 
The  distinction  seems  to  have  grown  out  of  the  fact, 
whether  the  contemnor  had  failed  to  do  that  which  the 
court  had  enjoined,  or  whether  he  had  done  something 
disrespectful  to  the  court,  or  had  done  something  that  had 
obstructed  the  due  administration  of  justice,  or  which 
tended  to  bring  the  court  in  disrepute.^     The  former 

1 — Dahnke  v.  People,  168  111.  Carnahan  v.  Carnahan,  143  Mich. 
102,  48  N.  E.  108,  39  L.  R.  A.  197;   390,  107  N.  W.  73.  114  A.  S.  R. 

395 


396  Ckiminal  Law 

being  classified  as  civil  and  the  latter  as  criminal  con- 
tempts. These  again  were  subdivided  into  direct  and 
constructive  contempts;  the  fonner  are  those  committed 
in  the  immediate  presence  of  the  conrt,  and  are  sum- 
marily punished,  usually  without  information,  formally 
directed  to  the  couii:,  while  the  latter  are  such  as  are 
committed  out  of  the  presence  of  the  court  and  al- 
ways tried  upon  foimal  infoiToation  filed  with  the  court, 
and  due  notice  given  and  opportunity  for  hearing  allowed. 
Thus,  a  contempt  may  be  defined  as  the  failure  or  refusal 
to  do  something  commanded  and  enjoined  by  the  court, 
or  the  doing  of  some  act,  or  the  use  of  some  language  in 
disrespect  to  the  court,  or  may  aifect  the  due  administra- 
tion of  justice,  or  which  may  have  a  tendency  to  hold  the 
court  up  to  public  ridicule  or  contempt. 

§  450.  Legislatures  are  possessed  of  the  same  rights 
and  powers  of  courts.  All  legislative  bodies  have  a  right 
to  protect  themselves  substantially  to  the  same  extent 
as  the  courts  in  the  conduct  of  their  business.  The  Con- 
gress of  the  United  States  and  the  legislatures  of  the 
several  states,  are  empowered  with  authority  to  punish 
their  own  members  for  disorderly  conduct  or  the  failure 
to  attend  their  sessions;  to  decide  contested  elections  and 
the  right  of  any  member  to  a  seat  on  the  floor;  to  deter- 
mine the  qualifications  of  their  members;  to  exercise  the 
sole  power  of  impeachment  (except,  of  course,  where  the 
power  is  by  law  conferred  upon  tlie  courts  to  try  them) ; 
where  the  examination  of  a  witness  is  required  in  the 
due  discharge  of  these  duties,  may  fine  and  imprison  a 
contumacious  witness.* 

noo,    8    Ann.     Gas.    53;     State    v.  2— Sinking   fund    case,   09   U.   S. 

Knight,  8  8.  D.  A.  509,  54   N.  W.  718;  Biirnliam  v.  Monissy,  14  Gray 

412,  44   A.   8.   R.   809;    Gonipers  v.  2'2C,,  74  Am.  Doc.  676;   Anderson  v. 

Muck   Stove   Co.,  221    U.   S.   41K,   nr,  Dunn,  6  Wh.   (U.  S.)   204;   State  v. 

(Fed.)    797,   34    L.    R.    A.    (N.    S.)  Mathews,   37   N.   IT.   450;    Constitu- 

874.  tioii   IT.  s.  Art.   1,  sec.  5,  clause  2; 


Contempts  of  Court  397 

§  451.    As  to  the  powers  of  other  assemblies,  etc.    All 

public  meetings  and  assemblies  possess  the  ijower  to  eject 
obnoxious  or  intruding  persons  from  its  presence.  But 
such  bodies  do  not  possess  any  power  to  fine  and  im- 
prison for  contempts.  Public  meetings,  clubs,  lodges  and 
associations  may  expel,  dismiss  and  discharge  any  of  its 
members  or  may  impose  fine  for  unbecoming  conduct  or 
failure  to  comply  with  its  regulations,  but  beyond  this 
they  have  no  authority.  Where  in  connection  with  such 
bodies  a  law  of  the  state  is  violated  the  power  rests  solely 
with  the  state  to  inflict  a  punishment. 

§  452.  The  powers  of  the  legislatures,  upon  common 
law  principles.  Legislative  bodies  generally  possess  no 
inherent  power  to  punish  by  fine  and  imprisonment  for 
contempts,  in  the  absence  of  constitutional  or  statutory 
provisions  granting  the  power.  No  such  power  is  granted 
by  the  common  law  in  terms.  Hence  in  this  country  the 
authority  is  derived  from  the  constitution  or  from  the 
statute.  Where  certain  powers  are  granted  the  authority 
to  enforce  them  is  conferred  by  implication.  Therefore, 
any  matters  over  which  such  bodies  have  jurisdiction 
may  be  enforced  upon  the  ground  of  necessity.  The  law 
having  authorized  legislative  bodies  to  convene  for  the 
purpose  of  conducting  public  business,  necessarily  give 
the  authority  to  enforce  needful  rules  and  regulations, 
for  the  proper  conduct  and  dispatch  of  such  business,  and 
to  this  extent  may  be  considered  a  court.  They  may  en- 
force these  rights  by  fine  and  imprisonment.^ 

(§20      this      work);      Burdett      v.  3— Anderson  v.  Dunn,  6  Wh.   (U. 

Coleman,      14      East      163.        See  S.)   204;  McCuUoch  v.  Maryland,  4 

note,   Anderson    v.    Dunn,    61    Ohio  Wh.    316;    Hale  v.   State,   55   Ohio 

216;     Kilburn     v.     Thompson,     103  St.  210,  45  N.  E.  199,  60  A.  S.  R. 

U.   S.    163,  26   U.    S.    (Fed.)    877;  691,  36  L.  R.  A.  254;   Chicago,  B. 

People  V.  Keeler,  99  N.  Y.  463,  2  &  O.  R.  Co.  v.  Gildersleeve,  219  Mo. 

N.    E.    615,    52    Am.    Rep.    49;    Ex  170,  118  S.  W.  86,  16  Ann.  Cas.  749; 

parte  Parker,  74  S.  C.  466,  55  S.  E.  Bradly   v.    State,    111    Ga.    168,   36 

122,  114  A.  S.  R.  1011,  7  Ann.  Cas.  S.  E.  630,  78  A.  S.  R.  157,  50  L. 

874.  R,  A.  691. 


398  Criminal  Law 

§  453.  Powers  of  the  English  Parliament.  The  English 
Parliament,  under  the  common  law,  possessed  all  the 
powers  and  jurisdictions  of  a  high  court  of  judicature, 
and  from  its  veiy  organization  has  possessed  the  dual 
powers  of  a  court  and  a  legislature.  Originally  Parlia- 
ment w^as  composed  of  one  body,  or  department,  and  in 
later  times  two  were  created,  the  one  being  termed 
"House  of  Commons"  and  the  other  the  "House  of 
Lords, ' '  both  being  distinct  from  each  other  so  far  as  the 
control  of  their  respective  proceedings  were  concerned. 
It  has  always  been  a  court  for  certain  purposes  and  al- 
ways possessed  the  inherent  power  to  protect  its  delibera- 
tions by  fine  and  imprisonment  and  other  remedies  and 
penalties. 

§  454.  Powers  of  inferior  legislative  bodies,  such  as 
town  councils,  etc.  Liferior  quasi  legislative  bodies  such 
as  town  councils,  city  legislative  bodies,  commissioners' 
courts  and  the  like,  have  no  authority  to  impose  punish- 
ment for  the  failure  to  comply  with  its  rules  and  regula- 
tions except  such  as  are  expressly  confeiTed  upon  them 
by  law. 

§  455.  The  power  of  the  courts  to  protect  themselves 
is  inherent,  ^riie  power  of  a  court  to  inflict  punishment 
for  contempts  committed  in  its  presence  or  against  its 
authority,  or  the  failure  to  obey  its  orders  or  process, 
the  same  being  out  of  its  presence,  is  a  necessaiy  and 
inherent  authority  growing  out  of  its  constitution  and 
organization,  for  without  such  authority  it  w^ould  be  im- 
])()ssiblc  to  conduct  the  business  for  which  it  is  created. 
Jt  lias  been  sai<l,  and  willi  coiisidernblc  show  of  reason, 
tliat  tliis  powcf  of  a  coiiii  jo  ])i'(>t('('t  its  sittings  and  de- 
]ilici-;ttii>ns  is  similar  to  the  right  oi'  self-defense.'*     The 

4 — Tn  the  case  of  Rex  v.  Almon,  8  Wosfininsfor  TI;ilI  jtossoHsos  of  vimli- 
St.  Trial,  pnfjo  HM,  the  c.oiirt  hjivh:  ciiliii^,'  their  own  aiitliorily,  is  oocvnl 
' '  Tlif    powiT    which    the    court     in        willi    thiir    louiidation    and    institu- 


Contempts  of  Court 


399 


power  of  the  courts  of  this  countiy  is  to  a  considerable 
extent  regulated  by  the  statutes  of  the  United  States  and 
of  the  several  states,  yet  we  believe  that  in  no  instance 
has  the  power  to  try  contempts  been  conferred  upon  any 
other  tribunal  to  try  and  determine  the  contempt  except 
in  the  court  in  which  the  contempt  occurred.^ 

§456.  Has  been  the  law  of  England  for  centuries. 

The  rule  in  this  country  is  that  a  court  is  clothed  with  all 
the  power  and  authority  necessary  to  hold  for  contempts 
committed  in  its  presence,  and  to  inflict  punishment  by 
fine  and  imprisonment.  The  general  rule  is  that  there  is 
no  appeal  to  another  tribunal.    Some  states  have  provided 


tion.  It  is  a  necessary  incident  to 
every  court  of  justice,  whether  of 
record  or  not,  to  fine  and  imprison 
for  a  contempt  to  the  court,  acted 
in  the  face  of  it.  The  issuing  of 
attachments  by  the  Supreme  Court 
of  Justice  in  Westminster  Hall  for 
contempts  out  of  court  stand  upon 
the  same  immemorial  usages  as  sup- 
[lorts  the  whole  fabric  of  the  com- 
mon law;  it  is  as  much  the  Lex 
Terrea,  and  within  the  exception  of 
Magna  Charta,  as  the  issuing  any 
other  process  whatever.  I  have  ex- 
amined very  carefully  to  see  if  I 
could  find  out  any  vestiges  or  traces 
of  its  introduction  but  can  find  none ; 
it  is  as  ancient  as  any  other  part  of 
the  common  law;  there  is  no  pri- 
ority, or  posteriority  to  be  discovered 
about  it,  and  therefore  cannot  be 
said  to  invade  the  common  law  but 
to  act  in  alliance  and  friendly  con- 
junction with  every  other  provision, 
whidi  Ihe  wisdom  of  our  ancestors 
lias  established  for  the  general  good 
of  society.  Some  doubts  were  sug- 
gested, whether  even  a  contempt  of 
the  court  was  punishable,  by  at- 
tachment; but  not  only  my  brethren 


and  myself,  but  likewise  all  the 
judges  of  England  think  that  with- 
out this  power  no  court  could  pos- 
sibly exist,  nay,  that  no  contempt 
could  be  committed  against  us,  we 
should  be  so  truly  contemptible. 
There  is  no  period  where  it  can  be 
said  to  have  ceased  or  discon- 
tinued." See  also  the  following:  1 
Am.  Dec.  246;  U.  S.  v.  Hudson,  2 
Cr.  32;  Anderson  v.  Dunn,  6  Wli. 
204;  State  v.  White,  2  M.  T.  Cholt 
136;  U.  S.  V.  New  Bedford  Bridge, 
1  Weed  &  M.  440 ;  Yates  v.  Lansing, 
6  Am.  Dec.  290,  9  Johnson  (N.  Y.) 
395;  Morrison  v.  McDonald,  21  Me. 
550;  State  v.  Capp,  15  N.  H.  212; 
Ex  parte  Adams,  25  Miss.  883; 
Gates  V.  McDonald,  3  Post  356; 
Skiff  V.  State,  2  la.  550;  State  v. 
Middlebrook,  43  Conn.  257;  People 
V.  Wilson,  64  111.  195;  State  v. 
Woodfine,  5  Ired.  199;  Ex  parte 
Eobertson,    19    Wall.    505. 

5 — Ex  parte  Eowe,  7  Cal.  175; 
People  V.  County  Judge,  27  Cal. 
151;  Darley's  Case,  3  Wheeler  Cr. 
Cas.  1;  First  Congregational 
Church  V.  Muscatine,  2  la.  69. 


400  Criminal  Law 

for  appeals,  but  where  the  matter  occurs  in  the  immediate 
presence  of  the  court  this  discretion  is  usually  beyond  the 
power  of  any  other  tribunal.  The  sentiment  of  a  people 
is  always  with  their  traditions,  and  they  will  suffer  many 
ills  before  they  will  consent  to  correct  the  mistake  of 
their  fore-fathers.  There  appears  to  us  to  be  three  very 
good  reasons  why  this  rule  is  wrong  in  principle.  (1)  It 
violates  one  of  the  veiy  basic  principles  of  justice.  It 
grants  the  power  to  tiy,  condemn  and  convict  to  the  same 
tribunal  before  which  the  alleged  contempt  was  com- 
mitted. No  judge  should  be  pennitted  to  sit  in  judgment 
in  his  own  case,  or  in  any  case  in  which  he  has  the  slight- 
est interest.  The  reasons  assigned  for  allowing  the  judge 
to  sit  in  judgment  summarily,  are  that  the  business  of 
the  court  could  not  be  conducted  in  the  absence  of  the 
power  to  inflict  immediate  punishment.  But  is  this  liter- 
ally true!  The  contemnor  should  be  allowed  the  same 
privilege  as  other  persons  accused  of  crime — a  hearing 
before  an  impartial  tribunal.  In  many  cases  the  judge 
feels  that  he  has  been  personally  affronted  and  the  chance 
remains  that  to  some  extent  his  prejudice  and  passions 
will  color  his  judgment.  (2)  Our  theory  of  government 
is  that  every  person  charged  w^ith  crime  sliould  have  an 
impartial  trial  before  a  court  or  jury  of  his  countrymen. 
This  principle  has  been  applied  in  the  state  of  Okla- 
homa for  it  is  in  its  constitution  that  the  defendant  in 
coiilenipt  proceedings  is  entitled  to  a  jury  trial.  (3)  In 
almost  all  other  crimes  where  there  is  infliction  of  punish- 
ment an  appeal  is  allowed  to  another  tribunal.  A  writ 
of  habeas  corpus  is  unavailing  except  where  there 
is  a  clear  want  of  jurisdiction  in  the  court  rendering  the 
judgment  of  contempt.® 

6— Easton  v.   State,  :J9   Ala.  551,  rv  Morris,  ;59  Kiin.  28,  18  Pac.  171, 

87  Anier.  Dec.  49;  Aldcraon  v.  Com-  7  A.  S.  R.  512,  and  note,  In  ro  Wil- 

mission.s,  :i2  W.  Va.  040,  9  S.  10.  868,  lianison,  2G  Pa.  St.  9,  67  Amer.  Dee. 

2.".  A.  S.  ]{.  840,  5  L.  !?.  A.  334;   In  374,  ami  note. 


Contempts  of  Court 


401 


§  457.  Contempt  committed  in  one  court  cannot  be  in- 
terfered with  in  another.  There  is  no  rule  better  estab- 
Ushed  than  that  this  authority  of  a  court  to  inflict 
punishments  for  the  contempts  before  it  cannot  be  inter- 
fered with  by  that  of  another  court.*  It  is  also  applicable 
to  the  inferior  court  as  well  as  the  superior.  In  the  absence 
of  legislative  action,  this  power  is  arbitrary.  The  judg- 
ment on  the  contempt  proceedings  rests  in  the  discretion 
of  the  court  before  whom  the  contempt  occurred.  It 
appears  that  if  a  statute  fails  to  include  in  it  certain 
acts  which  are  common  law  contempts,  the  common  law 
will  not  come  to  the  aid  of  the  statute  and  supply  the 


omission 


9 


8_We  find  the  note  of  Clark  v. 
People,  12  Am.  Dec.  184,  this  sum- 
mary by  the  compiler.  A  judg- 
ment for  a  contempt  is  not  revisable 
or  reviewable  in  any  other  court. 
This  is  general  principle,  supported 
l)y  a  great  many  authorities,  and 
rests  upon  the  same  grounds  as  the 
rule  for  forbidding  the  trial  of  con- 
tempts in  the  first  instance  in  any 
other  court,  than  the  one  in  which 
the  contempt  was  committed.  Dur- 
ing the  reign  of  James  the  I  while 
that  sturdy  champion  of  the  common 
law,  Sir  Edward  Coke,  and  his 
brethren  of  the  king's  bench  were 
engaged  in  a  struggle  against  the 
efforts  of  the  court  of  chancery  to 
administer  equitable  relief,  after  an 
adverse  judgment  at  law,  there  were 
several  instances  in  which  the  law 
courts  released  upon  habeas  corpus 
prisoners  who  had  been  committed 
for  contempts  in  chancery.  These 
cases  were  reviewed  by  Mr.  Senator 
Piatt  in  Yates  v.  Lansing,  6  Am. 
Dec.  290.  The  struggle  was  soon 
abandoned  and  it  became  the  estab- 
lished doctrine  of  the  English  courts, 
that  if  the  tribunal  pronouncing 
C.  L.— 26 


judgment  of  contempt  had  jurisdic- 
tion for  that  purpose,  the  judgment 
could  not  be  reviewed,  in  any  other 
court  upon  appeal,  writ  of  error, 
habeas  curpus,  or  any  other  proceed- 
ing. ' ' 

9 — An  interesting  case  arose  in 
the  troublous  times  of  Chas.  I.  One 
Chambers  was  committed  to  the 
court  of  star  chamber  for  infamous 
mockery  by  saying  at  the  councU 
table  that  the  merchants  of  Eng- 
land, etc.,    The  sentence 

was  that  he  should  pay  a  fine  of 
two  thousand  pounds  and  imprison- 
ment until  he  should  make  his  sub- 
mission at  the  council  table.  He 
sued  out  a  Avrit  of  habeas  corpus 
Avhich  was  returnable  before  the 
king's  bench  and  prayed  to  be  de- 
livered, because  the  sentence  was  un- 
lawful. But  all  the  court  informed 
him  that  the  court  of  star  chamber 
was  not  erected  by  the  3  Hen.  VII 
C.  I.,  but  was  a  court  for  many 
years,  and  one  of  the  most  high  and 
honorable  courts  of  justice,  and  that 
to  deliver  one  who  was  committed 
by  the  decree  of  one  of  the  court 
of  justice  was  not  the  usage  of  that 


402 


Criminal,  Law 


§  458.  Writ  of  habeas  corpus  may  be  resorted  to.    The 

court  in  the  case  of  contempt  has  no  right  to  render  a 
judgment  and  enforce  it,  where  it  has  been  arbitrarily 
assumed.  Thus  in  one  case  the  court  said,  "A  court  may 
have  authority  to  hear  and  determine  a  cause ;  such  power 
does  not  authorize  the  court  simply  because  it  has  juris- 
diction to  render  some  judgment,  to  trample  down  the 
fundamental  and  constitutional  rights  by  pronouncing 
a  sentence  unauthorized  by  law." 

Where  the  judgment  is  that  the  relator  stands  com- 
mitted to  prison  mitil  he  purges  himself,  there  being  no 
limitation,  as  to  the  term  of  imprisonment,  the  same  is 
void  and  he  may  be  discharged  upon  the  writ  of  habeas 
corpus."    Hence  the  judgment  should  be  specific  as  to  the 


court.  Cro.  Car.  168.  A  member  of 
the  House  of  Commons  was  com- 
mitted for  contempt  of  the  privi- 
leges of  the  house  and  applied  for 
a  release  upon  ■writ  of  habeas  cor- 
pus and  in  their  opinion  the  judges 
said  in  denying  the  application: 
' '  The  House  of  Commons  is  a  su- 
preme court  of  judicature  with  re- 
spect to  its  own  privileges,  and  es- 
pecially its  own  members.  This 
court  never  discharges  persons  com- 
mitted for  a  contempt  to  any  su- 
preme court,  such  as  the  two  houses 
of  Parliament  and  the  courts  of 
Westminster  hall.  The  law  has 
entrusted  to  these  the  power  of 
judging  of  their  own  contempts  in 
the  last  resort.  If  there  be  any 
appeal  from  them,  it  would  detract 
from  their  dignity  and  they  would 
cease  to  be  8Ui)reMie  courts.  Pas- 
Ion's  Ca.se,  1  E(l\v.  111.  Writs  of 
attachments  and  coniiuitiiients  for 
contempts  express  no  particulars  of 
the  contempts,  because  if  expressed 
they  could  not  bo  examined.  The 
legislature  has  aflirnied  and  ap 
jirovcd   (jf  the   procesH  of  contempts 


as  established  by  the  common  law. 
620  Morrill  16,  Acts  386;  U.  S.  v. 
Hudson,   7  Crunch.  32. 

10— Es  parte  O 'Brian,  30  S.  W. 
(Mo.)  150;  People  v.  Cassets,  5  Hill 
1 64 ;  Welsh  v.  Nash,  8  East  Cit.  403  ; 
Ex  parte  Clark,  126  Cal.  235,  58 
Pac.  546,  77  A.  S.  E.  176,  46  L.  E. 
A.  835 ;  Burnham  v.  Morrissey,  14 
Gray  (Mass.)  226,  74  Am.  Dec.  676; 
Ex  parte  Adams,  25  Miss.  883,  59 
Am.  Dec.  234;  Ex  parte  Arnold,  128 
Mo.  256,  30  S.  W.  768,  49  A.  S.  E. 
557,  33  L.  E.  A.  386;  In  re  Fanton, 
55  Neb.  703,  55  N.  W.  447,  70  A.  S. 
E.  418;  Com.  v.  Perkins,  124  Pa. 
St.  36,  16  Atl.  525,  2  L.  E.  A.  223; 
Ex  parte  Parks,  37  Tex.  App.  590, 
40  S.  W.  300,  66  A.  S.  E.  835; 
State  v.  King,  17  La.  Ann.  696, 
17  So.  254,  49  A.  S.  E.  374;  Mis- 
kummins  v.  Shaver,  8  Wyo.  392, 
58  Pac.  411,  49  L.  E.  A.  831;  Ex 
parte  Warfield,  40  Tex.  App.  413,  50 
S.  W.  933,  76  A.  S.  E.  724. 

11— Ex  parte  Kerby,  34  S.  W. 
(Texas)  635;  Ex  parte  Eolierlson, 
11  S.  W.  (Tex.)  669;  I'jatt  v.  Har- 
rison,   71    Am.    Dec.    389;    Bell    v. 


Contempts  of  Court 


403 


term  of  imprisonment,  that  is,  the  judgment  should  be 
certain  and  fixed. 


§  459.  Conflict  in  the  authorities  as  to  right  of  appeal. 
There  are  authorities  holding  that  a  commitment  for  a 
contempt  may  be  reviewed  by  other  courts  upon  appeal  or 
writ  or  error.  These  authorities  appear  to  be  based  upon 
the  ground  that  contempts  are  criminal  violations;  that 
when  a  statute  allows  the  right  of  appeal  in  other  crim- 
inal actions,  it  by  implication  includes  that  of  con- 
tempts.^^   The  general  rule  appears  to  be  in  the  United 


Sato,  4;j  Am.  Dec.  130;  Ex  parte 
(iracc,  17  la.  208;  State  v.  Su- 
l.erior  Court,  56  Wasli.  649,  106 
Pac.  150,  28  L.  K.  A.  (N.  S.) 
576;  State  v.  Bland,  189  Mo.  197, 
88  S.  W.  28,  3  Ann.  Cas.  1044; 
Karel  v.  Conlan,  155  Wis.  221,  144 
N.  W.  266,  49  L.  E.  A.  (N.  S.)  826; 
Cooper  V.  People,  13  Colo.  337,  22 
Pac.  700,  6  L.  E.  A.,  430;  Stewart  v. 
People,  3  Scam.  395;  Ex  parte 
Thatcher,  2  Gilm.  170;  Buel  v. 
Street,  9  John  441 ;  McCurdie  v.  Sen- 
ior, 4  Paige  378;  Shannon  v.  State, 
18  Wis.  604;  Hendhouser  v.  U.  S. 
Heisk,  702;  Turner  v.  Com.,  2  Met. 
(N.  Y.)  619  As  to  the  proposition 
that  contempts  are  criminal  cases, 
see  Hill  v.  Crandall,  52  111.  70; 
State  V.  Sanvient,  24  La.  Ann.  119; 
and  tliat  the  governor  may  pardon, 
see  same. 

12— Casey  v.  State,  25  Tex.  380; 
says,  that  the  appeal  does  not  lie 
even  where  there  is  a  jury  trial. 
That  the  contempt  is  not  a  crime, 
as  defined  by  the  writer  on  the 
criminal  law,  although  they  partake 
of  a  criminal  nature,  but  are  not 
crimes  in  the  strictness  of  the  term. 
Lockwood  V.  State,  1  Ind.  161;  Ex 
parte  Adams,  25  Miss.  883;  Wilson 


V.  Williams,  36  Miss.  331;  Shultock 
V.  State,  51  Miss.  50;  Watson  v. 
Thomas,  6  111.  248;  Patton  v.  Har- 
ris, 15  B.  Mon.  607;  Floid  v.  State, 
7  Tex.  215;  Barley's  Case,  3  Wheel. 
Cr.  L.  L.;  State  v.  Giles,  10  Wis. 
101;  Velor  v.  Barrton,  27  Vt.  56; 
State  V.  Towle,  42  N.  N.  540;  Cas- 
sart  V.  State:  In  this  case  the  court 
says  that  Digest  title  Criminal  Pro- 
ceedings, sec.  225:  "Allowing  ap- 
peals and  writs  of  error  in  criminal 
cases,  applies  to  prosecution  by  in- 
dictment or  presentment  and  is  not 
to  extend  nor  in  terms,  to  summary 
convictions  for  contempt  of  court, 
which  though  in  the  nature  of  crim- 
inal proceedings,  are  not  public 
prosecutions  for  any  criminal 
charge,  which  an  accused  can  be 
put  to  answer  by  indictment,  pre- 
sentment or  impeachment,  and  the 
trial  of  which  a  jury  can  be  em- 
panelled." The  power  to  punish 
summarily  and  upon  its  own  mo- 
tion, contempts  offered  to  its  dig- 
nity and  lawful  authority,  is  inher- 
ent in   every  court. 

Easton  v.  State,  39  Ala.  551; 
Martin's  Case,  5  Yeager  456;  Peo- 
ple v.  Sturtevant,  9  N.  Y.  263; 
many  other  cases  may  be  compiled 


404  Criminal  Law 

States  that  there  is  an  appeal  from  a  commitment  by  a 
court  of  competent  jurisdiction.  There  appears  to  be 
some  conflict  of  the  cases  on  this  point,  but  the  great 
weight  of  the  authorities  support  the  appeal  or  writ  of 
eiTor,  and  the  right  to  resort  to  the  writ  of  habeas  corpus 
in  the  case  of  the  want  of  the  jurisdiction  of  the  court 
issuing  the  commitment  and,  of  course,  the  right  of  the 
legislature  to  grant  the  right.  On  a  review  of  a  con- 
tempt proceeding  (the  court  having  jurisdiction)  it  is 
presumed  that  the  court  properly  considered  all  matters 
offered  as  a  defense  or  extenuation,  and  that  its  judg- 
ment is  final.'^'  But  where  a  commitment  ordered  by  -a 
court,  not  having  jurisdiction,  the  supreme  court  will 
grant  mandamus,  to  compel  the  vacation  of  the  order  of 
commitment,  has  been  held  in  the  state  of  Michigan.^* 
So  also,  in  the  state  of  Colorado,  the  appellate  court  may 
set  aside  an  order  made  by  a  court  having  no  jurisdic- 
tion.^^ 

§  460.  As  to  the  power  of  the  legislature  to  abridge 
the  common  law.  There  is  no  uniformity  in  the  adju- 
dicated cases,  touching  the  right  of  the  legislature  to 

on  this  point.     In  the  case  of  Clark  this   power,   needs  must  rest  in  the 

V.   People,    12   Am.    Dec.    178;    says  discretion  of  the  magistrate  and  as 

that    "the    power    to    punish    for  .such  is  not  subject  to  review  in  the 

contempt  is  an  incident  to  all  courts  circuit   court." 

of     justice    independent     of     statu-  13 — Land  &  Water  Co.   v.  Super- 

tory  provLsions,  and  that  the  power  ior    Court    of    Fresno    Co.,    93    Cal. 

to  enforce  obedience  of  orders,  pun-  139;  Wilson  v.  Hickman,  35  W.  Va. 

ish   for  contempts  by   fine  and  im-  705. 

prLsonment,   are   powers   which   may  14 — Bwartz    v.    Barry,   51    N.   W. 

not  be  dispen-sed  with  because  they  279   (Mich.),  90  Mich.  417. 

are  necessary  to  tiic  existence  of  all  15 — Wyatt    v.     People,     28     Pac. 

others.     The  distinction  that  courts  9G1    (Cal.).     Tlie  constitution  guar- 

of    inferior    jurisdiction,    not    hav-  antces  the  right  to  trial   by  a  jury 

ing  a  general  power  to  fine  and  im-  and  due  process  of  law,  do  not  ap- 

prison,  for  contempts  are  restricted  ply   to  contempts.     Also  see  Barry 

to  such  as  are,  committed  in  their  v.  Superior   Court   of  the  City  and 

presence,   will  not  alter  the   rule   in  Tounty    of    San    Francisco,    1    Cal. 

the  present   case.      The   exercise   of  48G.     Also  Tn  re  Barry,  4  Cal.  5G2. 


Contempts  of  Court 


405 


abrogate  or  abridge  the  conunon  law.^^  One  line  of  the 
cases  hold  that  the  legislatures  have  no  right  to  abridge 
the  common  law,  by  statute;  that  the  power  is  inherent 
in  the  court,  and  it  is  the  prerogative  of  the  court  to 
control  its  own  matters  as  to  its  sittings  and  its  judg- 
ments, orders  and  decrees,  while  another  line  holds  the 
reverse.  It  appears  to  be  agreed  by  all  that  the  legis- 
lature may  provide  the  manner  in  which  a  contempt  may 
be  presented,  and  also  has  the  power  to  designate  spe- 
cifically what,  in  a  given  case,  shall  constitute  punish- 
ment. This  rule,  however,  takes  from  the  court  the  power 
it  possessed  under  the  common  law." 


16 — In  the  case  of  State  v.  Gal- 
loway &  Ehea,  98  Am.  Dec.  411, 
the  court  says,  "that  if  the  judg- 
ment for  the  contempt  be  for  cause 
for  which  the  court  has  no  jurisdic- 
tion, and  it  so  appearing  from  the 
record,  the  judgment  is  void  and  no 
justification  for  the  imprisonment. 
It  stands  on  the  law  of  universal 
application  to  the  judgment  of 
courts,  that  if  the  court  had  no 
jurisdiction,  the  judgment  is  void. 
But  if,  therefore,  it  appears  upon 
the  face  of  the  judgment  on  the 
record  of  the  proceedings,  upon 
which  the  judgment  is  rendered 
that  the  judgment  is  upon  a  cause 
of  contempt,  for  which  the  court 
has  no  statutory  power  to  punish, 
or  if  it  so  appears,  that  the  pun- 
ishment inflicted  is  not  within  the 
power  prescribed  by  statute  for  such 
cause,  the  judgment  will  be  void 
for  want  of  jurisdiction  of  the 
court,  and  shall  be  no  justification 
for  such  imprisonment  or  sentence, 
and  no  sufficient  answer  to  the  writ 
of  habeas  corpus. 

The  sixth  subdivision  of  sec.  4105 
of  the  Code  of  Tennessee  was  not 
intended  to  embrace  and  do  not  em- 


brace the  vast  undefined  scope  of 
contempts  at  common  law  out  side 
of  the  classes  prescribed  by  statu- 
tory   enactments. 

The  power  to  punish  for  con- 
tempts, where  limitations  have 
been  put  on  the  power  by  statute, 
came  under  review  in  the  case  of 
the  United  States  for  the  Eastern 
District  of  Pennsylvania,  where 
Mr.  Justice  Baldwin  of  the  Supreme 
Court  of  the  United  States,  held  in 
the  case  Ex  parte  Poldson  that  the 
act  of  Congress  of  March,  1831, 
chap.  99,  which  is  similar  to  the 
Code  of  Tennessee  on  the  subject, 
withheld  from  the  courts  of  the 
United  States,  the  common  law 
power  to  protect  themselves,  wit- 
nesses and  offices  against  the  libels 
of  the  press,  though  circulating  and 
published  pending  the  trial  of  the 
case. 

For  the  views  of  Chancellor  Kent, 
see   1   Kent's   Commentaries  301. 

17 — State  V.  Marrell,  16  Ark. 
384,  holds  in  effect  that  a  statute 
is  not  a  limitation  upon  the  power 
of  the  court  to  punish  for  contempt, 
based  upon  a  statement  of  facts, 
not  included  in  those  set  out  in  the 


•406 


CEiMiiSrAL  Law 


The  rule  is  general  in  the  absence  of  statutory  pro- 
visions, that  the  court  is  empowered  to  fine  and  im- 
prison and  to  do  such  other  things  it  deems  necessary  to 
protect  itself.  That  this  power  is  due  them  as  a  matter 
of  right;  that  this  power  cannot  be  delegated  to  or  as- 
sumed by  another  court,  unless  by  express  law.^^ 


§  461.  What  is  necessary  for  judgment  to  show.    At 

common  law  the  rule  is  believed  to  be  well  settled,  that 
the  judgment  of  a  committal  for  contempt,  need  not  recite, 
upon  its  face  the  facts  upon  which  the  commitment  is  based. 
The  common  law  did  not,  nor,  except  as  modified  by 
statute,  is  any  court  limited  to  any  particular  state  of 
case.^^  The  whole  matter  rests  in  the  sound  discretion  of 


statute.  If  necessity  arise  in  a  par- 
ticular case  not  included  in  the 
statute,  that  the  common  law  or 
the  inherent  power  of  the  court 
could  be  resorted  to,  to  aid  the 
court.  See  U.  S.  v.  Holmes,  1 
Wall.,  Jr.  1;  Gallord  v.  Gallord, 
44   Cal.   475. 

In  the  case  of  Dunham  v.  State, 
6  la.  245,  the  court  held,  that  a 
commitment  fur  contempt  would  be 
limited  to  the  specific  causes  and 
designations  contained  in  the  stat- 
ute. 

In  Illinois  the  same  rule  is  ad- 
hered to.  People  V.  Story,  79  111. 
11145;  Ex  parte  Kobertson,  19 
Wall.  505;  U.  S.  Hudson,  7  Cr.  ?.2; 
Anderson  v.  Dunn,  6  Wh.  204 ;  Peo- 
ple V.  Wilson,  64  Dl.  195;  U.  S.  v. 
New  Bedford,  1  Wood.  &  M.  440. 

18— State  V.  Woodfin,  Trcd.  152, 
42  Am.  Dec.  161  and  note;  Noal  v. 
State,  50  Am.  Dec.  218  and  note; 
Neal  V.  State,  50  Am.  Dec.  281,  9 
Ark.  354,  and  note;  Easton  v.  State, 
.39  Ala.  .551,  87  Am.  Dec.  491; 
Clark  V.  State,  Prccso,  .340  (111.), 
12  Am.  Dec.  184,  and  note. 


19 — From  this  rule  of  the  com- 
mon law,  we  think  proper  to  de- 
part to  the  extent  to  require,  that 
in  the  courts  of  this  State,  it  shall 
be  essential,  to  the  validity  of  a 
judgment  for  contempt,  that  it 
shall  state  upon  its  face  the  cause 
of  contempt  alleged,  as  the  grounds 
of  jurisdiction  on  which  the  judg- 
ment is  rendered.  The  ruling  made 
here  is  the  proper  result  from  the 
legislative  abridgement  of  the  in- 
definite power  of  the  common  law 
vested  in  the  courts  to  punish  for 
contempts.  The  jurisdiction  at 
common  law  was  indefinite  and  gen- 
eral. By  statute  it  is  confined  to 
specific  cause?.  It  is,  therefore,  in 
pursuance  with  the  policy  indi- 
cated by  the  legislature,  and  war- 
ranted in  our  judgment  by  sound 
principle,  to  hold  that  the  alleged 
cause  of  contempt  upon  which  the 
judgment,  or  the  ground  of  juris- 
diction, upon  which  the  judgment 
must  rest  for  its  validity.  In  this 
way  the  proper  power  of  the  courts 
to  vindicate  their  dignity  and 
maintain     their     safety,     efllciency 


Contempts  of  Court  407 

the  judge.  If  the  court  has  jurisdiction,  it  is  not  necessaiy 
to  recite  in  the  judgment  what  grounds  the  commitment 
was  founded  upon.  The  judgment  imports  upon  its  face 
absolute  verity,  and  no  court  of  coordinate  or  superior 
jurisdiction  has  any  authority  to  review  it.  As  stated 
elsewhere,  the  presumption  is  that  the  court  inquired 
into  all  matters  of  defense  and  explanation  on  the  part 
of  the  accused;  this  presumption  is  one  of  law  and  not 
of  fact,  and  cannot  be  rebutted  or  inquired  into  in  any 
other  court  or  in  any  other  case.  Even  in  cases  where 
the  writ  of  habeas  corpus  is  available,  it  is  not  permitted 
to  enter  Into  the  investigation  of  the  irregularities  on  the 
part  of  the  trial  court.^** 

§  462.  As  to  power  of  courts  not  of  record.  There  is  a 
great  want  of  harmony  in  the  authorities,  as  to  whether 
inferior  courts  or  courts  not  of  record  possess  the  inherent 
power  to  commit  for  contempts.  Some  of  them  hold  that 
there  is  no  real  difference  between  courts  of  record  and 
courts  not  of  record;  and  in  reason  there  is  none.  The 
weight  of  authority  appears  to  support  the  rule  that  all 
courts  have  the  power  to  commit  for  contempts  regard- 

and  existence,  may,  to  a  large  ex-  made  out  by  a  statement  of  proper 

tent,  be  brought  into  harmony  with  facts,     and     findings     of     the     con- 

the    protection    and    safety    of    the  tempt     by     the     court     upon     those 

citizen,     against     the      inadvertent  facts."     "But  we  do  not  hold  that 

or     unauthorized     exercise     of     the  such  is  the  law."     The  court  in  the 

power  of  the  courts  to  punish  con-  case  of  Eaton  v.   State,  continuing 

tempts."      State     v.     Galloway     «&  and    among    other    things    says    it 

Rhea,   98  Am.   Dee.   404;    Eaton  v.  adopts    the   law    laid    down    in    the 

State,  87  Am.  Dec.  59.  Simmons   case   and   then   adds   that 

In  the  case  of  Ex  parte  Simmons  the  appellant  is  without  remedy  in 

the  court  says:    "It  does  not  seem  any  court  or  in  any  form, 
to    us    that    this    order   can    be    im-  20 — See  Ex  parte  McGill,   6  Tex. 

poached.     It  was  suggested  that  it  App.  498;   Peck  v.  Strauss,  33  Cal. 

might— because    it    does    not    suffi-  685 ;  Owens  v.  Gonzales,  4  Dill.  438 ; 

ciently  set  out  the  facts  on  which  Ex  parte  Kellog,  56  Vt.  511;  U.  S. 

the  contempt  arose;  and  it  was  sup-  v.    Laurence,   Black.    306;    State   v. 

posed,   that   an    order   was    void    in  Brewster,   7   Vt.   118;   Ex  parte  Ah 

which    a   case    of   contempt    is    not  Men,  77  Cal.  178. 


408  Ceiminal  Law 

less  of  the  fact  that  some  of  them  are  deemed  to  be  courts 
of  inferior  jurisdiction.  Especially  is  this  true  in  the  case 
the  contempt  is  committed  in  the  presence  of  the  court.^^ 
Granting  the  inherent  right  in  the  superior  court,  then 
for  a  better  reason  the  same  right  should  be  given  the 
court  of  less  jurisdiction;  there  should  be  no  difference  in 
the  validity  of  the  judgment  of  the  courts  of  different  ju- 
risdiction, in  so  far  as  the  rights  to  make  and  to  enforce 
their  orders  and  judgments  are  concerned.  The  statutes, 
however,  usually  grant  to  these  inferior  courts  all 
the  authority  necessary  to  cany  on  their  business  and  to 
protect  themselves  against  the  contempts,  and  di'sparage- 
ments  of  orders  and  decrees. 

§  463.  Appeals  may  be  allowed  by  statute.    Except 

where  allowed  by  statute,  the  right  to  appeal  from  a  com- 
mitment is  denied,  in  the  case  of  contempt  of  court.  The 
writ  of  habeas  corpus  is  available  in  two  instances:  (1) — 
Where  the  court  before  whom  the  commitment  lacks 
jurisdiction.  2 — That  the  committing  court  sliould  iind 
the  factum  of  contempt,  i.  e.,  that  there  should  be  a  judg- 
ment reciting  the  contempt  and  a  proper  order  entered 
in  the  judi»inent  records  and  a  commitment  following  in 
regular  order  after  the  judgment.  No  verbal  order  of 
commitment  is  permissible.'^''    In  some  instances  it  ap- 

21— The       followiii^r      .•lulhoiitii'H  Newton    v.    Lockl.-iml,    77    111.    103; 

cloiiy     the     authority     of     inferior  ('l;irk  v.   People,   112  Am.   Dec.   178; 

courts  to  commit   for  contempts,  in  I'luukett   v.   Hamilton,    136   Ga.   72, 

the  absence  of  power  conferred  by  70    S.    E.    781,    Ann.    Cas.    1912  B, 

statute.      Brooks   v.   Com.,    12    S.   &  1250,    35    L.    R.    A.    (N.    S.)    583; 

R.  75;   Rutherford  v.  Holmes,  66  N.  Farnhani    v.    Coleman,    10    S.    Dak. 

Y.   368;   Morrison   v.   McDonald,   21  342,   103   N.  W.   161,   117   A.   S.   R. 

Me.   .550;   Haight  v.  Lucia,  36  Wis.  944,    and    note    953;     Goodhart    v. 

3.55.  State,  84  Com.  60,  78  Atl  853,  Ann. 

The     fiillowinj,'    cases    anirin    that  Cas.    1912  B,    1297. 
inferior  courts  may  commit  for  con-  22 — Hurley    v.    Com.,    188    Ma.ss. 

trmpf.M  committed  in  tlieir  presence:  443,  74  N.  E.  677,  3  Ann.  Cas.  757, 

Liming  V.  Bnrthom,  2  Bay  11;  Mat-  :iiiil     note;     Shatlock    v.    State,    51 

ter  V.  Watson,  2  Nelson,  69   N.   Y.  Miss.   50,   24   Am.    Rep.    624;    State 

536;   Brown   v.   People,   19  111.  613;  v.    Galloway,   5   Cold.    (Tcnn.)    326, 


Contempts  of  Court  409 

pears  that  mandamus  may  be  resorted  to  to  compel  the 
committing  court  to  revoke  an  order  of  commitment. 
Also  the  writ  of  certiorari  has  been  used  for  the  same 
puii)ose.^^ 

§  464.  The  right  to  pardon  for  contempts.  The  trend 
of  the  authorities  are  that  the  pardoning  power  of  the 
state  may  discharge  one  convicted  of  a  contempt.^*  A 
majority  of  the  cases  that  have  been  passed  upon,  sus- 
tains the  doctrine  that  the  court's  ruling  may  be  vacated 
in  this  way.  In  a  civil  case  in  the  state  of  Texas,  where 
the  conunitting  judge  was  sued  for  ordering  the  sheriff 
to  hold  and  imprison  the  accused  after  the  governor  had 
pardoned,  the  court  held  that  the  governor,  under  the 
laws,  had  no  pardoning  power,  for  the  reason  that  the 
offense  of  contempts  was  not  under  the  statute,  a  crime. 

The  rule  is  well  settled  in  the  Texas  courts  that  con- 
tempts are,  in  the  absence  of  express  statute,  declaring 
so,  is  not  a  crime.^^ 

§  465.  Are  contempts  criminal  offenses?  There  ap- 
pears to  be  no  harmony  in  the  authorities,  whether  con- 

98  Ain.  Dec.  404;   Taylor  v.  Good-  costs.      Sharp    v.    State,    102    Tenn. 

rich,  40  S.  W.  (Tex.)  515;  Ex  parte  9,   49   S.  W.   752,   73  A.   S.   E.   851, 

0 'Brian,  30  S.  W.    (Mo.)    160;   Ex  43  L.  R.  A.  788;   Ex  parte  Hickey, 

parte  Kerby,  34  S.  W.   (Tex.)  635;  4  Smede  &  M.   783;    a  Miss.   Case, 

Ex  parte  Burford,  1  Cranch.  456.  State  v.  Sauvinet,  24  La.  Ann.  119, 

23— Harris  v.  State,  35  Ark.  418.  13    Am.    Eep.    115;    Ee    Simms,    54 

24 — As    the    pardoning    power    is  Kans.  1,  25  L.  E.  A.  110. 

vested    in    the     President     of    the  The     following     case     deny     the 

United    States,    exclusively,    it    fol-  right  to  pardon  for  a  contempt  for 

lows  that  the  court  cannot  remit  the  the  reason  that  it  is  not  a  crime, 

penalty    or    discharge    the    offender  Taylor  v.  Goodrich,  40  S.  W.  (Tex.) 

from  his  imprisonment,  upon  proof  515;    In    re    Chadwick,    67    N.    W. 

of  his  ability  to  pay  cost.     In  re  1074. 

IMiller,    7    Black.    C.    C.    32.      This  25— Crow   v.    State,   24    Tex.    12; 

case  was  decided  upon  a  statute  of  Casey  v.  State,  25  Tex.  384;   State 

the    United    States    permitting    the  v.    Thunnond,    37    Tex.    SID;    Scott 

defendant     to      discharge     himself,  v.  State,  86  Tex.  321,  24  S.  W.  780. 
upon  proof  of  his  inability  to  pay 


410  Criminal  Law 

tempts  of  court  are  civil  or  criminal.  We  find  in  the 
books  such  expressions  as  "Contempts  are  Crimes  and 
Misdemeanors, ' '  while  we  find  decisions  and  the  language 
of  the  judges,  classing  them  sometimes  one,  and  some- 
times the  other.  They,  in  the  strict  technical  sense,  are 
neither  the  one  nor  the  other.  The  procedure  generally  is 
entirely  different  from  that  in  a  criminal  cause,  and  yet 
the  judgment  and  the  punishment  is  the  same  as  that  in 
a  criminal  misdemeanor,  i.  e.,  by  fine  and  imprisonment 
in  case  the  same  is  not  paid,  upon  the  same  principle  as 
that  of  other  minor  crimes.  The  main  distinction  between 
a  civil  and  a  criminal  action  is  in  the  manner  of  en- 
forcing redress;  in  the  former  the  arm  of  the  court  in 
the  nature  of  a  writ  of  execution  issues  to  satisfy  the 
judgment  by  impounding  the  property  of  the  defendant 
in  the  execution;  in  the  latter  the  judgment  of  conviction 
is  enforced  either  by  imprisonment  or  the  payment  of 
a  sum  of  money,  and  in  the  event  of  the  failure  to  pay 
the  same,  a  commitment  to  prison  till  it  is  extinguished 
at  the  rate  of  so  many  dollars  per  day,  or  in  some  cases 
until  he  purges  himself.  The  weight  of  authority,  and 
as  well  as  sound  reason  based  upon  the  nature  and  the 
object  intended  to  be  attained  by  the  enforcement  of  a 
commitment  for  contempt,  constitutes  it  a  crime.'^^ 

§  466.  Comments  concerning  cause  pending.  A  reflec- 
tion upon  the  court  or  judge,  concerning  a  cause  there 
pending,  may  be  punished  as  a  contempt,  whether  it  is 
made  in  the  presence  of  the  court  or  not.^'^ 

26 — For  a    full   discussion   of  the  27 — Gloho      Newspaper      Co.      v. 

same   the   following  case   will   prove  Com.,  188  Mass.  449,  74  N.  E.  C82, 

a    benefit    to    the    investigator.      Ex  3   Ann.   Cas.   761  ;   Ex   parte  Barry, 

parte  Gould,  99  Cal.  360;  Wyatt  v.  85   V.nl.  603,  25   Pac.  256,   20  A.   S. 

Pooplo,   17  Col.  252;  Lester  v.  Peo-  R.  248;  In  re  Stusoc,  48  N.  II.  428, 

pic,   150   111.  408;   Roberts  v.   Hack-  97  Am.  Dec.  626;  State  v.  Trugwell, 

ney,    109   Ky.   265,   58   S.   W.   810;  10  Wash.  238,  52  Pac.  1056,  43  L. 

In  re  Mnrphcy,  39  Wis.   286.     Sec  R.    A.    717;    State  v.   Frew,   24   W, 

also  C.  Y.  C.  9,  page  34.  Vs.  416.     In  the  matter  of  the  im- 


Contempts  of  Court  411 

In  order  to  hold  a  newspaper  for  contemptuous  lan- 
guage, writing  and  pictures,  or  other  contemptuous  re- 
flection upon  the  court,  it  must  be  directed  to  and  con- 
cerning a  cause  then  pending  before  it :  It  is  not  contempt 
if  directed  to  a  cause  then  disposed  of.  It  also  may  be  a 
contempt  of  court  to  reflect  upon  the  officers  of  the  court 
or  the  jurors,  witnesses,  etc.  It  appears  to  be  within 
the  inherent  powers  of  the  court  to  prohibit  by  order 
newspapers  from  publishing  the  evidence  in  a  cause  then 
pending,  and  a  violation  of  the  order  is  cause  for 
contempt  proceedings.^^  Where  the  nature  of  the  cause 
demands  it,  the  court  may  make  an  order  that  only  such 
persons  may  be  present  at  the  time  of  the  trial  as  have 
a  ticket  from  the  executive  officer  of  the  court  allowing 
them  to  be  present.  Any  violation  of  this  order  would  be 
a  cause  for  a  commitment.^^ 

§  467.  As  to  the  intent  of  the  contemnor.  It  is  con- 
tended by  reputable  authority  that  it  is  not  permissible 
to  allow  as  a  defense  to  a  commitment  for  contempt  that 
the  accused  show  that  he  did  not  intend  a  contempt  of 
the  court.^**  It  may  be  said  that  this  is  the  general  rule, 
but  in  some  instances  it  will  purge  the  party  of  the  con- 

peachment,  Parsons,  1  Cal.  App.  54;  Prior,  18  Kans.  72,  26  Am.  E.  746, 

Fleming's  Case,  23   N.  H.   162;   Ex  and   note. 

parte    Turner,    3    Mont.    D.    &    D.  28— King  v.   Clement,  4  B.   &  O. 

523;   Tichborne  v.  Tichborne,  22  L.  218;    Stewart    v.    People,    3    Scam. 

T.  \V.  255;   Kilcot  v.  Sharp,  52  N.  395;    Dunham   v.   State,   6    la.   245. 

J.    L.    154.      Publications    of   news-  Courts  have  power  by  injunction  to 

papers    commenting    upon    the    pro-  prohibit    a    publication.      Brooks    v. 

ceedings  pending  in  court,  which  re-  Evans,  29  N.  L.  J.  L.  616. 

licet  upon  judge,  jury  or  parties,  or  29 — Com.    v.    Jackson,    38    S.    W. 

which     impugn     improper     motives  (Ky.)    424;    People   v.    Murrey,    50 

to    the    court    in    the    judgment    in  N.    W.    995. 

the  same  is  subject  to  commitment  30 — Sharp  v.  State,  102  Tenn.  9, 

for  contempts.    See  following  cases:  49   S.  W.   752,  73  A.   S.  E.   851,  43 

Meyers  v.  State,  46  Ohio   St.  473;  L.   E.   A.   788;    Re  Sims,  54   Kans. 

Ex  parte  Berry,  85  Cal.  603;   In  re  1,   25   L.   E.   A.   110. 


412  Criminal  Law 

tempt,  and  especially  is  this  true  when  it  appears  that 
the  objectionable  language  or  acts  are  of  no  serious  na- 
ture.^^  The  acts  complained  of  are  usually  judged  of 
by  the  manner  in  which  it  is  given.^^ 

§  468.  Summary  judgment  of  the  court  in  contempt 
committed  in  its  presence.  The  general  rule  is,  where 
the  contempt  takes  place  in  the  presence  of  the  court,  is 
for  the  court  to  deal  with  it  in  a  summaiy  manner,  and 
without  notice  to  the  relator.^*  The  early  practice  appears 
to  have  been  for  the  court  to  take  the  matter  up  at  the 
time  and  to  order  a  judgment  of  commitment  without  any 
notice  or  the  granting  to  the  relator  time  for  his  defense, 
and  tune  for  him  to  purge  himself.  But  the  court  may 
give  time  for  the  relator  to  purge  himself  and  to  file 
an  answer  to  the  charge. 

It  is  so  repugnant  to  the  spirit  of  our  institutions, 
not  to  allow  the  accused  a  fair  and  impartial  trial  where 
he  stands  charged  with  any  crime,  that  the  courts,  more 
through  their  liberality,  than  any  positive  rule  of  law, 
pemiit  the  relator  in  cases  arising  within  their  pres- 
ence, to  interpose  his  defense  to  his  acts  of  contempt. 

§  469.  Procedure  in  the  matter  of  constructive  con- 
tempts. Constructive  contempts,  or  contempts  ct)nHuit- 
ted  out  of  the  presence  of  the  court  against  which  tlie 

31_I>eoi)le  V.  Wilson,  C9  111.  219;  Siodtr     v.     State,     52     Me.     152; 

People  V.  Frier,   1  Caines  484.  Fisher    v.    Procasco,   2    Brosne,   Pa. 

32— Henry   v.    Ellis,   49   la.   205;  127. 
People   V.   Frio,   2  Johns.   290;   Eex  34— Arnold  v.  Com.,  80  Ky.  300, 

V.    Donnell,    14    Cox    C.   C.   474;    U.  44   Am.   Rep.   480;    State  v.  Kaiser 

.S.    V.    Late    Cori)oration    of    Church  (Ore.),   8   L.   R.   A.   584,   note   58G, 

of  JesuH  Christ   of  the  Latter  Day  and    cases    there    cited.      Cooper    v. 

Kaints,  21   Pac.    (Utah)   524;   State  People,   13   Colo.  337,   22  Pac.  790, 

V.    Gibson,   W.    Va.,    10    S.    E.    58;  6  L.  R.  A.  430,  and  note.     State  v. 

McCarniiick  v.  Sheridan,  2  Op.  Pac.  Shepherd,    177    Mo.   205,   76    S.   W. 

Utah,  24-26.     Jn   re  Coper,  32  Vt.  79,  99  A.  S.  R.  624;  State  v.  John 

258;  State  v.  Crimun,  7  N.  D.  299;  son,  77  Ohio  St.  461,  83  N.  E.  702, 

State  V.  Garland,  2.1  La.  Ann.  532;  21    L.  R.  A.   (N.  S.)   905. 


Contempts  of  Court  413 

same  is  directed,  the  practice  is  that  the  same  be  pre- 
sented upon  the  affidavit,  or  upon  the  information  ^^  of 
some  person  who  knows  of  the  contempt,  setting  forth 
the  causes  thereof.  The  best  rule  is  for  the  informant  to 
know  the  statements  he  makes  to  be  time,  but  this  has 
been  allow^ed  to  be  made  upon  the  information  and  belief 
of  the  party.'^  The  court  may  cause  a  rule  that  the 
relator  be  given  to  a  time  certain  to  purge  himself,  but 
in  the  case  of  a  great  and  a  flagrant  contempt  where 
the  facts  are  before  the  court,  it  seems  that  the  rule  may 
not  be  made  and  an  attachment  may  issue  at  once.^'^  The 
best  practice  is,  however,  to  allow  the  relator  time  in 
which  to  prepare  his  defense  and  to  secure  counsel  after 
notice.^* 

§  470.  In  the  absence  of  statute,  punishment  at  the 
pleasure  of  the  court.  In  the  absence  of  a  statute,  pro- 
viding otherwise,  the  punishment  to  be  inflicted  by  the 
court  is  entirely  at  its  discretion.  But  usually  it  is  by 
fine  and  imprisonment,  but  it  appears  that  at  common 
law  in  extreme  cases  the  punishment  sometimes  was  of 
a  more  infamous  nature.^^ 

In  many  of  the  jurisdictions  the  statutes  specifically 
designate  the  instances,  and  under  what  circumstances 
contempts  maj^  be  committed,  but  the  discretion  of  the 

35— In  re  Acock,  23  Pac.   (Colo.)  38— In    re    Clark,    208    Mo.    121, 

1024;  Davis  v.  Davis,  20  N.  C.  170;  106   S.   W.   990,    15   L.   E.   A.   389; 

Ex  parte  Sterns,   77   Cal.   156;    Ex  Ex  parte  Mylius,  6  S.  Va.  406,  56 

parte    Ah    Men,    77    Cal.    198;    Ex  S.   E.   602,   11   Ann.   Cas.   812. 
parte  Fan  Gen  You,  19  Pae.  (Cal.)  39—4  Black.  287;  People  v.  Tool, 

500.  35   Colo.   225,  86  Pac.   224,  117  A. 

36— State    v.    Hutchings    (Han),  S.  E.,  108,  6  L.  E.  A.  (N.  S.)  822; 

26  Pae.   937;    State  v.  Vincent,   26  State  v.  Woodfin,  5  Ired.    (N.  C), 

Pac.  (Kans.)  939;  Ludden  v.  State  42  Am.  Dec.  161;   People  v.  Mode, 

(Neb.),  48  N.  W.  61.  92  N.  Y.  415;   Givson  v.  Hutchin- 

37— Straight  v.  Williams,  18  Nev.  don,   148  La.   139,   126  N.  W.   790, 

43;    In  re  Judson,  3   Black.   C.   C.  Ann.   Cas.   1912  B,   1007;   Ex  parte 

148;     Bullock     v,     McDoughno,     2  Looper,   61   Tex.    App.   129,  134   S. 

Pearson    (Pac.)    195.-  W.  345,  Ann.  Cas.   1913  B,  32. 


4:14:  Criminal  Law 

court  to  judge  of  the  circumstances  which  constitute  the 
contempt  is  not  usually  restricted.  As  we  have  seen  in 
another  page,  if  the  court  has  jurisdiction,  the  judgment 
is  conclusive,  and  the  judge's  discretion  is  not  review- 
aljle  in  another  tribunal." 

§  471.  Contempts  are  crime  against  the  general  laws. 
Many  acts  which  are  contempts  of  court  are  also  of- 
fenses against  the  criminal  laws.  AVhen  such  proves 
to  be  the  case,  an  indictment  will  also  lie,  for  the  offense, 
and  may  be  punished  in  the  court  having  jurisdiction  of 
the  same,  notwithstanding  the  same  act  has  been  pun- 
ished as  a  contempt.  Thus  under  many  statutes  certain 
acts  and  the  use  of  certain  language  are  the  violation  of 
the  general  laws  and  when  directed  to  and  concerning 
the  courts,  are  contempts  and  may  be  punished  by  both 
and  the  infliction  of  punishment  of  either  is  no  bar  to  the 
conviction  of  the  other.*^ 

§  472.  As  to  constitutional  court,  etc.  The  general 
rule  is  believed  to  be  that,  in  the  matter  of  contempts 
of  court,  that  all  constitutional  courts  are  empowered 
and  inherently  authorized  to  punish  all  such  acts  and 
conduct  in  the  administration  of  the  business  of  the  court, 
as  it  may  deem  to  be  for  the  best  conduct  of  its  business. 
It  appears  that  the  legislature  might  provide  the  man- 
ner, and  the  extent  of  the  punishment,  and  the  court 
would  be  bound  by  the  provision,  in  the  absence  of  the 
constitutional  power.  Yet,  however,  the  court  may  be 
controlled  by  the  legislative  act,  if  the  court  itself  is  not  a 
constitutional  one.     As  we  have  said  in  another  place 

40 — State  v.  Mathews,  37  N.  II.  commits  a  pnrty  for  contempt,  its 
400;  Ex  parte  Robertson,  19  Wall.  adjudication  is  a  conviction  and  its 
505;  Jordan  v.  State,  14  Tex.  43G;  commitniont  in  consequence  is  ex- 
Hunter    V.    State,    6    Ind.    423;    Ex  ocutivo. " 

parte     Kearney,    7    Wh.    38.      The  41— State  v.  Woodfin,  42  Am.  Doc. 

court    wivh:     "That    when    :\    court  101. 


Contempts  of  Court 


415 


the  authorities  were  greatly  divided,  as  to  the  power 
of  the  legislature  to  interfere  in  abridging  the  court's 
power  in  this  respect,  yet  the  rule  appears  to  be  well  set- 
tled that  if  the  constitution  has  not  conferred  the  right, 
the  legislature  may  not  interfere,  and  the  reason  advanced 
for  this  is  that  the  court  itself  being  a  constitutional 
creature,  adopted  with  all  its  common  law  powers, 
nothing  but  a  constitutional  power  can  take  from  it 
these  powers.*^ 


42 — See  the  following:  In  the 
case  of  Bradley  v.  State,  78  Am. 
states  report  page  163,  say:  "So 
while  in  this  state  courts  created  by 
the  legislature  are  bound  by  sec- 
tion 4046  of  the  Civil  Code,  our 
superior  courts  being  created  by  the 
constitution  having  the  inherent 
powers  to  decide  what  are  con- 
tempts and  to  punish  for  contempts, 
ciuinot  be  controlled  in  this  respect 
l>y   the   legislature. 

' '  The  constitutional  provision 
giving  the  legislature  the  power  to 
limit  the  power  to  punish  for  con- 
tempts does  not  authorize  it  to  de- 
fine or  classify  contempts,  but  only 


the  maximum  amount  of  punish- 
ment to  be  imposed  after  the  con- 
tempt has  been  adjudicated?" 
State  V.  Morrill,  16  Ark.  384; 
Carter  v.  Com.,  96  Va.  791;  Ex 
parte  Eobinson,  19  Wall.  505 ;  Hale 
V.  State,  55  Ohio  St.  210,  45  N.  E. 
199,  60  A.  S.  E.  691,  36  L.  E.  A. 
254;  Atwell  v.  United  States,  162 
Fed.  97,  89  C.  C.  A.  97,  15  Ann. 
Cas.  253,  17  L.  E.  A.  1049;  Ma- 
honey  V.  State,  33  Ind.  App.  655, 
72  N.  E.  151,  104  A.  S.  E.  276; 
Burdett  v.  Com.,  103  Va.  838,  48 
S.  E.  878,  106  A.  S.  E.  916,  68  L. 
E.  A.  251 ;  Smith  v.  Speed,  11  Okla. 
95,  60  Pac.  511,  55  L.  R.  A.  462. 


CHAPTER  XXVI 

EXTORTION 

§  473.  Definition.  §  476.  As   to   usurpers. 

§  474.  Officers  of  the  government.  §  477.  Of  the  intent. 

§  475.  Extortion  by  de  facto  officer. 

§  473.  Definition.  An  officer  is  one  who  represents  the 
eommnnity;  in  fact,  he  is  an  employee  of  the  public,  and 
his  compensation  and  duties  are  prescribed  by  law.  He 
is  by  reason  of  his  position  possessed  of  a  great  influ- 
ence, and  when  inclined  to  abuse  the  confidence  placed 
in  him,  can  do  a  great  amount  of  evil,  by  reason  of  that 
influence.  In  order  that  a  check  may  be  placed  upon  the 
evil,  which  appears  to  have  been  extensively  practiced, 
in  early  times,  the  common  law  punished  him  who  so 
transgressed.  The  most  common  dereliction  of  which 
the  common  law  noticed,  was  an  offense  known  in  the 
books  as  extortion,  which  consisted  in  the  corrupt  accept- 
ing or  demanding  by  an  officer  greater  fees  than  was 
allowed  by  law,  or  the  accepting  or  demanding  fees  before 
they  were  due,  by  color  of  his  office.^ 

1 — "Extortion  signifies,  in  nn  oi)])ressivo  exaction.  If  an  officer 
enlarged  scn.se,  any  oppression  of  the  law  has  a  prisoner  in  his 
under  color  of  right.  In  a  stricter  custody  ami  l>y  jjioinises  or  throats 
Honso,  it  signifies  the  taking  of  induces  him  to  make  a  confession 
money  l)y  an  officer  l>y  color  of  his  to  a  crime,  such  confession  is  re- 
office,  either  where  none  is  due,  or  garded  extorted  or  forced,  and  it 
so  much  due,  or  when  it  is  not  is  not  admissil)le  against  the  pris- 
due. "  People  v.  Whaley,  6  Cow.  oner.  If  such  confession  is  made 
(N.  Y.)  661  ;  Eng.  &  Am.  Ecly.  to  a  person  not  in  authority  and 
."38.5.  ill    110   way   directly   connected   with 

"The    ordinary    meaning    of    tlio  tlic    jirosecution,    the    Htrictness    of 

word  extortion  is  the  taking  or  ob-  the  rule  is  somewhat  iiiodified.     The 

taining    of    anything    from    another  word    extort    has    acquired    a    tcch- 

hy   menns   of   illegal    compulsion    or  nical   meaning   in   the   common   law, 

410 


Extortion  417 

§  474.  Officers  of  the  g-ovemment.  Officer  signifies  an 
officer  of  the  law,  as  contradistinguished  from  an  offi- 
cer of  a  corporation  or  company.  The  term  includes  in 
its  meaning  all  persons  who  either  by  election  or  appoint- 
ment hold  an  office,  and  all  persons  who  assume  to  act  as 
officers  and  perform  the  duties  thereof.  This  includes 
all  officers  of  the  Federal  and  State  goverimients  as 
sheriffs,  marshals,  officers  of  municipalities,  mayors,  jus- 
tices of  the  peace,  all  county  and  state  officers.^ 

§475.  Extortion  by  de  facto  officer.  Officer  de  facto 
may  commit  this  crime.  One  who  assumes  to  perform  the 
duties  of  an  office  is  not  permitted  to  deny  the  authority 
for  his  act,  and  is  as  responsible  as  if  he  had  in  fact 
been  a  legal  officer.  If,  therefore,  he  by  color  of  his 
office  accept  unlawfully  and  corruptly,  money  or  other 
thing  of  value  not  due  him,  or  not  yet  due,  or  more  than 
is  due,  he  is  guilty  of  extortion.  A  person  who  under- 
takes an  office,  although  he  might  not  have  been  elected 
or  duly  appointed,  and  thereby  have  a  defeasible  title 
only,  or  he  having  not  been  compelled  to  serve  therein,  is 
yet,  from  the  authority  which  he  has  assumed,  bound 
to  perform  all  the  duties,  both  commission  and  omission, 
in  the  same  manner,  and  with  the  same  fidelity  he  would 

aud  designates  a  crime  committed  ing,  by  color  of  his  office,  from  any 
by  an  officer  of  the  law,  who,  under  man,  any  money,  or  thing  of  value 
color  of  his  office,  unlawfully  and  that  is  not  due  him,  or  more  than 
corruptly  takes  any  money  or  other  is  due,  or  before  it  is  due,  the  pun- 
thing  of  value,  that  is  not  due  to  ishment  of  which  is  fine  and  im- 
him,  or  more  than  is  due,  or  be-  prisomnent,  and  sometimes  a  for- 
fore  it  is  due.  The  officer  must  un-  feiture  of  office.  Com.  v.  Michell, 
lawfully  and  corruptly  receive  such  3  Bush.  (Ky.)  25,  96  Am.  Dec. 
money  or  article  of  value,   for  his  192. 

own  benefit  or  advantage."    U.   S.  2 — Com.  v.  Bagley,  7  Pick.  279; 

V.  Deavers,  14  Fed.  Eep.  595.  State  v.  Merritt,  5  Sneed  67;  Wil- 

"  Extortion    which    is    an    offense  cox   v.   Bowers,   36    Mo.    App.    327; 

at  common  law,  is  defined  to  be  the  Com.    v.    Rhodes,    6    B.    Mon.    171 ; 

abuse  of  public  justice,  which  con-  Com.  v.  Hogan,  9  Phila.  574;  State 

sists  in  any  officer  unlawfully  tak-  v.  Morris,  33  N.  J.  L.  142. 
C.  L.— 27 


418  Criminal  Law 

have  perf  onned  in  case  his  right  to  the  office  was  legal  and 
unquestioned.^ 

§  476.  As  to  usurper.  One  who  claims  an  office  not  in 
existence,  or  one  not  created  by  law,  or  authorized  by- 
law, does  not  come  within  the  meaning  of  a  de  facto 
officer,  for  a  de  facto  officer  is  one  who  claims  the  right 
to  the  office  under  a  color  of  right,  either  by  election, 
appointment,  or  under  some  other  state  of  circumstances, 
authorized  and  created  by  law.  So,  if  the  constitution  of 
the  state  ''^'  ""^--^  legislature,  has  not  created  the  office,  one 
who  assumes  to  be  an  officer  can  be  nothing  more  than 
an  usurper,  and  his  acts  in  reference  thereto  cannot  be 
said  to  be  by  color  of  the  office,  for  if  there  is  no  such 
office,  he  acts  without  color  of  authority.*  An  officer  can- 
not be  convicted  for  accepting  and  collecting  fees,  by 
color  of  his  office,  which  were  unauthorized  by  the  law. 
The  court  said:  "The  amount  being  fixed  by  law  for 
specific  services  higher  fee  cannot  be  demanded,  without 
the  party  demanding  the  same  being  guilty  of  an  of- 
fense such  as  should  be  denounced  and  punished  by  our 
law.  But  on  the  other  hand  it  frequently  occurs  that 
officers  have  reasonable  grounds  for  believing  and  do 
believe  that  they  are  entitled  to  fees,  when  in  fact  the>- 
are  not.  Hence  our  code  denounces  the  officer  who  de- 
mands or  receives  higher  fees  than  are  allowed  by  law.* 

§477.  Of  intent.  \n  a  criminal  case  of  the  grade  of 
felony,  or  a  niisdenicanor  mala  in  se,  intent  must  exist  be- 

3— Sellers    v.    State,    7   Rich.    (S.  318,  29  S.  E.  931,  68  A.  S.  R.  95; 

C.)   L.  368;    State   v.   McEntyrc,   3  State    v.    Celeman,    99    Minn.    487, 

Ired.     (N.    C.)     171;     Hcrryton    v.  110    N.    W.    5,    116    A.    S.    R.    441, 

State,   103    Ga.   318,   29   S.   E.   931,  note;     Conn    v.    Michell,    3    Biusii. 

68   A.  S.  R.  95;   State  v.  Calcman,  (Ky.)    25,  96  Anier.  Dec.   191,  and 

99  Minn.  487,  110  N.  W.  5,  116  A.  note;    Kirhy   v.   State,  57   N.  J.   L. 

8.    R.   441,   note;    Com.    v.   Micliell,  320. 

3    nu.sh.    (Ky.)    25,   96    Amor.    Dec.  5— Sinitli   v.   State,   10   Tex.   App. 

101,   and    note.  413. 

4— Ilerryton     v.     State,     10.3     Gn. 


Extortion  419 

fore  criminal  liability.  But  in  this  crime  it  appears, 
it  is  not  necessary  there  should  be  a  specific  intent. 
It  appears  that  where  the  crime  is  small,  or  a  misde- 
meanor, no  intent  is  necessary.  The  doing  of  the  act 
is  sufficient.  Thus:  That  a  justice  of  the  peace  believed 
he  had  a  legal  right  to  charge  the  fees  he  did,  and  in 
good  faith,  in  taxing  and  collecting  the  fees,  constitute 
no  defense;  the  ignorance  of  the  law  is  no  excuse.  If 
so,  the  denser  the  ignorance,  the  greater  would  be  the 
exemption  from  liability.  This  rule  might,  under  some 
circumstances,  be  relaxed.  But,  as  a  general  proposi- 
tion, an  officer  who  by  color  of  his  office,  demands  and 
exacts  greater  fees  than  pennitted  under  the  law,  is 
guilty  when  it  is  shown  that  he  has  done  so.  Where 
one  pays  to  an  officer  greater  fees  than  are  permitted 
under  the  law,  he  may  recover  the  same  from  him  by 
suit.^ 

6— Cobbey     v.     Burks,     38     Am.  Mont.    205,    50    Am.    St.    Eep.    498; 

Kep.   364.      See   note   to   Extortion,  Gardner  v.   People,   62  N.  Y.   299; 

vol.   19   Cly.   Law   and   Psoc,   page  People   v.   O 'Brian,   96    Cal.    171. 
38;      Laggett      v.      Prideaux,      16 


CHAPTER  XXVn 


EMBEZZLEMENT 


§  478.  Definition. 

§  479.  At  common  law,  was  not  a 
crime. 

§  480.  Distinctly  a  statutory  of- 
fense. 

§  481.  Rule  as  to  clerks,  servants 
and  the  like. 

§  482.  Of  the  kind  of  property. 

§  483.  Property  illegally  acquired 
by  principal,  agent  may 
embezzle. 

§  484.  Relation  of  trust,  explana- 
tion. 

§  485.  Further    considered. 

§  486.  As   to   the    class    of   persons. 

§  487.  Explanation  of  the  terms  of 
statutes. 


§  488.  The  relation  of  trust  is  not 
dependent  upon  compensa- 
tion. 

§  489.  Part  owner  not  subject  to 
for  joint  property. 

§  489a.  To  borrow  money  for  spe- 
cific purpose,  failure  to  ap- 
ply- 

§  490.  Emplojanent  when  of  special 
nature. 

§  491.  The  intent  must  exist  at  the 
time  of  taking  the  prop- 
erty. 

§  492.  Offering  to  restore  may  be 
shown  in  mitigation. 


§  478.  Definition.  By  laws  of  England  the  crime  of 
embezzlement  was  defined  to  be  the  unlawful  and 
fraudulent  appropriation,  to  his  own  use,  by  a  servant 
or  clerk  of  money  or  chattels,  received  by  him  for  and  on 
account  of  his  master  or  employer.  A  general  American 
definition  is:  the  unlawful  and  fraudulent  appropriation 
of  personal  property  to  whom  it  has  been  entrusted.^ 
Under  our  statutes,  every  person  to  whom,  has  been  en- 
trusted the  care,  custody,  or  control  of  the  personal 
property  of  another,  who  fraudulently  appropriates  the 
same  to  his  own  benefit,  is  guilty  of  embezzlement. 

Embezzlement  differs  from  larceny  in  this,  that  in  the 
former,  the  possession  is  acquired  by  legal  means  and  with 
legal  consent  of  the  owner,  while  in  the  latter  the  pos- 


1_4  Bin.  Com.  230,  232. 


420 


Embezzlement  421 

session  is  acquired  unlawfully  and  fraudulently,  and  with- 
out the  consent  of  the  owner.  Legal  possession  is  the 
controlling  element  of  the  crime,  for  embezzlement  cannot 
be  committed,  except  where  the  possession  of  the  prop- 
erty has  come  legally  into  the  hands  of  the  accused 
through  and  by  reason  of  the  terms  of  a  trust.  If  the  pos- 
session is  acquired  unlawfully,  it  is  larceny,  false  pre- 
tenses or  simple  trespass,  according  to  the  circumstances. 

§  479.  At  common  law  was  not  a  crime.  At  the  com- 
mon law,  there  were  no  means  whereby  a  person  sustain- 
ing a  fiduciary  relation  to  another,  could  be  punished  for 
converting  to  his  own  use  and  benefit,  goods  and  chattels 
which  had  been  entrusted  to  his  care,  custody  and  con- 
trol. Where  a  clerk  or  servant  came  into  the  possession 
of  goods  of  the  master  or  employer,  and  converted  the 
same,  before  the  master  or  employer  secured  the  pos- 
session, this  conversion  amounted  only  to  a  breach  of 
trust,  and  could  not  be  punished  under  the  principles  of 
law  applicable  to  larceny.^  In  consequence  of  the  failure 
of  the  law  to  reach  this  class  of  offenders,  the  39  George 
III,  c.  85,  was  passed,  and  was  entitled,  ' '  An  act  to  pro- 
tect masters  against  embezzlements  by  their  clerks  and 
servants. ' '  Two  classes  of  offenders  were  intended  to  be 
reached  by  this  enactment:  (1)  At  the  common  law  it 
was  necessary  that  the  property  be  in  the  possession  of 
the  owner  or  his  bailee,  and  theft  could  only  be  commit- 
ted by  another  person  taking  it  from  that  possession,  and 
since  the  possession  of  the  clerk  and  the  servant  was  that 
of  the  owner,  the  conversion  of  the  goods  coming  to  his 
possession  for  the  master,  before  the  master  had  gotten 
it  actually  into  his  hands,  was  a  breach  of  trust  only.  (2) 
The  goods  of  the  owner  being  in  the  possessioa  of  th« 
bailee  by  his  consent,  the  subsequent  conversion  of  the 
goods  was  only  a  civil  trespass,  or  breach  of  trust,  and 

2—1    East    P.    C.    570. 


422  Criminal  Law 

not  theft,  and  hence,  as  against  these  two  classes  of  of- 
fenders, the  master  had  no  remedy,  except  a  right  of 
action  for  the  conversion.*  This  statute  was  simply  in- 
tended to  supply  this  defect  in  the  common  law  of  larceny. 
It  appears  that  in  construing  these  statutes,  an  act  that 
amounted  to  larceny  must  be  prosecuted  as  larceny  and 
not  as  embezzlement;  in  other  words,  an  embezzlement 
statute  could  not  overlap  and  take  jurisdiction  of  acts 
which  amounted  to  common  law  larceny.  Thus,  under  a 
statute:  ''If  any  carrier  or  other  bailee  shall  embezzle, 
or  convert  to  his  own  use,  any  money,  goods,  rights  in 
action,  property,  effects  or  valuable  security,  \vhich  shall 
have  come  into  his  possession,  or  have  been  delivered  to 
him,  or  placed  under  his  care  or  custody,  such  bailee,  al- 
though he  shall  not  break  any  trunk,  package,  box,  or 
other  thing  in  which  he  received  them,  shall  be  deemed 
guilty  of  larceny,  and  on  conviction,  shall  be  punished 
as  in  cases  of  larceny, ' '  the  accused  was  indicted  for  the 
crime  of  larceny,  and  the  court  held  that  the  two  offenses 
are  so  far  distinct  in  their  character,  that  under  an  in- 
dictment charging  merely  a  larceny,  evidence  of  embez- 
zlement is  not  sufficient  to  authorize  a  conviction,  and 
that  the  indictment  for  the  embezzlement  must  set  out 
the  acts  of  embezzlement,  notwithstanding  that  the  statute 
provides  that  he  shall  be  punished  as  in  the  case  of  lar- 
ceny.* 

If  the  master  oi-  employer  secured  the  actual  or  con- 
stiiictive  possession  of  llie  goods,  before  the  servant  or 
clerk,  tliat  possession  amounted  to  the  master's  or  em- 
ployer's possession,  and  if  the  servant  or  clerk  after- 
wards came  into  the  actual  possession  of  the  goods,  .•nul 
converted  it,  this  was  larceny  by  the  clerk.^ 

Thus  to  illustrate:  B,  clerking  for  C,  receives  money 
for  an  article  sold,  puts  the  money  in  his  pocket,  before 

3—2    Ea«t    V.    C.    non.  State  v.  Singo,  HI)    Ind.   12G4 ;   Leon- 

4— Fulton    V.    Htato,    13    Ark.    168.        iird    v.  Stale,  7   MVx.   App.   418. 
5_Kcrr  v.   People,   110   111.   630; 


Embezzlement  423 

the  master  secures  the  possession,  this  at  common  law  is 
nothing  more  than  a  breach  of  trust.  But  if  the  money 
for  which  the  article  sold  is  placed  in  the  till,  and  he 
afterwards  takes  it  and  places  it  in  his  pocket  with  the 
intent  to  appropriate  it,  it  is  larceny,  for,  the  act  of 
placing  it  in  the  till  transferred  the  possession  to  the 
master,  and  took  it  from  the  clerk.  So,  again  B,  a  servant, 
secures  the  possession  of  goods  consigned  to  C,  before 
it  has  finally  reached  the  destination,  or  before  C  secures 
the  possession  either  actually  or  constructively,  and  con- 
verts the  same  to  his  use;  this  is  a  breach  of  trust  only, 
for  this  is  a  possession  for  the  owner;  but  if  B  deliver 
the  goods  to  C,  and  afterwards  converts  them,  it  is  lar- 
ceny, for  the  reason  that  the  possession  is  in  him  for 
a  particular  purpose  for  the  master,  and  by  a  fiction  of 
the  law  his  possession  is  that  of  the  master.^  It  is  there- 
fore for  the  mere  breach  of  trust,  that  the  embezzlement 
statutes  are  created.  Thus,  as  where  goods  are  shipped, 
by  common  carrier,  and  they  have  reached  the  final  des- 
tination, they  are  deemed  to  be  in  the  constructive  pos- 
session of  the  owner  or  consignee,  and  if  the  servant 
gains  the  possession  of  the  goods  by  a  delivery  by  the 
carrier,  and  converts  them,  before  the  consignee  secures 
the  actual  possession,  this  is  by  the  common  law,  larceny, 
and  not  embezzlement.'  So,  also,  goods  delivered  on  be- 
half of  the  master,  by  a  third  person,  to  the  servant  is 
larceny  if  converted  by  the  servant.^ 

§  480.  Distinctly  statutory.  This  offense  is  distinctively 
a  statutoiy  one.    In  the  early  ages  of  the  law,  the  condi- 

G— United     States     v.     Clew,     4  W.   Va.    146,   52   S.   E.   30,   6   Ann. 

Wash.  C.  C.  700;   Johnson  v.  Com.,  Cas.   344;    Conn   v.   Eyan,  155   Wis. 

5  Bush.  431;   Warmoth  v.  Com.,  81  523,   31  A.   S.   R,   560,   15   L.  R.   A. 

Ky.  133.  317,  30   N.   E.  364;    People  v.   Mil- 

7— Moore   v.    United    States,    160  ler,  160  N.  Y.  339,  6  N.  E.  418,  88 

U.     S.     268,     40      (L.     ed.)     422;  A.  S.  R.  546. 

Egleston  v.   State,   129  Ala.   80,   30  8— People   v.   Burr,   41   How.   Pr. 

So.  582.     Note  where  the  matter  is  295;    Com.    v.    Doherty,    127    Mass. 

fully  presented.     State  v.  Moyer,  58  26;    Com.  v.  Berry,   99   Mass.   428. 


424  Criminal  Law 

tions  of  society  were  not  so  complex  as  it  has  since  grown 
to  be.  The  technical  rules  of  the  law  had  become  so 
fixed,  that  the  extensions  of  the  principles  were  found  im- 
possible of  application  and  in  many  instances  grave 
wrongs  were  committed,  and  the  offenders  went  free, 
while  in  fact  guilty  of  fraudulently  converting  to  their 
use  the  goods  of  their  masters.  The  statutes  of  the  sev- 
eral states  are  to  a  great  extent  copied  from  the  English 
statutes,  and  undertake  to  meet  and  punish  every  case, 
where  one  by  reason  of  his  employment,  agency,  or  rela- 
tion of  confidence,  acquires  the  possession  of  the  per- 
sonal property  of  another,  and  fraudulently  converts  the 
same  to  his  use  and  benefit. 

The  statutes  of  the  American  states  are  all  modeled 
after  the  English  statutes,  39  George  III,  C.  85:  "If  any 
servant  or  clerk,  or  any  person  employed  for  the  purpose, 
in  the  capacity  of  a  ser^^ant  or  clerk,  to  any  person  or 
persons  whomsoever,  to  any  coi*porate  or  politic,  shall, 
by  virtue  of  such  employment,  receive  or  take  into  his 
possession,  any  money,  goods,  bonds,  bill,  notes,  banker's 
checks,  or  other  valuable  security  or  effects,  for,  or  in  the 
name,  or  on  account  of  his  master  or  masters,  or  employ- 
ers, and  shall  fraudulently  embezzle,  secrete,  or  make 
away  with  the  same,  or  any  part  thereof;  every  such  of- 
fender shall  be  deemed  to  have  feloniously  stolen  the  same 
from  his  master  or  masters  or  employer  or  employers,  for 
whose  use  or  in  whose  name  or  names,  or  on  whose  ac- 
count, the  same  was  or  were  delivered  to  or  taken  into 
the  possession  of  such  servant,  clerk  or  other  person,  so 
employed;  although  such  money,  or  goods,  bonds,  bill, 
note,  bank  draft,  or  other  valuable  security,  was  or  were 
received  into  the  jiossessioii  of  liis  or  their  servant,  clerk 
or  other  person  so  employed.  And  eveiy  sucli  offender, 
his  adviser,  procurer,  or  aider  or  abettor,  being  tliereof 
hiwf uUy  convicted  or  attainted,  shall  be  liable  to  be  trans- 
jjorted  to  such  parts  beyond  the  seas,  as  liis  majesty,  by 
and  with  the  advice  of  his  privy  council  shall  appoint 


Embezzlement  425 

for  any  term  not  exceeding  fourteen  years. ' '  This  statute 
was  amended  by  7  &  8  George  IV,  c.  29,  sec.  49:  ''That  if 
any  clerk  or  servant  or  any  person  employed  for  the  pur- 
pose or  in  the  capacity  of  clerk  or  servant,  shall  by  virtue 
of  such  employment  receive  or  take  into  his  possession 
any  chattel,  money  or  valuable  security  for,  or  in  the 
name  or  on  the  account  of  his  master,  and  shall  fraudu- 
lently embezzle  the  same,  or  any  part  thereof,  every  such 
offender  shall  be  deemed  to  have  feloniously  stolen  the 
same  from  his  master,  although  such  chattel,  money  or 
security  was  not  received  into  the  possession  of  such 
master  othenvise  than  through  the  actual  possession  of 
his  clerk,  servant  or  other  person  so  employed. ' '  ^ 

Statute  24  and  25  Vict.,  c.  96,  sec.  98:  "Whosoever,  be- 
ing a  clerk  or  sei-vant,  or  being  employed  for  the  pur- 
pose, or  in  the  capacity  of  a  clerk  or  servant,  shall  fraud- 
ulently embezzle  any  chattel,  money,  or  other  valuable 
security,  which  shall  be  delivered  to,  or  received,  or  taken 
into  the  possession  by  him  for  or  in  the  name  or  on  the 
account  of  his  master  or  employer,  or  any  part  thereof, 
shall  be  deemed  to  have  feloniously  stolen  same  from  his 
master,  although  such  chattel,  money  or  other  security, 
was  not  received  into  the  possession  of  such  master  or 
employer  other  than  by  the  actual  possession  of  his 
clerk,  sen^ant  or  other  person  so  employed."  The  stat- 
utes of  George  III  and  IV  both  employed  the  phrase, 
"by  virtue  of  his  employment."  Therefore  in  order  to 
convict  for  the  embezzlement  it  must  be  shown  that  the 
property  embezzled  came  into  the  defendant's  possession, 
"by  virtue  of  his  employment,"  "for  or  in  the  name,  or 
on  account  of  his  master  or  employer."  ^°  Hence  under 
these  statutes  the  persons  named  in  the  statute  receiv- 
ing or  coming  into  possession  of  the  master's  goods  (as 

9— Eex  V.  Thorley,  1  Moody  C.  C.  10— Bex    v.    Beaumont    Dears    C. 

343;  Rex  v.  Armon,  7  Cox  C.  C.  45;  C.  270;  Eex  v.  Harris,  6  Cox  C.  C. 

Eex   V.   Latisberry,    5    Car.    &   Pac.  360. 
156. 


426  Criminal  Law 

set  out  in  the  statute)  could  not  be  held  for  the  embezzle- 
ment, if  they  acquired  the  possession  other  than  ''by 
virtue  of  their  employment."  The  statute  of  Victoria 
no  doubt  was  enacted  for  the  pui-pose  in  part  of  remedy- 
ing this  defect  of  the  former  statutes,  in  order  to  hold  all 
parties  (named  iii  the  statute)  from  converting  property 
which  might  come  into  their  possession  outside  of  their 
employment.  The  careful  reading  of  the  statute,  24  and 
25  Vict,  will  disclose  that  the  phrase,  "by  virtue  of  his 
emplojTiient, "  is  left  out  of  the  enactment.  The  statutes 
of  the  several  states  are  in  many  respects  similar  to  these, 
and  the  construction  placed  upon  them  by  the  English 
courts,  become  quite  important  to  the  investigator,  and 
under  this  later  statute,  a  servant  or  clerk  or  other  person 
under  the  employment  of  another,  who  receives  the  goods 
and  chattels  or  money  of  his  employer,  is  guilty  of  em- 
bezzlement, if  he  fraudulently  convert  the  same  whether 
he  receive  the  same  in  the  regular  line  of  his  employ- 
ment or  duty  or  without  the  scope  of  his  authority.  A 
further  discussion  of  these  statutes  Avill  be  found  as  we 
proceed. 

§  481.  Rule  as  to  clerks,  servants  and  the  like.  Upon 
these  statutes  arose  the  contention,  that  they  were  merely 
created  for  the  purpose  of  making  that  larceny,  which 
was  not  so  at  common  law;  and  again,  that  any  act 
which  was  larceny  at  common  law,  could  not  be  included 
in  an  embezzlement  statute."  Upon  these  points  there 
is  a  great  conflict  in  the  authorities,  but  the  weight  of 
authority,  and  the  trend  of  modern  enactments  is  toward 
relief  in  this  respect.*'' 

11— Ker  V.   People,  110  111.  630;  581;  People  v.  llcnncssy,  15  Wend. 

Burk   V.   People,  91   N.   Y.  5;   Ful-  147;   Calkins  v.  State,  98  Am.  Dec. 

ton    V.    State,    13    Ark.    168;    Leon-  121.     See  Extensive  note.     State  v. 

anl   V.   State,   7   Tex.   App.   418.  liuttlcr,  26  Minn.  90. 

12— People    V.    Dalton,    15   Wend. 


Embezzlement  427 

In  the  absence  of  constitutional  inhibitions,  there  is  no 
sound  lei2:a.l  reason  why  the  legislature  may  not  possess 
authority  to  make  any  act  embezzlement,  which  was  lar- 
ceny at  the  common  law.  But  in  the  application  of  these 
statutes,  have  arisen  many  nice  and  curious  distinctions, 
based  upon  the  niles  of  the  common  law  relating  to 
larceny.  The  contention  being  that  if  the  servant  or  clerk 
or  other  person  mentioned  by  the  statute,  had  the  mere 
custody  or  temporary  charge  of  the  master's  property, 
and  converted  the  property  to  his  use,  he  was  not  guilty 
of  embezzlement,  but  of  common  law  larceny.^^  The  con- 
sequence has  been  that  if  the  pleader  failed  to  properly 
detemiine  the  question  whether  the  servant  or  clerk  held 
the  possession  or  merely  the  custody  of  the  property, 
there  would  be  a  variance  between  the  allegations  of  the 
indictment  and  the  proof,  and  the  defendant  would  go 
free,  although  in  fact  guilty  of  converting  the  goods. 
Thus  to  obviate  that  perversion  of  law,  statute  14  and 
15  Vict.,  c.  100,  sec.  13,  provided  that,  "whoever  on  the 
trial  of  an  indictment  for  embezzlement,  it  should  be 
proved  that  the  taking  amounted  to  larceny,  there  should 
not  be  an  acquittal,  but  a  conviction  may  be  for  the 
larceny. ' '  ^* 

Some  of  the  statutes  of  the  American  states  contain 
similar  provisions,  authorizing  the  conviction  of  one  upon 
the  indictment  for  the  otlier.^^  So,  it  is  generally  con- 
ceded it  is  believed  that,  on  the  account  of  the  general 
similarity  of  the  crime  of  embezzlement  and  larceny,  that 
an  indictment  may  contain  one  count  for  the  embezzle- 
ment and  one  for  the  larceny,  and  thereby  meet  the  exi- 
gencies of  the  case.^^ 

13 — Com.    V.    Simpson,    9    Mete.  15 — State  v.  Polard,  33  La.  Ann. 

138;    Berry   v.    Com.,    96   Am.    Dee.  524;    Whitmore    v.    State,    11    Tex. 

767;   Powel  v.   State,  34  Ark.   693;  App.  414. 

Zysman  v.  State    (Tex.),   60  S.  W.  16— See    Authorities    eoUated    on 

669;  State  v.  Wingo,  89  Ind.  204.  page  160,  98  Am.  Dec.,  note  Caul- 

14 — State  V.  Parmer,  32  La.  Ann.  kins  v.  State. 
565;  Mayo  v.  State,  30  Ala.  32. 


428  Cbiminal  Law 

§  482.  Of  the  kind  of  property.  The  property  subject 
to  be  embezzled  is  controlled  by  the  statute.  Those  whose 
investigation  require  particularity,  the  only  safe  course 
to  pursue  is  to  consult  the  statute  of  the  jurisdiction  and 
the  decisions  of  the  local  courts.  The  statutes  are  not 
uniform,  and  w^hat  in  one  statute  may  be  subject  of  em- 
bezzlement may  not  be  in  another.  The  nature  and  the 
principles  of  the  crime  preclude  other  than  personal 
property.  Eeal  estate  is  not  capable  of  being  embezzled. 
Of  course,  if  real  estate  is  converted  into  money  or  any 
other  character  of  personal  property,  it  may  be  converted 
and  thereby  become  embezzlement.  Where  a  statute 
provides  that  all  such  property  as  is  subject  to  larceny 
may  be  embezzled,  this  would  embrace  both  common  law 
and  statutoiy  larceny.^^  The  term  "Property"  used  in 
an  embezzlement  statute  includes  in  its  meaning,  money, 
as  held  in  Texas  case :  "  "  Money  or  property ' '  includes 
promissory  notes  and  bills  of  exchange.^^  "Money  in- 
cludes gold,  silver,  copper  or  other  coin,  as  well  as  bank 
bills,  government  notes,  and  all  other  circulating  me- 
dium, current  as  money. ' '  ^°  Shares  of  stock  in  a  corpo- 
ration or  company  are  included  in  the  term  proper! y.^^ 

§  483.  Property  illegally  acquired  by  principal,  agent 
may  embezzle.  The  fact  that  an  agent,  servant  or  an 
employee  converts  property,  which  has  come  into  his 
hands  and  which  has  been  acquired  by  the  principal  in 
the  pursuit  of  an  unlawful  calling,  and  are  but  the  fruits 
of  crime,  or  of  some  business  which  the  law  prohibits,  he 
is,  nevertheless,  guilty  of  embezzlement.'^^ 

17— -state  V.  Staler,  36  la.  321.   *  489,  126  Tac.  403,  Ann.  Cas.  1914  B, 

18— Brown  v.  State,  23  Tex.  App.  2ol ;    State    v.    Farley,    71    W.   Va. 

214,  4  S.  W.  588.  100,  76  S.  E.  134,  42  L.  R.  A.   (N. 

19— State  V.  Orwig,  24  la.   102.  S.)   498. 

20— People  v.  Williams,  60  Cal.  1.  22— Com.     v.     Smith,     129     Masa. 

21— Taylor  v.  State,  29  Tex.  124;  Com.  v.  Cooper,  130  Masa.  285. 
App.  466;   State  v.  Sage,  22  Idaho 


Embezzlement  429 

"If  it  were  a  fact  that  the  defendant  received  money 
as  agent  for  his  principal,  acquired  upon  an  illegal  con- 
sideration and  in  the  transaction  of  an  unlawful  busi- 
ness, did  not  constitute  any  valid  or  sufficient  defense, 
against  the  charge  of  embezzlement.^^ 

**If  it  is  urged  on  the  part  of  the  appellant,  that  the 
bank  (a  national  bank)  cannot  under  the  law  own  per- 
sonal property,  or  take  mortgages,  or  other  liens  upon 
such  property,  and  therefore  cannot  hold  the  cotton  in 
question,  as  a  pledge  or  security  for  the  pajTnent  of 
money  advanced  on  the  faith  of  it. "  "  We  are  aware  of 
no  authority  which  goes  to  the  extent  of  permitting 
one  charged  with  embezzlement  of  property  so  situated, 
or  the  theft  of  property,  or  any  kind  of  fraudulent  and 
criminal  appropriation  or  disposition  of  it,  to  raise  the 
question  of  ultra  vires. "^  ''The  examination  of  the 
authorities  that  where  the  money  or  property  was  ac- 
quired by  the  defendants  as  agents  and  converted  by 
them,  grew  out  of  illegal  transactions,  and  shows  that  the 
law,  in  such  cases,  is  that,  if  money  has  actually  been 
paid  to  an  agent  for  the  use  of  his  principal,  the  legality 
of  the  transaction  of  which  it  is  the  fruit  does  not  affect 
the  right  of  the  principal  to  recover  it  out  of  the  agent's 
hands,  nor  divest  him  of  his  right  thereto. ' '  ^^ 

§484.  Of  the  relation  of  trust,  explanations  of.    The 

phrase  by  virtue  of  his  employment  or  some  similar  ex- 
pression appears  in  the  English  statutes,  and  is  used  in 
most  of  our  American  statutes.  It  is  a  condition  prece- 
dent to  a  conviction  for  embezzlement,  that  it  appear 
that  the  property  was  received  and  possession  was  ac- 
quired, during  the  course,  and  by  virtue  of  the  employ- 

23— state    v.    Tumey,    3    Cr.    Lw.  25— State  v.  Williamson,  21  L.  E. 

Mag.   504;    Shad   v.    State,   80   Mo.       A.  827,   118   Mo.   146. 
358. 

24— Leonard     v.     State,     7     Tex. 
App.  418. 


430  Criminal  Law 

ment.^^  If  the  property  came  into  the  possession  of  the 
defendant,  outside  and  independent  of  his  employment  or 
agency,  the  conversion  of  the  goods  would  not  be  embez- 
zlement. This  offense  cannot  be  committed  unless  there 
exists  a  relation  of  confidence  between  the  prosecutor  and 
the  defendant.  If  no  such  relation  exists,  then  the  taking 
and  converting  of  the  property  would  be  larceny,  or  the 
trespass  for  which  a  right  of  action  could  be  main- 
tained, by  the  owner.  So,  it  seems,  that  whether  the  stat- 
ute employs  the  temi  "by  virtue"  of  his  employment,  or 
not,  yet  if  the  relation  exists  as  contemplated  by  the 
statute,  the  crime  would  be  committed.  The  rule  to  de- 
termine the  condition  of  trust  or  agency  depends  largely 
upon  the  construction  placed  upon  the  particular  statute. 
But  stated  generally,  so  long  as  the  acts  are  within  the 
scope  of  his  authority,  the  fiduciary  relation  is  main- 
tained, and  the  conversion  of  the  goods  and  properties 
entrusted  to  the  accused  will  constitute  the  offense. 
Where  possession  is  acquired  by  reason  of  the  relation 
of  master  and  servant,  and  not  in  the  line  of  the  servant 's 
duty,  the  conversion  of  the  goods  under  such  circum- 
stances is  not  embezzlement.  Thus,  where  a  servant 
whose  duty  it  was  to  lead  a  stallion,  and  who  was  charged 
by  the  owner  not  to  let  him  for  more  than  thirty  shillings 
and  for  not  loss  than  twenty,  but  who  in  violation  of  his 
instructions,  let  him  for  six,  and  converted  the  money,  it 
was  held  that  he  could  not  be  convicted  of  embezzlement, 
because  he  did  not  receive  the  money  "by  virtue  of  his 
employment"  in  this,  that  he  was  only  authorized,  as  a 
miiiininm  to  accept  twenty  shillings. 

§485.  Explanations — Continued.    Tlic  doctrine  of  the 
preceding  section  does  not  appear  (o  liave  been  followed 

26— Pullaiii  V.  state,  78  Ala.  31,  nio  7J»;  ifeod  v.  State,  16  Tex.  Apj). 

r>0  Am.  Hep.  21  ;  Com.  v.  0'Ncall.y,  .1!)0 ;  State  v.  Casey,  207  Mo.  1,  105 

••7   Muhh.  584;   I'eoplo  v.  Dalton,   15  S.  W.  645,  l'J!>  A.  S.  R.  :Ui7,  i:?  Aim. 

Wciifl.  581 ;    People  v.  Allen,  5   De-  Cas.  878. 


Embezzlement  431 

by  subsequent  adjudication.  The  rule  is  now  well  settled 
that  the  agent,  clerk,  etc.,  coming  into  the  possession  of 
property  of  his  employer,  by  virtue  of  his  employment, 
but  which  is  not  in  line  of  his  duty,  the  conversion  of  the 
property  thus  acquired,  would  come  within  the  statute. 
An  illustration  is  found  in  the  case  where  a  clerk  was 
authorized  and  whose  duty  it  was  to  accept  and  receipt 
for  moneys  collected  by  others  from  customers,  and  who 
collected  money  from  a  customer  direct,  and  converted 
it  to  his  own  use,  it  was  held  that  he  was  guilty  of  em- 
bezzlement.^''^ It  must,  however,  be  understood  that  in 
order  to  apply  this  nile  the  property  must  have  been 
accepted  as  the  property  of  the  employer,  and  on  his 
accomit.  For  if  it  is  received  by  the  agent  for  the  pur- 
pose of  appropriating  it  to  his  own  use,  at  the  time  of 
the  reception,  it  will  be  larceny.  A  statement  of  a  rule, 
based  upon  adjudications,  which  are  in  turn  founded  upon 
a  particular  statement  of  fact,  is  only  an  evidence  of  w^hat 
the  law  is,  in  similar  cases,  and  could  not  be  invoked  as  a 
rule  in  case  of  dissimilar  facts.  Clearly,  if  one  holds 
himself  out  to  another  as  an  agent- of  a  third  person,  when 
in  fact  he  is  not,  and  thereby  obtains  the  possession  of 
his  jjroperty,  upon  the  strength  of  such  rei3resentations, 
he  would  be  guilty  of  larceny  or  false  pretenses,  and  not 
of  embezzlement.  So,  if  an  agency  or  a  relation  of  con- 
fidence is  once  created  and  the  property  of  the  principal 
is  converted  by  the  defendant,  which  has  come  to  him 
by  reason  of  the  relation,  although  it  came  not  through 
the  line  of  his  ordinary  duties  as  such  agent,  he  is  not 
permitted  to  terminate  the  relation  at  will,  or  caprice.^® 

§  486.  Of  the  persons — Only  such  classes  of  person  as 
clearly  in  the  statute,  subject  to.    This  being  a  penal  stat- 

27 — State    v.    Costin,    89    N.    C.  money   for   them    and   deliver   it   to 

511,  Am.  Cr.  Eep.,  vol.  4,  169.  his  employers.     He  sold  t&em  for  a 

28 — "The    defendant    agreed    to  less   price   than   he   was   authorized 

sell  the  shoes  as  instructed,  get  the  to   do,    received   the   money   for   liis 


432  Criminal  Law 

ute  its  terms  must  be  strictly  construed,  and  no  class  of 
persons  can  be  included  within  its  meaning,  except  those 
that  are  definitely  within  its  pui-\aew.  Many  terms  are 
used  in  these  statutes.  The  most  general  being  "clerk," 
"agent,"  "servant,"  "employee,"  "trustee,"  "bailee," 
"collectors,"  "attorneys"  and  "officers."  It  becomes 
important  to  ascertain  the  meaning  of  these  tenns. 

§  487.  Definition  and  explanation  of  terms  of  statute. 

"Clerk"  is  confined  to  a  specific  kind  of  emplojmient, 
and  ^  has  been  defined  as  a  person  employed  to  keep  ac- 
counts and  to  receive  payment  thereon,^"  and  includes 
within  its  meaning  commercial  travelers,  though  their 
compensation  is  by  commission  on  sales.^^ 

The  term  ' '  agent ' '  includes  all  those  who  are  authorized 
by  another  to  represent  him  in  any  specific  capacity.  It  ^^ 
is  more  comprehensive  than  the  tenn  "clerk"  or  "serv- 
ant," and  grants  full  authority  to  act  for  the  principal — 
as  the  principal  might  act  in  his  own  person.  It  has  been 
held  that  it  will  not  include  a  mere  naked  bailee,  who 
holds  possession  for  the  principal.^'    The  term  * '  servant ' ' 

employers,     and     fraudulently     dis-  924,  123  A.  S.  E.  905,  14  Ann.  Cas. 

posed  of  and  applied  it  to  his  own  722. 

use.    The  money  was  not  his;  he  re-  30 — Com.   v.    King,   9   Cush.   284; 

ceived   it   for  his  employers;    it  be-  State  v.  Koubles,  43   La.   Ann.   200, 

longed  to  them,  at  all  events,  untU  9  So.  435,  20  A.  S.  E.   179. 

they    disowned    the    sale,    and    this  31 — State   v.    Farley,    71    W.   Va. 

they  did  not  do.  100,  7C  S.  E.  134,  42  L.  R.  A.   (N. 

"An  agent,  clerk  or  servant  can-  S.)    498. 
not   thus   throw   oCf   his   relation   to  32 — Brown   v.   State    (Ala.),  3  S. 

his    employer    and    evade    the    stat-  W.   81(3.     In  this  case  it  was  hold 

ute.     It  docs  not   lie   in   the  mouth  that  a   mail   ridor  employed   by  tin- 

of    the    defendant    to    say    that    he  United    States    to    c:irry    the    mail, 

did    not   sell   the   shoes   for  his   cm-  was  not  the  agent  of  the  soiidcr  of 

ploycr,    and    that    the    money    was  a    letter,    wlio    had    deposited    it    in 

not  his."  State  v.  Costin,  4  Am.  the  mail  bags  under  his  control. 
Cr.   Rep.    1G9.  33— Pullam   v.   State,  78   Ala.  31, 

29 — Com.  V.  Libbey,  45  Am.  Dec.  56  Am.  Rep.  21  ;   Ilammel   v.  State, 

n,    Met.    (Mass.)    64;    McCrany  v.  5  Mo.  260. 
State,  51  Tex.  App.  502,  103  8.  W. 


Embezzlement  433 

within  the  meaning  of  an  embezzlement  statute  is  any 
person  who  is  in  the  employ  of  another  and  who  in  the 
discharge  of  his  duties  is  subject  to  the  immediate  con- 
trol and  direction  of  the  employer.^*    But  if  he  is  not 
subject  to  the  immediate  control  and  direction  of  the 
employer,  and  is  invested  with  any  discretion  concern- 
ing the  performance  of  his  duties  he  is  not  a  servant. 
So,  female  servants,  house  servants,  stage  drivers,  day 
laborers,  commercial  travelers  and  collectors  whose  du- 
ties are   specifically  defined   and  limited  are   servants 
within  the  meaning  of  these  statutes.^^    The  term  "em- 
ployee" seems  to  include  any  person  employed  in  any 
capacity,  but  in  common  parlance  applies  to  those  per- 
sons who  receive  compensation  for  labor  or  personal  serv- 
ices rendered  for  another.^^    ''Trustee"  is  one  to  whom 
property  is  intrusted  for  the  benefit  of  another.    The  term 
is  more  comprehensive  than  ''bailee"  and  less  compre- 
hensive than  "agent.""     Under  the  English  statutes 
"trustee"  has  been  held  to  embrace  a  person  who  was 
a  secretary  or  treasurer  of  a  bank,  where  by  the  rules 
of  the  bank  he  was  required  to  hold  over  money  for  the 
trustees  or  directors  of  the  bank.^s     "Bailee"  includes 
those  persons,  who  are  authorized  to  keep,  transfer  and 
deliver  the  property  of  another.^®    "Collectors"  include 
those  persons  who  follow  the  specific  and  independent 
business  of  collecting  debts  for  other  persons.    But  where 
persons  are  employed  in  the  business  of  collecting  for 
others,  subject  to  the  control  and  direction  of  the  em- 
ployer, they  are  agents.***    "Attorneys"  are  the  agents 

34— Gravatt    v.    State,    25    Ohio  39— People    v.    Peterson,    9    Cal. 

St.   162.  313;    Krause    v.    Com.,    93    Pa.    St. 

35— People  v.  Sherman,  10  Wend.  418. 

298,  25  Am,   Dee.   563.  40— Campbell   v.    State,    35    Ohio 

36— See    Webster's    Diet.  St.    70;    Com.    v.    Libbey,    45    Am. 

37— Huchinson    v.    Com.,    82    Pa.  Dec.  185. 
St.   472. 

38 — Com,    V.    Turner,    97    Mass. 
50. 

C.  L.— 28 


434  Criminal  Law 

of  their  clients  and  if  they  collect  the  money  of  such  and 
convert  it  to  their  own  use  and  benefit  it  is  embezzle- 
ment." The  teiin  "office"  is  generally  applicable  to  all 
persons  elected  or  appointed  to  perform  political  or  mu- 
nicipal duties,  and  it  applies  to  the  officers  of  corpora- 
tions, w^hich  are  merely  private  concerns.*'^ 

§  488.  The  relation  of  trust  is  not  dependent  upon  com- 
pensation. AVliere  there  is  a  fiduciary  relation  existing 
between  the  parties  it  is  immaterial  that  the  accused 
should  have  received  a  stipend,  fee,  salaiy,  commissions, 
or  other  compensation  for  his  services. 

If  one  assumes  to  take  charge  of  the  property  of  an- 
other, where  he  came  lawfully  into  his  possession,  he 
thereby  becomes  the  agent,  bailee,  or  custodian  of  the 
property  and  is  not  peiTQitted  to  hide  behind  the  want 
of  a  compensation  or  a  valid  legal  consideration  as  a  de- 
fense to  the  conversion  of  the  goods."  So,  one  incompe- 
tent to  contract  may  become  the  bailee  of  another.** 

§  489.  Part  owners  not  subject  to  embezzlement  of  joint 
property.  Part  owners  cannot  be  guilty  of  embezzling 
property  jointly  owned  for  the  possession  of  one  co-own- 
er is  that  of  all.  Where  one  receives  money,  a  portion 
of  which  belongs  to  himself  as  a  commission  on  the  whole 
amount,  he  is  not  guilty  of  embezzlement,  though  he  con- 
vert the  whole.  This  rule  is  based  upon  the  condition 
tliat  the  money  becomes  liis  when  he  collects  it,  and  mere 
ly  creates  a  right  against  the  pi-iiicii)al  for  a  j)Mynieiit  of 
his  connnission.*^   In  oIIrt  words,  if  the  whole  niiiouiit  col- 

41— People  V.   Trcadwcll,  C9  Cal.  «t.  70;  State  v.  Fraley,  71  W.  Va. 

226;   State  v.  Beldcn,  35  La.  Ann.  100,  76  S.  E.  134,  42  L.  R.  A.   (N. 

823.  S.)    498. 

42 — People      v.      McKinney,      10  44— Kcgina    v.    Seetclift,    4    Me 

Mich.   54;    State   v.   Brandt,   41    la.  Cord  387. 

5I»:j;    Com.   v.   MarreH.sy,   86  Pa.   St.  45— Stone   v.   Com.    (Ky.),   46   S. 

416.  W.   221,   104    Ky.   220,   84   A.   S.   R. 

43— Com.  V.  Smith,  129  Maas.  -iri^,  6  Am.  &  Kiif,'.  Eely.  Law  475. 
104;    (Campbell    v.    State,    35    Ohio 


Embezzlement  435 

lected  belongs  to  the  principal,  and  the  commission  is  to 
be  collected  from  the  principal  as  an  independent  action 
or  transaction,  the  conversion  would  be  embezzlement.'*'^ 
So,  upon  this  theory,  seems  to  be  based  the  proposition 
that  if  a  collector,  engaged  in  the  business  of  collecting, 
his  commissions  become  a  part  of  the  money  collected, 
he  a  co-owner  with  the  principal,  and  hence  a  conversion 
of  the  whole  is  not  embezzlement.*' 

§  489a.  To  borrow  money  for  specific  purposes,  failure 
to  do  so  not  embezzlement.  One  who  borrows  money  for 
a  specific  purpose  and  agrees  to  apply  it  in  payment 
of  a  particular  debt,  is  not  guilty  of  embezzlement  in 
applying  the  money  to  other  purposes,  and  in  failing  to 
return  it,  where,  the  transaction  is  a  loan  for  exchange. 
The  loan  of  money  for  exchange  that  is,  to  be  used,  the 
title  to  it  is  transferred  to  the  boiTower.*^  The  borrower, 
in  this  case,  does  not  become  a  bailee.  Where  property  is 
placed  in  the  custody  of  a  bailee,  he  has  a  right  equivalent 
to  that  of  the  owner,  as  against  third  parties,  and  for  this 
purpose,  his  title  is  complete,  but  as  against  the  owner, 
the  title  is  in  the  owner,  and  the  conversion  of  the  prop- 
erty by  the  bailee  would  be  embezzlement ;  but  in  a  loan 
for  exchange,  the  title  to  the  thing  lent  is  transferred  to 
the  borrower,  and  ho  must  bear  all  expenses,  and  is  en- 
titled to  all  of  its  increase,  and  by  reason  of  said  trans- 
action, he  does  not  thereby  occupy  a  position  of  trust  and 
confidence  with  relation  to  the  thing  borrowed,  but  mere- 
ly the  obligation  to  repay  the  lender  in  kind,  at  a  fixed 

4G— stone   v.   Com.,   supra.  46  S.  W.  721,  84  A.  S.  R.  452;  State 

47— Clark  v.   Com.    (Ky.),   29   S.  v.  Moyer,  58  W.  Va.  146,  52  S.  E. 

W.   973;    Com.   v.   Libbey,    45    Am.  30,  6   Ann.  Cas.   344. 
Dec.     185,     11     Met.     (Mass.)     64;  48— Calwell    v.     Hall,     60     Miss. 

McEIroy  v.  People,  202  111.  473,  66  330;    Pugh  v.   Paine,   62   Ala.   340, 

N.    E.    1058;    Wallis    v.    State,    54  34   Amer.   Rep.   24;    State   of   Mon- 

Ark.  61,  16  S.  W.  822.     See  follow-  tana    v.    Oskar   Karri,    51    Montana 

iuf,'     cases— Question     of     Comniis-  157,  149  Pac.  956,  L.  E.  A.  1916  F, 

sions:    Stone  v.  Com.,  104  Ky.  220,  90. 


436  Criminal  Law 

time.  The  transaction  effecting  chattels  in  general, 
is  what  is  known  in  the  Eoman  law  as  the  mutuum, 
and  is  regarded  in  law  in  the  nature  of  a  sale.  The  law 
is  different,  however,  where  the  borrower  borrows  a 
specific  article  to  be  returned;  in  that  event,  he  be- 
comes a  bailee,  and  his  title  is  in  the  lender,  and  by  the 
transaction  does  not  pass  from  him.  Transactions  often 
occur  where  the  money  turned  into  the  hands  of  the 
holder  does  not  pass  title  to  him,  and  instances  may  be 
found  in  that  of  stake  holders,  or  where  money  is  turned 
for  the  pui^ose  of  making  a  tender.  The  distinction  is 
not  difficult  of  solution,  all  depending  upon  whether  the 
money  is  to  be  used  in  free  exchange,  or  whether  it  is 
to  be  used  for  a  specific  purpose,  and  then  to  be  returned.*® 

§  490.  As  to  emplojrment  when  of  a  special  nature. 
There  is  no  uniformity  in  the  early  cases  construing  these 
statutes,  where  the  employment  is  of  only  a  special  na- 
ture or  limited  to  a  particular  transaction.  One  line  of 
adjudications  maintaining  that  the  relation  of  master 
and  servant  is  not  created,  unless  the  employment  is  of  a 
general  nature.  Thus  if  a  person  is  given  money  to  pay 
to  a  third  person,  this  does  not  make  his  act  in 
undertaking  to  deliver  the  money,  a  servant,  within  the 
contemplation  of  the  statute.^" 

Whether  this  is  a  correct  view  to  take,  depends  largely 
upon  the  statute.  As  where  the  statute  defines  the  per- 
son as  ''any  officer,  agent  or  clerk"  it  was  held  that  a 
person  could  not  be  convicted  of  the  crime  unless  it  ap- 
peared that  he  was  in  the  regular  employment  of  the 
priiicipal.^^    This  is  very  evident  for  the  reason  that  the 

49— Clark  v.  State,  Gl  Tex.  Crim.  r)0— rcopU'    v.   Dalton,    15   Wend. 

Eep.  r..".0,   13")  S.  W.  rjlT);   Welsh  v.  581. 

Pooj.l.',    17    111.  .•'.!»!);   Stall'  V.  I'.rvan,  .'.1  --.lolmsoii    v.    St;ite,    9    Baxter 

ITi    N.    ('.    1(14;    IVoplo    v.    Tlioiiias,  279. 
82  N.  Y.  Supp.  215;  Com.  v.  Stone, 
2?,(\  Pac.  35,  84  Atlantic  0r)9. 


Embezzlement  437 

terms  of  the  statute  designating  the  person,  make  only 
such  a  class  amenable  to  it,  as  in  the  ordinary  and  tech- 
nical meaning  of  the  terms  used,  imports  a  regular  or 
pei-manent  employment.  So,  under  this  statute  it  was 
held  that  a  person  who  was  sent  upon  errands  occa- 
sionally, did  not  come  within  the  terms  of  the  statute. 
No  class  of  persons  engaged  in  the  service  of  another  is 
amenable  to  the  statute  unless  he  come  within  the  mean- 
ing, and  as  we  have  said  in  another  connection,  this 
being  a  penal  statute  it  must  be  construed  strictly.  We 
believe  that  the  rule,  more  in  accordance  with  sound  rea- 
soning is,  that  where  the  relation  of  trust  is  created  by 
the  relation  of  the  parties,  property  entrusted  to  one 
whether  in  the  capacity  of  regular  employment  or  not, 
if  converted  by  him  is  embezzlement.  So,  where  one  was 
employed  to  wait  around  the  store  and  the  business,  and 
the  line  of  his  duty  being  to  sweep  out  the  store  and  do 
such  things  as  he  might  be  called  upon  to  do  in  the 
store  as  a  man  of  all  work;  was  entrusted  with  shoes  to 
sell  at  fifty  cents  per  pair  and  he  sold  them  at  twenty- 
five  cents  and  converted  them,  he  was  held  to  be  guilty 
of  embezzlement — and  so  far  a  servant;  although  his 
defense  in  the  case  was  that  it  was  out  of  his  line  of 
duty  and  hence  not  a  servant.^^ 

§  491.  Of  the  intent.  The  appropriation  of  the  prop- 
erty must  be  made  with  the  fraudulent  or  felonious  intent 
to  deprive  the  owner  of  the  property.^^  It  may  be  stated 
that  this  intent,  as  a  general  rule,  is  to  exist,  at  the  time 

52— state  v.  Costin,  89  N.  C.  511;  Smith  v.  State,  53  Tex.  App.  117,  15 

State    V.    Costin,    4    Am.    Cr.    Eep.  Ann.  Cas.  435,  and  note. 
169;    Com.    v.    Foster,    107    Mass.  53— -Beaty  v.  State,  82  Ind.  228; 

221;    Campbell    v.    State,    35    Ohio  State   v.   Lyon,   45    N.   Y.   L.    272; 

70;  State  v.  Foster,  37  la.  146.     As  Hoyt  v.  State,  50  Ga.  313;  Com.  v. 

a  further  illustration:    Tex.  1,  see:  Wilson,    7    Ky.    R.    666;    Com.    v. 

Eggleston  v.  State,  129  Ala.  80,  30  ,    132    Mass.    246;    Territory 

So.  582,  87  A.  S.  E.  37,  and  note;  v.    Hale,    13    N.    M.    181,    81    Pac. 


438  Criminal  Law 

of  the  conversion  of  the  property.  As  a  general  rule  in 
order  to  constitute  a  crime,  a  criminal  intent,  specifically 
to  commit  that  particular  crime,  is  essential  to  it.  This, 
however,  is  not  always  the  case.  The  exception  is  found 
where  the  statute  has  created  a  crime  out  of  the  doing 
or  not  doing  of  an  act.  If  the  statute  is  violated,  then 
the  fact  that  the  defendant  did  the  prohibited  act, 
makes  him  guilty  without  a  specific  intent.  The  statute 
levels  its  heavy  hand  upon  the  act  and  not  upon  the 
intent  with  which  the  act  was  committed.  This  rule 
though  in  particular  instances  has  exceptions;  as 
where  the  person  doing  the  act  is  a  non  compos 
mentis,  a  lunatic,  or  an  infant,  or  other  incompetent 
person  whose  acts  are  but  the  acts  of  inanimates, 
or  chance  or  fortune.  But  where  a  person  otherwise  com- 
petent to  direct  his  action  and  volition  of  will,  does  the 
act  prohibited,  he  then  is  taken  in  law  to  have  intended 
the  consequences  of  his  acts.  So,  where,  the  tenns  of  the 
statutes  indicate  the  particular  intent  the  government 
to  should  allege  and  establish  this  intent.  Where  there 
is  no  question  as  to  the  meaning  of  the  statute  as  where 
the  tenn  is  such  as,  'Svilfully,"  **  unlawfully, "  the  in 
dictment  will  be  sufficient  if  the  statute  is  followed.  In 
tnitli,  the  better  rule  is  to  follow  the  words  of  the  stat- 
ute. But  where  the  statute  is  silent  as  to  the  intent,  tlieii 
it  is  not  iiecessary  to  allege  the  intent  with  which  \hc 
conversion  took  place.  So  where  the  statute  uses  the 
teiTQ  "embezzle"  or  ''fraudulent  misapply,"  an  allega 
tion  in  tlie  words  of  tlie  statute  is  sufficient  allegation  of 
the  intent.  So,  where  one  converts  the  proj^erty  entrusted 
to  him,  whether  he  liavc  tlie  iiitont  to  deprive  the  ownei' 

.583,    13    Ann.    Cas.    551;    State    v.  A.  S.   R.  582;  State  v.  McFetridge, 

Sapp,   22   Idaho  489,   126   Pac.   403,  M   Wis.   473,  54   N.   W.    1,  998,   20 

Ann.    (;as.    1914  B,    251;    RoJ)cnHon  L.    K.    A.   223;   Stale  v.   Beach,   147 

V.  State,  109  Oa.  504,  35  S.  E.  57,  Ind.  7J,  43   N.   K.  9Mt,  3(5  1^.  li.   A. 

77  A.  S.  H.  3!)2;   People  v.  Warroii,  170. 
122    Midi.    5(14,    Ml    N.    W.    3r.O,    HO 


Embezzlement  439 

of  the  property  or  not,  the  fact  that  he  does  use  the  prop- 
erty for  his  benefit,  comes  within  the  prohibitions  of  the 
statute,  and  his  honest  intention  to  repay  the  same  at 
some  future  time  will  not  operate  as  an  acquittal.^*  The 
question,  however,  is  one  for  tlie  jury  to  determine,  from 
the  fact  and  circumstances  of  the  case. 

§  492.  Offering  to  restore  the  property,  may  be  shown 
in  mitigation.  Some  of  the  statutes  contain  a  provision 
that  if  after  the  finding  of  the  indictment  or  information 
an  offer  to  restore,  or  a  restoring  the  property  may  be 
taken  as  a  mitigation  of  the  punishment.  But  the  fact 
that  the  accused  after  the  conversion,  and  before  the 
indictment  offers  to  restore  the  property  will  not  operate 
as  a  defense.  This  for  the  same  reason  that  when  an 
intent  and  the  concurrent  act  have  consummated  a  crime, 
no  subsequent  repentance  will  relieve  it  of  its  culpable 
nature  or  character.  The  fact  though  that  the  property 
has  been  restored  or  an  offer  to  restore,  is  competent  evi- 
dence, upon  the  question  of  the  mitigation  of  the  pen- 
alties of  the  law.  It  has  been  held  under  statutes  of  the 
character  referred  to  that  the  giving  bond  and  security 
to  indemnify  the  principal  from  loss  on  the  account  of 
his  agency,  etc.,  will  not  operate  to  the  advantage  of  the 

54 — State     v.     Trolsoii,    21     Nev.  version.      The   question   is,   does   the 

419,  9   Am.   Cr.  Eep.   243;   State  v.  trustee    exercise    dominion   over   the 

Pratt,  98  Mo.  482;  State  v.  Combs,  property    entrusted    to   him,    to   the 

47  Kans.  136;  Leonard  v.  State,  7  exclusion  or  in  the  defiance  of  the 

Tex.  App.  435;   State  v.   Patterson,  owner's   right.     If   so,  it   would   be 

66    Kans.    447;     Pureell,     29     Tex.  a    conversion    whether    for    his    or 

App.    1,    13    S.    W.    993;    State    v.  another's   use?     The  term  'conver- 

Noland,  19  S.  W.   (Mo.)    715;  Con-  sion,'    seems    to    have    acquired    a 

nor  V.  State   (Tex.),  42   S.  W.  981.  technical   meaning;    that   is   detain- 

"It  is  necessary  that  some  adverse  ing  goods  so  as  to  deprive  the  owner 

use  or  holding,  be  shown,  depriving  of  them — his  dominion  over  them." 
the  owner  of  his  property,  but  there  See    Fitzgerald    v.    State    (N.    J. 

is     no    prescribed     set     of     circum-  L.),   14   Atl.   746;    State   v.   Pierce, 

stances,  which  will  be  necessary  or  42  N.  W.  181,  77  la.  245. 
sufficient  to  show  a  fraudulent  con- 


440  Criminal  Law 

defendant  who  has  appropriated  the  property  to  his  bene- 
fit, and  this,  too,  notwithstanding  the  deficit  is  actually 
paid  under  the  bonds  and  sureties  of  indemnity." 

55— state    v.    Duerksen,    8    Okla.  1025.     Mitigation   by   voluntary  re- 

Cr.  Eep.  601,  129  Pae.   881,  52  L.  turn:  Stepp  v.  State,  31  Tex.  App. 

R.  A.  (N.  S.)  1013,  and  note;  State  349,  20  S.  W.  753.    See  52  L.  E.  A. 

V.  Baxter,  —  Ohio  St.  — ,  104  S.  E.  (N.  S.),  page  1026. 
331,  52  L.  E.  A.   N.  S.   1019,  note 


CHAPTER   XXVIII 


FALSE  PRETENSES 


§  493.  Common    law    cheats. 

§  494.  English   statutes. 

tj  495.  Pretenses  must  relate  to 
some  existing  or  past  fact. 

§  496.  How  strong  shall  the  pre- 
tense be. 

S  497.  How  shall  the  pretense  be 
effected. 

§  498.  As  to  the  promise  and  the 
expression  of  opinion. 

§  499.  Both  sellers  and  purchasers 
may  be  guilty  of. 


§  500.  Difference  between  false  pre- 
tenses and  non  criminal 
lie. 

§  501.  Eepresentation  by  act  and  by 
silence. 

§  502.  Of   what   elements   composed. 

§  503.  The  intent  must  be  to  de- 
fraud. 

§  504.  Defendant  must  have  knowl- 
edge of  the  falsity  of  the 
statement. 


§  493.  Common  law  cheats  and  false  pretenses.  This 
offense  is  purely  statutory,  and  for  this  reason  it  may  be 
profitable  to  the  reader  to  give  a  brief  history  of  its 
creation.  Larceny  at  the  common  law  covered  all  cases 
of  the  appropriation  of  the  property  of  another  coming 
into  the  hands  of  the  taker  without  the  consent  of  the 
owner  or  his  bailee;  or  where  the  owner  parted  with 
temporary  possession  of  his  property  upon  some  false 
pretext  or  representation  the  intent  being  at  the  time 
of  making  the  representations  to  appropriate  it  to  the 
taker's  own  use  and  benefit.^ 

Common  law  cheats  covered  all  that  class  of  cases  of 
false  and  dishonest  dealings  effected  by  false  or  untrue 
tokens  or  symbols,  or  representations,  wherein  the  persons 
generally  might  be  imposed  upon  to  their  pecuniary  dis- 


1— State  V.  Eenick,  33  Ore.  584, 
56  Pac.  275,  72  A.  S.  R.  758,  44  L. 
K.  A.  766;  People  v.  Babcock,  7 
John.  (N.  Y.)  201,  5  Am.  Dee.  26; 
Com.  V.  Ferguson,   135  Ky.  32,  121 

441 


S.  W.  967,  21  Ann.  Cas.  434,  24  L. 
R.  A.  1101,  and  note.  See  chapter 
on  Larceny,  this  work,  3  Greenl. 
160;  Easton  v.  State,  36  Miss.  593; 
Taylor  v.  State,  32  Tex.  App.  110. 


442  Criminal  Law 

advautage,  under  such  circumstances  as  common  pru- 
dence could  not  guard  against.  Common  law  cheats  com- 
prised three  classes  of  offenses:  (1)  Offenses  against  pub- 
lic justice;  such  as  counterfeits  of  writings  and  public 
documents  generally.  (2)  Offenses  against  public  health, 
such  as  selling  tainted  meats  and  unwholesome  provisions 
generally.  (3)  Offenses  against  public  economy,  such  as 
false  weights  and  measures,  holding  them  out  to  the  pub- 
lic as  true.  Thus  the  reader  will  notice  that  the  common 
law  only  reached  under  the  general  title  *  *  Cheats, ' '  such 
cases  of  false  and  fraudulent  practices  as  affected  the 
public  in  its  aggregate  capacity;  that  larceny  reached 
such  false  and  fraudulent  representations  as  induced  an 
individual  to  part  with  the  temporary  possession  of  his 
property :  Hence  there  are  many  cases  of  false  and  fraudu- 
lent representations  which  cannot  be  prosecuted  under 
either  of  the  said  offenses  which  affected  the  rights  of  the 
individual  in  the  security  of  his  property.  This  species  of 
cheats  and  swindling  is  known  under  the  general  name  of 
"False  Pretenses,"  and  is  found  in  those  cases,  where  by 
false  and  fraudulent  representation  of  a  passed  or  exist- 
ing fact,  another  is  induced  to  part  with  the  title  to  his 
personal  property.  The  mere  })arting  with  the  possession 
of  the  property  without  the  intent  to  also  part  with  the 
title  is  not  false  pretenses,  however,  false  and  fraudulent 
the  representations  may  be.'* 

§  494.  English  statutes.  Since  the  statutes  of  the  sev- 
eral Aniericaii  states  are  in  many  respects  modeled  after 
the  English  statutes,  we  deem  it  advantageous  to  the 
reader  to  reproduce  some  of  those  early  statutes  here. 
Statute  33  Hen.  VHI,  ch.  30,  and  Geo.  H,  ch.  24,  are  sub- 
stantially as  follows:  "If  any  person  defrauds  another 
of  any  valuable  chattels  by  color  of  any  false  pretense, 

2 — Com.  V.  Eicliolbfrhcr,  Hit  I'a. 
St,  254;  4  Am.  8t.  Rfi».  01 'J,  13 
Atl.   422. 


False  Peetenses  443 

token  or  counterfeit  letter  of  the  owner,  he  shall  be 
punished,  etc.,"  52  Geo.  Ill,  ch.  64,  extends  the  appli- 
cation to  bonds,  bills  of  exchange,  bank  notes,  securities 
or  orders  for  the  payment  of  moneys  or  the  transfer  of 
goods,  or  any  valuable  thing  whatever.^  Seven  and  8  Geo. 
IV,  ch.  29,  sec.  53:  ''That  a  failure  of  justice  frequently 
arises  from  the  subtle  distinctions  between  larceny  and 
fraud  and  for  remedy  it  is  enacted  that  if  any  person 
shall  by  any  false  pretense  obtain  from  any  other  per- 
son any  chattel  or  other  valuable  security  with  intent 
to  cheat  or  defraud  any  person  of  the  same,  every  such 
offender  shall  be  guilty  of  a  misdemeanor,  etc.— Pro- 
vided, that  if  any  person  indicted  for  such  misdemeanor, 
it  shall  be  proven  that  he  obtained  the  property  in  ques- 
tion in  such  a  manner  as  to  amount  to  larceny,  he  shall 
not  by  reason  thereof,  be  entitled  to  an  acquittal  of  such 
misdemeanor. ' '  ^ 

OF  THE  CHAEACTER  OF  THE  PRETENSE 

§495.  The  pretense  must  relate  to  some  existing  or 
past  fact.^  The  statement  as  to  a  future  event  is  too 
remote — it  is  conjectural  and  it  may  in  the  course  of 
events  become  a  fact  or  form  an  existence  or  it  may  not, 
and  one  who  acts  upon  it  is  fully  aware  of  its  doubtful 
character.  So,  if  a  false  statement  is  made  in  the  form 
of  a  promise  to  do  or  not  to  do  a  certain  thing,  it  is  not 
a  statement  of  a  fact,  but  as  to  a  future  event,  and  is 
not  a  false  pretense  within  the  meaning  of  the  statute. 
Thus  a  promise  to  employ  another  upon  the  strength  of 
which  one  is  induced  to  deposit  his  money  as  security,  is 

3— Wilderson  v.   State    (Ala.),  36  v.   Ferris,    171   Ind.    562,   86   N.   E. 

So.  1004;  State  v.  Briggs,  74  Kans.  993,  4  L.  R.  A.    (N.  S.)    173;   Per- 

377,  86  Pac.  447,  10  Ann.  Gas.  904,  kins  v.   State,  67   Ind.  270,  32   Am. 

7  L.  R.  A.    (N.  S.)  ;   Com,  v.  Fur-  Rep.    89;    People  v.   Eothstein,   180 

guson,  135  Ky.  32,  121  S.  W.  967,  N.   Y.    148,   72   N.   E.    999,    1   Ann. 

21  Ann.  Gas.  434,  24  L.  R.  A.   (N.  Gas.  978;  Harton  v.  State,  85  Ohio 

S.)    1101;   Strong  v.  State,   86  Ind.  State  13,  96  N.  E.   797,   Ann.   Gas. 

'.208;  44  Am.  Rep.  292,  N.  E.;  State  1913  B,   90. 


444  Criminal  Law 

not  a  false  pretense ;  *  nor  in  the  case  one  parts  with  his 
property  upon  the  promise  that  bail  will  be  made  for 
him ;  ^  nor  the  promise  to  pay  for  goods  npon  the  de- 
livery.^ But  as  to  this  latter  there  is  a  conflict  of  au- 
thority. So  where  the  accused  falsely  represented  to  the 
prosecutor  that  his  goods  were  about  to  be  attached,  un- 
less he  placed  them  in  his  hands,  this  was  held  not  to  be  a 
false  pretense.  Thus  therefore  the  authorities  are  uni- 
form in  holding  that  a  mere  promise,  although  at  the 
time  it  is  made,  the  promisor  does  not  intend  to  perform 
it,  does  not  constitute  the  crime.  But  if  the  false  state- 
ment relates  to  a  past  or  existing  fact  and  is  com- 
bined with  a  promise  of  the  perfonnance  of  something 
in  the  future,  this  comes  within  the  meaning  of  the 
statute,  although,  both  the  promise  and  the  statement  of 
the  fact  contributed  to  the  inducement  to  part  with  the 
property.'  So,  in  the  case  of  the  promise  of  marriage, 
although  false,  and  property  is  parted  with  upon  the 
strength  of  it,  yet  it  is  not  a  false  pretense.  But  if  coupled 
with  the  promise,  there  is  a  statement  of  a  past  or  existing 
fact  which  combined  induces  the  parting  with  property, 
it  is  a  false  pretense. 

§  496.  How  strong  shall  the  false  pretense  be?  Some 
observation  may  be  indulged  here  as  to  the  rule  an- 
nounced in  the  preceding  section  concerning  the  effect 
of  the  promise  made  as  an  inducement.  The  false  rep- 
resentings  of  fact  or  facts  past  or  existing  must  be  the 
prime  moving  cause.®  Some  difficulty  may  be  encoun- 
tered in  such  cases  in  determining  the  true  moving  cause. 

4 — liaincy    v.    People,    22    N.    Y.  7 — State   v.    Montgomery,   56    la. 

413;    Cook   v.  State    (Neb.),  98   N.  195,  —  N.  W.    126;    Com.  v.  Wal- 

W.   810.  laco,   114    Pa.   St.   405,   G   All.   68.^); 

5_-Statc    V.    Colley    (La.),   2    So.  Stato  v.  Vorl)ack,  66  Mo.  168;  State 

496;  Stato  v.  IlainoH,  23  S.  C.  1701  ;  v.   Cowdin,   2H   Kans.   229. 

State   V.   WJiitncy,   3   S.   W,   537.  8— People    v.    Ilaynes,    14    Wend. 

6     Allfn    V.   State,    10   Tex.    App.  516,    28    Am,    Dec.    530;    State    v. 

150.  Thatcher,   35   N.   J.   L.   445. 


False  Pretenses  445 

It  appears  that  the  statement  as  to  the  fact  must  be  so 
cogent  that  it  alone  would  be  sufficient  to  induce  the 
action  of  the  prosecutor.  Thus  it  has  been  held  under 
the  laws  of  the  state  of  Kentucky  that  if  one  obtains 
the  delivery  of  goods  to  him  upon  the  promise  to  sell 
them  and  turn  the  proceeds  over  to  the  person  from 
whom  they  were  obtained  will  not  constitute  the  crime 
of  ''False  Pretense."^  How  strong  shall  this  pretense 
be?  By  what  criterion  shall  we  estimate  the  strength 
of  the  false  statement?  It  is  a  fact  known  to  all 
men,  that  all  persons  do  not  possess  the  same  degree 
of  credulity:  That  a  statement  has  probative  force  with 
us  in  proportion  to  the  extent  of  our  observations  and  ex 
periences  in  dealing  with  other  persons,  and  our  opinion 
is  controlled  largely  by  what  we  know  of  the  character 
of  the  particular  person.  The  law  has  not  yet  discovered 
an  arbitrary  rule,  but  the  most  accurate  and  plausible 
one  is  that  the  statements  must  be  of  that  character  which 
a  person  of  ordinary  prudence  and  caution  would  have 
given  heed  to.^°  The  statements  must  as  a  matter  of 
fact,  be  believed  and  acted  upon;  otherwise  the  false 
statement  made  with  the  fraudulent  purpose  of  obtaining 
the  property  of  another  would  be  the  attempted  crime. 
This  rule  though  appeals  to  us  as  being  very  harsh  and 
imposes  upon  persons  of  weak  minds.  There  are  others, 
too,  of  strong  intellectuality  but  of  physical  defects  such 
as  deaf  and  dumb  and  blind  persons,  who  are  easy  marks 
for  crafty  and  designing  persons.  One  court  says : ' '  That 
if  false  pretenses  were  made  with  the  design  of  deceiving 
and  thereby  obtaining  credit  or  property,  and  have  that 
effect,  the  guilty  party  cannot  escape  on  the  ground  of 

9— Goekin  V.  Com.j  3  Mete.  (Ky.)  App.     353;     Walker    v.     State,    68 

233.  Fla.  278,  67  So.  94,  L.  E.  A.  1915  C, 

10— Shaffer  v.  State,  82  Ind.  221;  1161;  State  v.  Keyes,  196  Mo.  136, 

Com.    V.    Grady,    13    Bush.     (Ky.)  93  S.  W.  801,  7  Ann.  Cas.  23,  6  L. 

285;    Buckalow    v.    State,    11    Tex.  E.   A.    (N.   S.)    369. 


446  Criminal  Law 

the  weak  credulity  of  the  victim."  It  appears  also  that 
if  the  statement  is  partly  true  and  partly  false  and  the 
two  conjointly  contribute  to  the  action  of  the  party  to 
whom  they  are  made  for  the  pui-pose  of  deception  and 
to  acquire  his  property,  and  the  same  would  not  have 
been  parted  with  except  for  the  false  statement,  then  it 
would  come  within  the  statute.  The  modern  authorities 
are  to  the  effect  that  the  question  is  one  of  fact  for  the 
jury.^^  Yet  eveiy  verdict  of  a  jury  would  not  be  sustained, 
unless  based  upon  false  statement  which  so  operates  upon 
the  mind  of  the  party  imposed  upon,  as  to  be  within 
itself  a  moving  cause  for  the  action. 

§  497.  How  shall  the  pretense  be  effected?  The  pre- 
tense may  be  either  words,  acts  or  appearances;  in  fact, 
any  means  which  conveys  to  the  party  defrauded  a  cor- 
rect meaning  of  the  accused  is  sufficient.  Thus  as  cited 
in  the  old  books  where  one  representing  himself  as  a 
student  of  the  University  of  Oxford  wearing  the  uniform 
of  that  order  induced  another  to  advance  him  goods,  was 
held  to  be  a  false  pretense.^'  Or  where  one  writes  his 
name  on  the  receipting  part  of  a  money  order,  thereby 
holding  out  to  the  postmaster  that  he  is  the  paj^ee  named 
therein,  although  he  makes  no  statement  to  that  effect, 
the  same  being  an  assumed  name,  was  held  in  an  English 
case  to  be  a  false  i)retense;  first,  for  the  reason  that  the 
signing  his  own  name  was  not  a  forgery;  second,  be 
cause  by  presenting  the  order  and  signing  his  name 
thereto  he  was  holding  out  to  the  officer  that  he  was  the 
])erson  tlierein  named."  So  where  one  makes  out  a  false 
statement  of  services  of  employees  under  his  charge,  lie 

11— Slate    V.    Fooks,    21    N.    W.  311;     Hiukaloo    v.    State,    11    Tex. 

nci,  56   Ta.   196;   Sonahoo   v.   State,  Ai)p.  353. 

27  S.  W.  226;  Woodborry  v.  State,  13— State  v.  (JoIpIo,  60  la.  447,  15 

no    Ala.    242;    Smilli    v.    State,    55  N.   W.   272. 

MiHH.   513.  14— State  v.   Swan,  55  Wash.  07, 

12 — lohiiHon     V.     State,    36     Ark.  10}  Pac  145,  133  A.  S.  R.  1024,  19 

242;    Solli.Tt   V.   State,    1    Tex.    Aj)]).  .\tH.    ('as.    1120,    24    L.    R.    A.    575; 


False  Pretenses  447 

himself  being  an  agent  or  an  officer,  it  being  his  duty  to 
make  report  to  his  principal  or  to  another  officer,  is  guilty 
of  the  crime.^^ 

§  498.  As  to  promises  and  the  mere  expression  of  opin- 
ion. The  mere  expression  of  an  opinion,  or  assertion,  or 
declarations  obviously  false,  or  expressions  of  extrav- 
agance do  not  come  Avithin  the  law.^^  If  the  party  to 
whom  the  statement  is  made  knows  the  same  to  be  false 
he  can  not  be  deceived,  and  if  the  statements  are  made 
under  such  circumstancs  and  under  such  conditions  as 
to  indicate  the  falsity  the  declarant  is  not  bound  by 
them.  Plainer  stated,  it  is  necessary  that  the  party  be 
in  fact  deceived;  and  this  is  not  limited  to  the  falsity 
on  the  part  of  the  declarant  but  must  be  believed  by  the 
party  acting  upon  them.  So  one  who  gives  a  check  upon 
a  bank  holding  out  that  he  has  money  in  the  bank  is  a 
false  pretense.  This  is,  however,  dependent  upon  the 
intention  of  the  party  who  gives  it ;  if  he  had  an  account 
running  and  he  gives  the  check  not  knowing  that  his 
account  has  been  exhausted  he  is  not  guilty,  for  his  in- 
tent was  not  to  defraud.  But  if  he  gives  a  check  upon  a 
bank  upon  which  he  has  no  funds  to  his  knowledge  or 
upon  a  bank  upon  which  he  has  never  had  any  funds  he 
is  guilty  of  the  pretense.^'''  The  false  assumption  of 
power  to  do  something  either  physical,  mental  or  spir- 
itual or  impossible,  has  been  held  in  some  early  Eng- 

Jones   V.   State,   97    Ga.    430,   25    S.  K.    A.    638;    People    v.    McAllister, 

E.  319,  54  A.  S.  R.  383.  49  Mich.  12,  12  N.  E.  891;   Bueka- 

15 — Roberts    v.    People,    9    Colo.  lew  v.   State,   11   Texas  App.   353; 

458,    13    Pac.    630.      See    People    v.  State    v.    Bohle    (Mo.),    81    S.    W. 

Donnalson,    70    Gal.    116,    11    Pac.  179;  Wilkerson  v.  State   (Ala.),  36 

681.  So.   1004,  140  Ala.  155;  McPherson 

16— Woodberry  v.  State,  69  Ala.  v.    State    (Tex.    App.),    79    S.    W. 

242,   44    Am.   Rep.    516;    People   v.  522;  Am.  &  Eng.  Encly.,  vol.  7,  1st 

Jordan,  66  Cal.  10,  40  Pac.  773,  56  ed.,   p.    707. 

Am.  Rep.  73;   Com.  v.  Beckett,   119  17 — People  v.  Donnalson,  70   Cal. 

Ky.  817,  84  S.  W.   758,  27   Ky.   L.  116;  Com.  v.  Drew,  36  Mass.  179. 
Rep.  265,  115  A.  S.  R.  285,  68  L. 


448  Criminal  Law 

lish  cases  to  be  within  the  rule.  As  in  the  case  where 
a  Spiritualistic  Medium  obtains  money  upon  the  assump- 
tion that  he  can  do  certain  things  of  a  supernatural 
character.  So  in  a  Pennsylvania  case  it  was  lield  to  be 
a  false  pretense  for  a  person  to  charge  an  admission 
fee  upon  the  false  representation  that  he  could  call  up 
the  spirits  of  deceased  persons.  This,  however,  does 
not  appear  to  be  in  keeping  with  the  nile.  The  false 
assumption  of  doing  a  thing  Avhich  carries  incredulity 
upon  its  face,  and  obviously  false,  no  one  can  be  ex- 
pected to  believe  it.  The  declarations  of  one  as  to  the 
probable  value  of  a  stock  of  goods,  being  a  mere  ex- 
pression of  an  opinion,  is  not  a  pretense,  for  it  cannot 
be  taken  as  a  statement  of  a  fact.  But  where  one  makes 
a  statement  as  to  his  indebtedness  which  is  false  and 
another  is  misled  by  it,  whereby  he  parts  with  his  prop- 
erty or  extends  a  credit,  this  is  false  pretense.  So,  if 
one  make  a  false  statement  as  to  his  wealth,  his  social 
standing  or  civic  position  whereby  one  is  misled  to  his 
hurt,  this  would  come  within  the  meaning  of  the  law. 
It  is  believed  that  any  false  statement  made  as  to  the 
ownership  of  property  would  be  a  false  pretense,  for 
this  is  a  statement  of  a  fact  upon  which  a  person  deal- 
ing with  the  declarant,  would  have  a  right  to  give  heed, 
but  it  is  gravely  doubted  that  one  would  be  expected  1  > 
rely  upon  another  simply  because  he  occupied  a  high 
social  position,  for  this  is  not  a  statement  equivalent  to 
a  declaration  that  he  had  property,  upon  which  a  credit 
might  be  based.  This,  of  course,  is  dependent  upon  cir- 
cumstances and  accompanying  statements  which  com 
bined,  may  be  equivalent  to  a  statement  of  a  fact.  Thus, 
for  one  to  falsely  state  that  he  is  an  officer,  which  car- 
ries certain  emoluments,  and  credit  is  extended,  this  is 
a  false  pretense.^' 

18 — United     States     v     Farnham, 

lL'7   Fffl.    Hf'p.   478. 


False  Pketenses  449 

§  499.  Both  sellers  and  purchasers  may  be  gruilty  of 
false  pretenses.  Any  attempt  to  cheat  is  regarded  by  the 
law  as  criminal.  So  at  the  common  law  the  seller  who 
had  a  false  weight  or  a  false  measure  or  other  false 
token  or  symbol,  which  tended  to  cheat  and  defraud 
everj^body  in  general,  and  which  was  not  leveled  at  the 
individual  in  particular,  was  guilty  of  the  crime  of 
cheating.  So  under  the  statutes  where  the  seller  makes 
representation  of  and  concerning  the  quality,  or  quan- 
tity, the  circumstances  being  such  as  to  give  him  special 
knowledge,  which  is  false  and  known  by  him  to  be  such, 
is  guilty  of  false  pretenses.  As  where  the  accused  rep- 
resented that  a  chain  was  of  fifteen  karat  gold,  when  in 
fact  it  was  not  and  he  knew  it  was  not  true,  and  the 
fact  being  specially  within  his  knowledge,  it  was  held 
to  be  a  false  pretense.^^  But  where  the  representation 
is  only  an  expression  of  an  opinion  as  we  have  said  in 
the  preceding  section,  it  is  not  a  false  pretense.  Where 
one  offers  to  sell  property  with  latent  defects,  and  by 
his  representation  it  Ib  made  to  appear  that  there  are 
none,  and  the  buyer  is  induced  to  buy,  this  is  a  false 
pretense  for  the  reason  that  the  purchaser  cannot  by 
exercising  ordinaiy  caution  discover  the  defect.^  But 
where  a  seller  offers  for  sale  a  blind  horse  and  represents 
that  it  is  not  blind  or  sound  as  to  sight,  this  would  not 
be  a  false  pretense,^^  because  it  is  a  statement  that  is 
obviously  false — a  defect  that  any  person  may  see.  But 
where  the  seller  possesses  a  special  knowledge,  a  false 
representation  as  to  the  quality  will  be  criminal.^'^  As 
where  a  horse  is  represented  to  be  sound,  but  is  in  fact 
blind  but  not  apparent  to  the  casual  observer,  but  known 
to  the  owner,  this  is  a  false  pretense. 

19—  21— state  v.   Delyon,   1   Bay    (S. 

20— Jackson    v.    People,    126    111.  C.)    53. 

339,  18  N.  E.  286;  State  v.  Mathews  22— Tatum  v.  State,  58  Ga.  409. 

(Kan.),  10  L.  E.  A.  308.  See  Com.  v.  Jackson,  132  Mass.  16. 
C.  L.— 29 


450  Criminal  Law 

As  the  law  exacts  honesty  from  the  seller  of  goods,  so 
also  it  exacts  it  of  the  purchaser.  Thus  if  he  offers  in 
pajTnent  for  the  goods  purchased  a  worthless  check,  this 
is  equivalent  to  the  representation  that  the  check  will 
be  cashed  when  presented,  and  it  is  a  false  pretense. 
And  so  it  would  be  if  a  tender  was  made  of  a  counter- 
feit coin  in  the  payment.  This,  however,  is  apparently 
in  conflict  with  that  rule  to  the  effect  that  representations 
made  after  the  sale  or  delivery  of  the  property  is  not  a 
false  pretense.  This  is  only  applicable  where  a  credit  is 
extended  and  not  where  the  transaction  is  upon  a  cash 
basis.^ 

§  500.  Difference  between  false  pretense  and  a  non- 
criminal lie.  This  offense  may  be  defined  to  be  the  fraud- 
ulent representation  of  and  concerning  an  existing  or 
passed  fact  by  one  who  knows  the  same  to  be  false  and 
reasonably  calculated  to  cause  another  person  to  part 
with  the  title  of  something  of  value.^*  There  is  very 
little  difference  between  this  offense  and  a  non-criminal 
lie.  But  these  statutes  have  deemed  it  worthy  of  pun- 
ishment for  one  to  represent  to  another  that  a  certain 
fact  exists,  when  it  is  made  with  the  intent  to  cheat  him 
of  his  property.  It  sometimes  presents  a  question  of 
difiiculty  to  detemiine  between  the  mere  lie  and  the 
"False  Pretense."  The  gist  of  this  offense,  is  upon  the 
representations  made,  the  owner  is  induced  to  part  with 
the  title  to  his  property  and  not  the  possession 
merely.  We  have  seen  in  another  connection  that  if  the 
owner  parts  with  the  possession  only,  induced  thereto 
by  false  representation,  it  is  larceny.  The  representation 
must  be  false  and  known  to  be  false  at  the  time  thoy  are 
made,  and  made  with  the  intent  to  defraud  another  of 

23— Foote  V.  Pooplo,  17  Ilun.  (N.  110;    Jicx   v.    RatclilT,   6   Cox   C.   C. 

Y.)  21S;  Malcy  v.  Rtatc,  31  Intl.  02.  324;    Allen   v.   Rtato,    16   Tex.   App. 

24— State    v.    Mathews,    10    Tex-  150;  .Johnson  v.  State,  41  Tex.  65; 

App.  279;   Com.  v.  Drew,  36  Mass.  McKinncy  v.  State,  11  Ark.  594. 


False  Pretenses  451 

his  property.^^  So  it  appears  to  be  the  law  that  notwith- 
standing the  accused  intended  to  restore  the  property, 
or  at  some  time  in  the  future  to  hold  the  owner  harmless 
against  loss,  yet  nevertheless  this  would  be  obtaining 
the  goods  under  the  false  pretense.  This  for  the  very- 
evident  reason  that  the  owner  parted  with  the  title  be- 
lieving the  statements  to  be  true  and  which  the  defendant 
knew  to  be  false.''^  But  if  the  party  to  whom  the  state- 
ment is  made  knows  that  it  is  false,  or  is  so  absurd,  or 
improbable  as  to  create  a  doubt  in  the  mind  of  the  party 
to  whom  the  same  are  directed  as  to  its  truth,  the  fraud- 
ulent intent  of  the  defendant  would  not  constitute  the 
crime,  for  it  is  only  upon  the  combined  false  statement 
knowing  the  same  to  be  false,  and  the  consequent  belief 
in  its  truth  by  the  party  upon  whom  the  fraud  is  intendel 
to  be  perpetrated,  concurring,  constitutes  the  crime.'' 
The  doctrine  of  '^ Caveat  Emptor,"  but  to  a  less  degree 
applies  here  as  in  civil  matter.  So  if  the  statement  of 
the  accused  is  made  with  the  intent  to  deceive  and  with 
the  fraudulent  intent  to  cause  another  to  part  with  the 
title  of  his  property,  yet  nevertheless  if  the  statement 
is  made  in  such  a  manner  or  discloses  such  facts  as  will 
arrest  the  attention  of  a  person  of  ordinary  observation 
and  prudence  (for  every  one  capable  of  contracting  is  re- 
quired to  exercise  due  caution  and  to  rely  upon  a  fair 
use  of  his  own  faculties),  it  would  not  be  a  criminal 
false  pretense.^'  But  a  false  statement  in  explanation  of 
a  patent  defect,  and  which  is  known  to  be  so,  whereby 
one  is  induced  to  part  with  his  property  thereon,  is 
criminal.^ 

25— Stringer    v.    State,    13    Tex.  27— Buckaloo    v.    State,    11    Tex. 

App.  520;  Dorsey  v.  State,  11  Ala.  352. 

40  ;  State  v.  Mathews,  44  Kan.  602,  28— State  v.  Young,  76  N.  C  258 ; 

25  Pac.  36;  State  v.  Field,  118  Ind.  Eainey  v.  State,  94  Ga.  599,  19   S. 

491,  21  N.  E.  252;  Com.  v.  Coe,  115  E.  892;  State  v.  Lambeth,  80  N.  C. 

Mass.  502.  296. 

26— Com.  V.  Schwartz,  92  Ky.  510,  29— State  v.  Wilkinson,  103  N.  C. 

36  Am.  St.  Eep.  609,  18  S.  W.  775.  337,  9  S.  E.  415. 


452  Ckimixal  Law 

§  501.  Representation  by  act  and  by  silence.    At  the 

common  law  the  giving  a  check  was  held  not  be  an  in- 
dictable cheat.  Under  these  statutes  of  false  pretenses, 
there  are  numerous  authorities  to  the  effect  that  if  the 
defendant  give  his  check  in  payment  for  the  purchase  price 
of  goods,  the  mere  fact  that  he  gives  the  check  without 
funds  in  the  bank  upon  which  he  draws  is  a  sufficient 
false  representation  to  constitute  the  crime,  he,  of  course, 
knowing  that  he  has  no  funds  upon  which  to  draw.^° 
There  are  cases  (notably  from  the  Texas  court)  holding 
that  this  is  not  suilicient,  unless  at  the  time  the  check 
is  given  the  defendant,  makes  some  statement,  independ- 
ent of  the  giving  the  check  that  he  has  money  in  the  bank, 
which  acts  as  the  primary  cause  of  the  credit.  Others 
again,  holding  that  it  is  not  sufficient,  because  the  de- 
fendant may  have  authority  to  overdraw  his  accounts,  he 
at  the  time  having  no  funds  to  his  credit.^^  These  author- 
ities, we  believe,  are  against  the  spirit  of  the  law.  The 
giving  the  check  is  certainly  tantamount  to  saying  to  the 
person  granting  the  credit  that  the  purchaser  has  money 
in  the  bank  upon  which  he  has  a  right  to  draw,  and  upon 
which  an  ordinarily  prudent  person  is  entitled  to  rely. 
These  kind  of  cases,  of  course,  are  dependent  upon  the 
circumstances,  and  if  the  defendant  honestly  believed 
that  he  had  funds  upon  which  to  draw  would  not  be 
guilty. 

§  502.  Of  what  elements  composed.     This  offense  is 
composed  of  the  following  elements:     (1)  A  false  state- 

30— People   V.   Donalson,   70   Cal.  App.  104,  38  S.  W.  1008,  66  A.  S. 

116,  11  Pac.  681;  Com.  v.  Drew,  19  R,   794;    Barton  v.  People,   135  111. 

I'ick.   179;   Maley  v.  State,  31   Iiul.  40.-),  25  N.  E.  776,  25  A.  S.  R.  375, 

192;  Barton  v.  People,  135  111.  405,  10  L,  K.  A.  302;  State  v.  Ilammelsy, 

25  Am.  St.  Kcp.  375;  Lesser  v.  Peo-  52  Ore.  156,  96  Pac.  865,  132  A.  S. 

pie,  73  N.  Y.  78.  R.  686,   17  L.  R.  A.    (N.  S.)    244; 

31— Blackwcll    v.    State    41    Tex.  State   v.   Foxton,  166   la.    181,    147 

App.  104,  51  8.  W.  919,  96  Am.  St.  N.  W.  347,  52  L.  R.  A.  919. 
Rep.   778;   Brown  v.   State,  37   Tex. 


False  Pretenses  453 

ment  or  representation  must  have  been  made  with  an 
intent  of  obtaining  the  property  of  another.  (2)  That  the 
statements  were  known  by  the  party  making  them  to 
be  false.  (3)  That  the  false  statements  should  have 
related  to  past  or  existing  fact.  (4)  That  the  statements 
were  believed  by  the  persons  acting  upon  them.  (5)  That 
the  property  was  parted  with  upon  the  strength  of  the 
false  representations. 

THEN  AS  TO  THE  INTENT 

§503.  The  intent  must  be  to  defraud.  There  must 
have  been  an  intent  and  a  purpose  to  defraud  at  the 
time  of  making  the  false  statements. 

It  is  not  essential  that  the  false  statements  be  made 
to  any  particular  person.  If  it  is  made  under  such  con- 
ditions and  circumstances  as  to  influence  the  action  of 
any  person,  it  will  be  sufficient.  As,  for  instance,  a  state- 
ment is  made  publicly  to  a  crowd  of  persons,  or  through 
newspapers  or  otherwise,  meaning  thereby  to  influence 
any  person  who  may  give  heed.^^  Where  the  representa- 
tions are  made  to  an  agent  it  need  not  be  intended  to  de- 
fraud the  agent,  but  to  defraud  the  owner.^*     So  it  is 

32 — State    v.    Turley,    44    S.    W.  necessary  to  show,  and  therefore  to 

267 ;  Rex  v.  Liverlock,  18  Cox  C.  C.  allege,  that  the  prisoner,  with  wicked 

104,   9   Am.   Crim.   Rep.   280;    Lord  or  criminal  mind,   stated  something 

Russell  said:  "The  advertisement  is  which,  if  true,  would  be  an  existing 

addressed   to    all   persons   to   whose  fact;  that  he  did  so  with  the  intent 

knowledge    it   may   come,   and   who  to    procure    money,    etc.;    that    he 

may  desire  to  act  upon  it,  and  if  a  knew  that  the  statement  was — that 

particular  person,  after  seeing  and  is  to  say,  that  so  far  as  his  mind 

hearing  it,  acts  upon  it,  and  goes  to  Avas  concerned,  he  intended  that  his 

the  person  from  whom  it  proceeds,  statements  should  be — false ;  that  by 

and  upon  the  faith  of  it  parts  with  the  statement,  that  he  did  so  act  on 

his  money  or  goods,  it  becomes  an  the  mind  of  the  prosecutor  as  that 

advertisement  to  that  particular  per-  he  did   thereby  obtain  money,  that 

son,  who  is  one  of  the  class  of  per-  the  statement  was  true  in  the  sense 

sons  for  whom  it  was  intended.  "In  of  being  correct. ' ' 
Rex  V.  Aspinal,  2  Q.  B.  D.  48,  the  33— People  v.   Wakely,   68   Mich, 

court  uses  the  following  language:  297,  28  N.  W.  871;  State  v.  Turley, 

"To  support  a  charge  of  obtaining  44  S.  W.  267. 
money,  etc.,  by  false  pretenses,  it  is 


454  Criminal  Law 

the  same  if  the  statement  is  made  to  the  agent  to  be 
communicated  to  the  principal,  with  the  intent  to  have 
the  principal  to  part  with  his  property.^*  So,  also,  if 
the  fraud  is  perpetrated  through  an  innocent  person  as 
agent  of  the  wrong  doer;  as  where  A  gives  B  a  bogus 
check  to  be  passed  upon  any  person  w^ho  might  be  found 
to  cash  it.  The  intent  is  a  question  of  fact  to  be  submitted 
to  the  jury,  and  to  be  determined  by  the  circumstances 
of  the  particular  case.  The  intent  must  be  to  acquire 
the  property  and  to  have  the  title  thereof  divested  out 
of  the  owner,  at  the  time  the  possession  or  the  control 
is  yielded.  The  fact  that  at  the  time  of  acquiring  the 
property  the  falsifier  intended  at  some  future  time  to  re- 
turn the  property  or  to  pay  for  it,  does  not  take  it  out 
of  the  operation  of  the  statute.  If  he  cany  the  falsification 
so  far  as  to  succeed  in  acquiring  the  property,  the  ownier 
relying  upon  the  false  statements,  his  actual  intent  in 
the  matter  is  immaterial,  for  his  acts  coupled  with  his 
representations  supersedes  his  actual  intent  to  return 
or  repay.  This,  in  common  with  all  other  offenses,  the 
essential  act  coupled  with  the  intent  to  connnit  the  crime, 
is  sufficient  to  constitute  it,  and  no  subsequent  repentance 
will  relieve  the  culpability.^ 

§  504.  Defendant  must  have  knowledge  of  the  falsity 
of  the  statements.  It  is  an  essential  element  of  the  intent 
that  the  defendant  at  tlie  time  of  the  false  representation 
knew  that  they  were  false  and  that  he  intended  to  de- 

34— state  v.  Crowley,  39  N.  J.  L.  Wis.    G50,    100    N.   W.   578,    IIG    A. 

204;  State  v.  Stewart,  9  N.  D.  409,  S.  I?.  972,  9  Am.  Cas.  9GG;  State  v. 

8:i    N.   W.   869;    Treadwell   v.   State  Stone,  95   S.   0.   390,   76   S.   E.   108, 

(Ga.),  27  S.  E.  785,  99  Ga.  779.  49   L.   K.   A.    (N.   S.)    574;   State  v. 

35— Com.  V.  Coe,   115  Mass.  481;  Malliew,  44  Kans.  596,  25  Pac.  36, 

State  V.  Thatcher,  35  N.  J.  L.  445;  10   L.    K'.    A.   30S;    State  v.   McCor- 

State   V.    Neimier    (la.),   24   N.   W.  mick,  57   Kan.  440,  4G  Pac.  777,  57 

247,  66  Ta.  634;  Com.  v.  Swartz,  18  A.  S.  I?.  341;  State  v.  Il.im,  93  Mo. 

H.  W.   775;    State   v.   Wi.son    (Mo.),  19n,    6    S.   W.    9G. 
44  S.  W.  722;  ClawHon  v.  Case,  120 


False  Pretenses  455 

fraud.'^  The  innocent  statement  of  a  false  fact  would 
not  constitute  the  intent  required  to  constitute  the  offense, 
notwithstanding  he  intended  to  defraud.  It  seems  to  be 
the  law  that  if  the  defendant  with  the  intent  to  fraud 
make  a  statement  which  he  knows  to  be  false  at  the 
time  he  makes  it,  whereby  he  intends  to  get  the  property 
of  another,  and  before  the  property  is  delivered  to  him, 
his  statement  becomes  true,  or  he  by  his  own  act  makes 
them  good,  or  cause  them  to  become  true,  then  there  is 
no  false  pretense.^"'  The  defendant  having  the  intent  to 
acquire  the  property  of  some  person  upon  whom  the  pre- 
tenses may  operate,  and  upon  the  strength  of  the  repre- 
sentations any  thing  of  value  is  delivered  to  him,  to  be 
used  as  his  own  or  as  the  property  of  any  person  other 
than  the  owner,  it  is  not  material  that  the  owner  be  in 
fact  injured,  or  that  he  lose  any  of  his  property  or  any 
right  to  it.  If  the  defendant  believes  the  pretenses  to 
be  false  when  in  fact  it  is  true,  it's  no  crime.^^ 

§  505.  The  intent  of  the  prosecutor.  The  person  upon 
whom  the  false  statement  is  intended  to  operate  must 
have  believed  that  the  statements  were  true,  and  that 
he  intended  to  part  with  the  title  of  the  property.  Tf 
the  statements  made  to  him  were  believed  by  him  to  be 
true  and  he  did  not,  however,  part  with  the  title  of  the 
property,  but  the  possession  only,  this  is  not  false  pre- 
tense. The  intention  of  the  owner  to  part  with  the  title 
to  his  property  where  that  intention  is  produced  by  n 
false  statement  does  not  legally  divest  him  of  the  title, 
and  the  property  is  still  his,  and  may  be  recovered  by  him 

36 — Com.    V.    Devlin,    141    Mass.  there  is  no  criminal  attempt,  for  it 

423,  6  N.  E.  64.  follows  there  is  change  of  purpose 

37 — In  re  Snyder,  17  Kans.  — ,  2  by   the    person   to    obtain    property 

Am.  Eep.  238.    The  court  says:  "If  by  a  false  pretense  before  any  other 

a  party  by  his  own  acts  makes  a  false  wrongful  act  is  committed  than  the 

representation  good,  before  the  ob-  making     the     false     pretense,     the 

taining    of    the    property,    there    is  crime  of  attempt  is  taken  away. ' ' 

no  consummation  of  the  crime,  and  38 — State  v.  Asher,  50  Ark.  427. 


-456  Criminal  Law 

hj  suit  in  replevin.  Hence  his  intention  in  the  premises 
must  have  been  the  same  as  if  he  in  fact  was  intending- 
to  part  with  his  title  in  fact.  As  we  have  in  another  page 
stated,  this  intention  must  be  formed  upon  representa- 
tions which  are  not  so  unreasonable  as  to  cany  incre- 
dulity upon  their  face.  Statements  which  are  obviously 
false,  or  which  persons  of  ordinaiy  prudence  and  obser- 
vation know  to  be  false,  is  not  sufficient  to  be  the  basis 
for  forming  an  intent  to  part  with  one's  property.  The 
mere  reliance  upon  the  truth  of  the  statements  is,  in  some 
cases,  not  enough.  Thus  where  the  law  requires  an  in- 
strument to  be  placed  on  record,  and  the  representations 
are  that  the  property  is  free  from  incumbrance,  when  in 
fact  there  is  a  mortgage  on  record,  this  is  not  a  false 
pretense.  So,  as  we  have  stated  elsewhere,  the  doctrine 
of  caviat  emptor,  applies  and  the  party  must  to  some 
extent  rely  upon  his  own  judgment.  Whenever  the  na- 
ture of  the  transaction  is  such  as  to  require  the  party  upon 
whom  the  false  pretense  is  attempted  to  be  imposed,  to 
beware,  or  in  other  words,  look  out  for  himself,  then  this 
is  not  a  false  pretense.  Any  statement  of  fact  within 
the  knowledge  of  the  defendant  known  to  be  false,  and 
not  known  to  be  false  by  the  party  upon  whom  imposed, 
and  upon  whom  there  is  no  duty  to  make  inquiry  as  to 
its  truth,  and  being  relied  upon  by  him,  this  is  a  false 
pretense.^ 

39— State  v.  Miller,  47   Ore.  5G2,  S.    ]{.   .300,   45   L.   E.   A.   424.     For 

85  Pac.  8],  6  L.  R,  A.  (N.  S.)  365;  a    full    discussion    of    the    principle 

Chancey   v.    State,   130    Ala.   71,   30  involved    in    this    section,    see    the 

So.  403,  89  A.   S.  R.   17;    State  v.  note  to  Barton  v.   People,   25  Am, 

Mathews,  44  Kan.  591,  25  Pac.  3G,  St.   Re]).  ;?78  to  387,  and  the  cases 

10  L.  R.  A.  308;   Lefter  v.   State,  cited. 
^r,■^    Ind.    H2,   54   N.   E.   439,   74   A. 


CHAPTER   XXIX 


FORGERY 


§  506.  Definition.  §  518. 

§  507.  The    crime,    how    committed.       §  519. 
§  508.  Same,   continued. 
§  509.  Signing  the  name  of  another       §  520. 

as   the  agent. 
§  510.  Subsequent      ratification      of       §  521. 

the  act  by  principal. 
§  511.  Falsely    personating   another.       §  522. 
§512.  Altering   the   original   entries 

of  books  of  account  is.  §  523. 

§  513.  Antedating       instrument       is 

when. 
§  514.  Falsifying   records    is,   when.       §  524. 
§  515.  Falsely     reading     instrument       §  525. 

to      another      who      cannot       §  526. 

read. 
§  516.  Instrument  must  affect  prop- 
erty. §  527. 
§  517.  Of  the  statutes  of  the  states. 


Specific  intent  to  defraud. 
Recording  instrument  is  suf- 
ficient publication. 
Instrument   must   be   set   out 

in   words   and   figures. 
What  instrument  is  the  basis 

of. 
Following    the    laws    of    the 

statutes  is  sufficient. 
Indictment        may        contain 

count  for  passing  and  for 

the  forgery. 
As  to  evidence. 
LaAv  of  Scotland. 
Passing  is  not  proved  till   it 

is  shown  that  it  passed  to 

another. 
The  attempt. 


§  506.  Definition  and  description.  Forgery  has  been 
defined  to  be  the  fraudulent  making  or  altering  any  in- 
strument in  writing,  whereby  the  right  of  another  is 
prejudiced.^  It  is  where  the  making  and  the  altering  of 
a  written  or  printed  instrument,  which  if  genuine,  as 
altered  or  made,  would  subject  another  to  a  suit  or  lia- 
bility.^ The  injury  is  not  necessarily  confined  to  the  per- 
son whose  name  is  forged  or  against  whom  the  false  iii- 


1—4  Bla.  247;   3  Greenl.  103. 

2—2  Greenl.  103.  See  note  also. 
In  the  case  of  Hamrick  v.  Dodd,  62 
Tex.  75,  the  court  said:  "Forgery 
is  the  making  of  a  false  instrument 
in  writing  Avithout  lawful  author- 
ity, with  intent  to  injury  or  de- 
fraud, purporting  to  be  the  act  of 


another,  in  such  manner  that  the 
false  instrument  so  made  would  if 
true,  have  created,  increased,  dimin- 
ished, discharged  or  defeated  any 
pecuniary  obligation  or  would  hav? 
transferred,  or  would  in  some  man- 
ner have  affected  one's  property." 


457 


458  Criminal  Law 

strument  is  made,  it  may  be  to  another  person  whose 
rights  have  been  affected  thereby.     Nor  is  it  essential 
that  any  person  be  in  fact  injured  by  the  forger^-,  it  i ; 
sufficient  that  under  any  circumstances  he,  against  whom 
the  forgery  is  made,  might  be  liable  under  the  instrument. 
It  is  sufficient  to  a  conviction  that  the  malo  animo  existed 
and  that  the  forgery  was  made  for  the  pui*pose  of  de- 
frauding.   The  intent  to  defraud  is  the  gist  of  the  offense 
and  where  there  is  no  such  intent,  there  can  be  no  guilt. 
At  the  common  law  this  offense  was  a  misdemeanor  only. 
It  is  believed  that  in  most  of  the  American  states,  by 
statute  the  crime  is  a  felony.     In  some  of  these  states 
the  crime  is  defined  by  statute,  and  the  statute  must  be 
resorted  to.    Or,  to  state  it  differently,  the  forgery  of 
the  common  law  in  the  absence  of  the  authority  of  the 
statute  can  be  resorted  to  for  definition  and  description.' 
As  to  what  particular  acts  constitute  the  crime  unde:- 
the  statute,  must  be  sought  for  there;  and  this  may  be  de- 
termined by  the  common  law  if  it  is  in  force  in  that 
jurisdiction.     The  making  or  altering  must  be  of  such 
a  character  as  to  purport  the  writing  or  instrument  to 
be  genuine  upon  its  face;  its  validity  must  also  appear 
upon  its  face,  although  there  may  be  latent  defects  which 
affect  the  validity  thereof.     The  deception  is  sufficient 
if  the  instrument  upon  its  face  would  deceive  a  person 
of  ordinary  business  capacity  and  the  ordinaiy  under- 
standing, as  to  its  legal  effect.* 

§  507.  The  crime,  how  committed.    The  alteration  may 
be  very  slight,  yet  if  it  change  the  meaning  and  tlio 

3—3  Grecnl.  103.     Some  forgeries  Am.   Ecp.   46;    Eollins   v.   State,   22 

such  as  that  of  Royal  charters  were  Tex.  App.  548,  3  S.  W.  759,  58  Am. 

felonies.  ^^ep.    659;    Allen   v.   State,   44   Tex. 

4—3      Greenl.      105;      State      v.  App.  63,  68  S.  W.  286,  100  A.  S.  E. 

Chunc,  82  Kan.  338,  108  Pac.  789,  839.     See   note   Arnold  v.   Cost,   22 

20  Ann.  Cas.  164,  27  L.  R.  A.   (N.  Am.  Dec.  306;   State  v.  Gryder,  44 

S.)  1003;  State  V.  Warren,  109  Mo,  La.    Ann.    962,    32    A.    S.    R.    358, 

430,  19  S.  W.  191,  32  A.  S.  R.  681  ;  11   So.  573. 
Baysinger  v.  State,   77   Atl.  63,  54 


FOEGEBY  459 

effect  of  the  instrument,  it  will  be  forgery.  So,  under 
some  circumstances,  the  changing  of  one  letter  or  one 
figure  will  be  sufficient.  It  is  immaterial  that  the  entire 
writing  is  changed,  but  the  alteration  must  be  of  some 
material  part,  and  which  affects  its  materiality.^  To 
erase  from  or  add  to  an  instrument,  matter  which  does 
not  affect  its  validity  or  legality,  cannot  constitute  the 
offense;  such  as  to  falsely  affix  the  name  of  a  witness 
which  the  law  does  not  require,  or  to  add  words  which 
the  law  would  supply.^  Nor  will  the  burning  or  other- 
wise totally  destroying  an  instrument.  In  one  case  it 
was  held  that  where  an  acquittance  was  written  on  the 
back  of  a  bond  and  afterwards  totally  erased,  and  it 
being  an  entire  instrument  independent  in  its  effect,  from 
that  of  the  bond,  that  this  did  not  constitute  the  forgery.'^ 
Instruments  which  are  prohibited  by  law,  or  such  instru- 
ments as  have  no  validity  by  reason  of  the  prohibitions 
of  the  law  such  as  lottery  tickets,  the  lotteries  which 
they  represent  being  contrary  to  public  policy,  are  not 
subject  to  forgeiy.*  So,  also,  where  banks,  companies  or 
corporations  are  prohibited  to  issue  certain  kinds  of 
bills,  coupons,  tickets,  etc.,  the  making  and  the  altering 
of  such  instruments,  is  not  forgery.  Thus  the  rule,  that 
all  forgeries  and  counterfeiting  must  be  of  instrumentrj 
or  things  which  if  genuine  would  caiTy  with  it  a  liability 
to  some  person. 

5— state  V.  Stratton,  27  la.  420,  837,   Ann.    Cas.    1912  D   239;    State 

1  Am.  Eep.   282;    Gordon  v.  Com.,  v.  Hindrj-,  156  Ind.  392,  50  N.  E. 

100  Va.  825,  41  S.  E.  746,  57  L.  E.  1041,    54    L.    E.    A.    794;    State    v. 

A.   744;   State  v.  Mitton,  37  Mont.  Higgins,  60  Minn.  1,  61  N.  W.  816, 

366,  96  Pae.  926,  127  A.  S.  E.  732;  51  A.  S.  E.  490,  27  L.  E.  A.  74. 

Hendricks   v.    State,    26    Tex.    App.  6— Hunt  v.  Adams,  6  Mass.  519; 

176,  8  A.  S.  E.  466,  9  S.  W.  555,  8  State  v.  Thornberry,  6  Ired.  79   (28 

Am.  Cr.  Eep.  276;  Walker  v.  State,  N.   C),   44   Am.   Dec.    67. 

127   Ga.   48,  56  S.  E.   113,   119   A.  7— State    v.    Gherkin,    7    Ired.    7, 

S.  E.  314.     See  note,  p.  317,  Utter-  206. 

ing    forged    instrument.      People    v.  8— People    v.    Wilson,    6    Johns. 

Lewinger,    252    111.    332,    96    N.    E.  320. 


460  Ckiminal  Law 

There  is  no  difference  in  the  principles  governing  the 
two  crimes  except  that  the  former  is  confined  to  the  mak- 
ing and  altering  of  written  or  printed  instiniments,  pass- 
ing among  the  people  in  their  private  capacity,  while  in 
the  latter  it  is  the  making  and  altering  and  debasing  the 
coin  or  bills  issued  by  the  govennnent  in  its  representa- 
tive capacity.  Sometimes  the  tenn  ''counterfeiting"  is 
used  in  connection  with  the  changing  and  alteration 
of  trade-marks  of  individual  persons  and  of  the  seal  of 
private  persons  or  corporations.  The  tenH  ''coun- 
terfeiting" used  in  such  connection  can  mean  nothing 
more  than  forgery. 

§  508.  As  to  how  the  crime  may  be  committed — Con- 
tinued. Forgery  is  committed  by  filling  in  the  blanks 
in  blank  notes,  deeds,  bonds,  etc.,  to  which  a  person's 
name  is  written,  when  done  without  the  authority  of 
the  persons  whose  names  are  so  attached.  Thus  an  agent 
who  inserts  in  a  blank  check  different  amount  than  he 
is  authorized  to  do  by  his  principal,  is  guilty  of  forgeiy.* 
The  making  a  false  credit  upon  a  promissory  note,  or 
another  written  obligation,  purporting  to  be  the  act  of 
the  payee  or  obligee,  or  the  altering  or  erasing  a  credit 
made  and  signed  by  the  payee.  But  where  the  charge  is 
that  the  forgeiy  was  committed  by  tearing  off  or  detach- 
ing the  credit,  has  been  held  not  to  be  within  the  terms  of 
tlio  statute.  The  court  said  in  disposing  of  the  case  that 
' '  There  is  a  clear  distinction  in  case  where  a  credit  is  en- 
dorsed on  the  back  of  the  note  or  due  bill  and  signed  by 
tlie  payee,  or  where  the  credits  arc  endorsed  by  mutual 
consent,  and  subsequently  erased  or  altered  with  intent  to 
defraud,  and  where  the  credit  is  entered  below  the  note, 
on  the  same  piece  of  paper,  with  intent  to  defraud.  In  the 
first  class  of  cases,  the  offense  wouUl  be  forgery  within 

9— state  V.  Millncr,  33  S.  W.  15;        v.   Com.,   75    Am.   Dec.   508,   3'J    Pa. 
Hooper  v.  8tate,  30  Tex.  App.  412;       St.  529. 
State  V.  Krocgcr,  47  Mo.  552;  Biles 


Forgery  461 

"the  meaning  of  the  statute.  In  the  latter,  there  being  no 
alteration  or  change  in  the  words  or  figures,  it  would  not 
be."  It  is  clear,  if  the  instruments  are  distinct  and  sep- 
arate in  legal  meaning,  the  tearing  off  or  detaching  the 
one  from  the  other  is  not  forgery,  notwithstanding,  they 
may  be  written  on  the  same  piece  of  paper."  The  agent 
who  exceeds  the  authority  of  his  principal  in  filling  out 
blanks  in  commercial  instruments,  given  him  to  fill  out 
and  deliver  and  pass  to  others,  is  not  necessarily  guilty 
of  forgery;  in  order  to  create  his  guilty  connection  in 
the  transaction  he  must  have  done  so  for  the  purpose 
of  converting  the  funds  of  the  principal  to  his  own  use. 
If  he  merely  exceed  his  authority,  and  thereby  not  in- 
tending to  defraud  the  owner,  he  will  be  subject  to  civil 
liability  only. 

§  509.  Signing  the  namie  of  another  person  as  the  agent. 

Where  one  signs  the  name  of  another  person,  as  agent, 
and  the  fact  of  his  agency  appears  upon  the  face  of  the 
instrument,  this  is  not  forgery,  notwithstanding,  he  was 
not  agent  as  the  instrument  represented.  The  reason 
of  the  rule  is  apparent.  Because  the  cheating  or  defraud- 
ing— the  essence  of  forgery — is  intended  to  be  accom- 
plished by  passing  to  another  with  the  intent  of  deceiving 
him,  the  instrument  which  purports  to  be  the  genuine 
signature  or  instrument  of  another  person  than  himself. 
But  in  this  character  of  case,  notice  is  given  to  all  per- 
sons that  he  signed  the  instrument,  and  made  the  sig- 
nature for  and  in  the  behalf  of  the  principal,  which 
appears  openly  upon  its  face.^^  So,  the  making  and  ex- 
ecuting a  conveyance  to  land,  by  one  who  represents 
himself  to  be  the  attorney  in  fact  for  such  principal,  is 

10— state     V.     McLean,     Aikens  1332,  16  So.  190,  49  A.  S.  R.  351; 

311;    State    v.    Thornburg,    6    Ired.  Com.  v.  Baldwin,  77  Mass.  187,  11 

79;  Kegg  v.  State,  10  Ohio  St.  75  Gray  197,  71  Am,  Dee.  703;  Mann 

(28  N.  C),  44  Am.  Dec.  67;  State  v.   People,   15    (N.   Y.)    Hun.    155; 

V.  Davis,  53  la.  252,  5  N.  W.  147.  People  v.  Bendit,  141  Cal.   274,  31 

11— State  V.  Taylor,  46  La.  Ann.  L.  R.  A.  831. 


462  Criminal  Law 

not  forgery,  for  the  same  reason.  So,  where  one  as  the 
agent  of  the  principal  signs  checks,  or  where  he  signs 
them  as  the  agent  when  in  fact  he  is  not,  but  signs,  "per 
procuration, ' '  he  is  not  guilty  of  forgery.  No  one  having 
to  do  with  the  instiniment  so  signed  can  be  deceived  as 
to  the  making,  and  the  signing,  but  as  to  the  assumed 
authority  only.^^ 

§  510.  The  subsequent  ratification  of  the  act  by  prin- 
cipal. No  subsequent  ratification  of  the  act  by  the  person 
against  whom  the  forgery  has  been  directed  will  relieve 
the  act  of  its  criminal  nature."  But  where  one  commits 
a  forgery  honestly  believing  that  he  has  authority  of  the 
persons  whose  act  it  purports  to  be,  is  not  guilty.^*  Where 
one  commits  the  culpable  act  with  the  consent  of  the 
person  whose  act  it  purports  to  be,  is  also  not  guilty.^^ 

§  511.  Falsely  personating  another.  AVhere  A  with  a 
fraudulent  intent  procures  B  to  sign  his  name  to  an 
instrument,  which  is  the  same  name  as  that  of  C,  and 
subsequently  passes  the  same  as  the  act  and  instru- 
ment of  C,  he  is  guilty  of  forgery  whether  B  is  an  in- 
nocent agent  or  not.^^  One  falsely  personating  an- 
other and  signing  his  own  name  to  an  instrument,  which 
purports  to  be  and  is  designed  to  be  received  as 
the  instrument  of  such  other  having  the  same  name,  is 
guilty  of  forgery.^'  So  again  A  with  intent  to  defraud 
and  deceive  procures  B  to  sign  liis  name,  which  name  is 
designed  at  tlie  time  to  be  a  fictitious  and  non-existent 

12— state  V.  Wilson,  28  Minn.  52,  14— Sweet  v.  State,  28  Tex.  App. 

.3    Cr.   L.   Mag.    124,   A.   N.    E.    28;  223,  12  S.  W.  590. 

In  H!  Tiilly,  20  Fed.  Rep.  812;  Peo-  15— McCoy  v.  State,  32  Tex.  Ap]). 

jile  V.  Bendit,  111   Cal.  274,  43  I'ac.  233. 

Udl,  r,2   A.  S.  R.   180,   31   L.   R.   A.  IC. -IVel  v.  State,  33   S.  W.   541, 

831;  Com.  v.  Fester,  114  Mass.  311,  35   Tex.   App.  308,   60   A.  S.  R.   49. 

19  Am,  Rep.  353.  17— Com.    v.    Baldwin,    71     Am. 

13— Cauntee    v.    State,    33    S.    W.  Pec.   7(M,   11    Cray   197    (MnsH.). 
127. 


FORGEKY  463 

person,  forgery  is  committed  by  such  transaction.^^  So, 
also,  thus,  A,  a  real  person,  makes  his  genuine  endorse- 
ment on  a  note  and  B  representing  himself  to  be  A  and 
thereby  procures  the  payment  of  the  note;  ^®  so,  where  one 
represents  himself  to  the  postmaster  that  he  is  the  payee 
in  a  money  order,  and  signs  the  payee's  receipt,  as  the 
payee.  But  where  one  signs  a  fictitious  name  to  a  check 
and  passes  it  as  his  own,  this  is  not  forgery,  for  the  credit 
is  given  himself  and  not  to  the  name. 

Procuring  a  genuine  signature  by  deception  and  fraud, 
such  as  falsely  reading  an  amount  in  a  note  intended  to 
be  signed  as  a  genuine  instimment,  at  a  less  amount  than 
it  purports  to  be  is  not  forgery .^"^  As  to  the  principle 
here  involved  there  appears  to  be  a  great  conflict  in  the 
authorities.  In  a  Maine  case  the  court  held  where  the 
grantee  in  a  deed,  which  lawfully  conveyed  the  land  in- 
tended to  be  conveyed,  took  it  and  submitted  it  to  the 
grantor,  who  acquiesced  in  it,  and  turned  it  to  the  grantee 
and  afterwards  the  grantee  prepared  another  one  in  lieu 
of  the  first,  which  contained  matter  not  in  the  one  sub- 
mitted and  which  was  signed  by  the  grantor  believing  it 
the  same  as  the  first,  it  was  forgery. ^^  The  difference 
in  the  views  of  the  courts  touching  these  disputed  ques- 
tions may  be  satisfactorily  reconciled  by  drawing  this 
distinction.  1.  Where  the  signature  is  obtained  to  an 
instrument  intended  to  be  signed  and  the  same  is  falsely 
read,  then  the  transaction  does  not  amount  to  forgery. 
But  2.  Where  the  signature  obtained  to  an  instrument 
not  intended  to  be  signed,  but  falsely  represented  to  be 
the  one  intended,  is  forgery.^ 


22 


18— Browns'    case,    1    Arch,    Cr.  20— Hill    v.    State,    1    Yerg.    75; 

PI.;    Baldwin's    case,    supra;    Bar-  Com.  v.  Sonkey,  22  Pa.  St.  390,  GO 

field  V.  State,  29  Ga.  127,   72  Am.  Am.  Dec.  91. 

Dec.  1.  21— State    v.    Shartliff,    18    Me. 

19 — Baldwin  v.  Com.,  71  Am.. Dec.  368. 

704,  supra.     See   Helvie's   case   re-  22 — See  note,  Arnold  v.  Cost,  22 

ferrcd   to  therein.  Am.  Dec.   312. 


464  Criminal  Law 

§  512.  Altering  the  original  entries  of  books  of  ac- 
count, forgery.  As  a  general  rule  a  man  may  do  with 
that  which  is  his  as  he  likes,  but  this  rule  as  all  others 
has  its  exceptions  and  limitations.  So,  in  keeping  with 
this,  a  person  engaged  in  conmiercial  pursuits  where  it 
becomes  necessary  to  keep  books  of  accounts,  may  keep 
them  best  suited  to  his  inclination,  but  this  has  its  limi- 
tations and  exceptions.  So  where  one  makes  entries  and 
alters  his  accounts,  ledgers  or  other  books  kept  for  the 
purpose  of  keeping  track  of  his  business,  may  do  so  at 
his  will  so  long  as  this  does  not  injuriously  affect  the  in- 
terest of  another  person.  Where  the  entry  or  altering  of 
an  original  entry  is  made  to  deceive  and  defraud  another, 
this  is  forgery.*^*  As  where  A  made  a  false  entiy  in  the 
ledger  under  his  control  as  cashier  or  clerk  in  a  public 
office  for  the  purpose  of  defrauding  and  deceiving.^*  So 
again  where  the  sergeant-at-arais  of  the  legislature 
falsely  changed  his  accounts  for  stamps  which  were  for 
the  use  of  the  members  of  the  legislature.^*  Thus  it  is  for- 
gery to  alter  the  entries  or  to  make  false  original  entries 
Avhen  such  entries  may  be  used  as  evidence  against  an- 
other;'^^  the  false  manufacturing  of  written  evidence 
against  another  is  forgery.'^"'^  There  is  no  unifonnity 
among  the  English  and  American  authorities  touching 
the  question  whetlier  the  false  entries  made  in  books  of 
entry  by  the  agents,  clerks  or  servants  of  anotlior  is  for- 
gery. In  fact  the  English  courts  appear  to  be  uniform 
in  holding  that  such  false  entries  are  not  forgeries,  al- 
thougli  made  for  the  pui-pose  of  covering  recent  or  remote 

23— state  v,  Cliance,  82  Kan.  392,  2.'^— Ilonnesy    v.    State,    23     Tex. 

U)8    Pac.    791,    20    Am.    Ca.s.    134;  Aj)p.  1.-57,  5  S.  W.  789. 

State   V.   Young,   88   Am.   Dec.   212,  2G— Kcgina  v.  Sniith,  9  Cox  C.  C. 

46  N.  11.  260;  Biles  v.  Com.,  75  Am.  102. 

F)ec.  ."568,  32   Pa.  St.  529;   Bowman  27— In    re    Tiillv,    20    IV.l.    Hop. 

V.  State,  15  Ohio   St.   717,  45   Am.  812. 
Dec.    601. 

24 — People    v.    I'liolps,    49    How. 
(N.  Y.)   Pr.  462. 


Forgery  465 

embezzlements.  But  the  courts  of  the  United  States  are 
almost  as  uniform  in  declaring  that  such  entries  are  for- 
geries. Now  reverting  to  the  rule  that  one  has  the  right 
to  make  such  disposition  of  those  things  which  belong 
to  himself  as  he  may  desire,  yet  as  we  have  stated,  this  is 
dependent  upon  whether  the  matter  will  affect  the  owner 
or  another.  Biit  where  one  acts  as  the  agent,  the  falsi- 
fication of  accounts  which  is  made  to  cover  peculation  by 
the  agents,  is  clearly  forgery,  for  his  business  is  to  keep 
correct  accounts  of  the  business.  It  is  to  be  observed  that 
the  decisions  of  the  court  holding  that  such  entries  are 
forgeries  are  not  in  keeping  with  the  definition  of  forgery 
at  the  common  law,  in  the  particular  that  the  making  and 
altering  of  a  writing,  so  as  to  come  within  the  teiTns  of 
the  definition  must  purport  to  be  the  act  of  some  other 
person  other  than  the  person  making  or  altering  the  in- 
strument. The  review  of  the  authorities  do  not  throw  a 
very  satisfactory  light  upon  the  subject. 

§  513.  Antedating  an  instrument  for  the  purpose  of  de- 
frauding is  forgery.  Altering  an  instrument  with  the 
fraudulent  intent  of  effecting  the  interest  of  another  per- 
son by  affixing  an  antedate  thereto  is  forgery.  Thus  where 
one  falsely  antedates  a  deed  of  conveyance  for  the  pur- 
pose of  defrauding  one  to  whom  he  had  previously  con- 
veyed the  same  land.^'  So,  also  if  a  genuine  instrument 
is  altered  as  to  make  it  appear  as  the  act  of  a  different 
person,  or  even  as  a  fictitious  person.  As  where  A  pro- 
cures his  servant  William  Wilkerson  to  write  his  ac- 
ceptance across  the  back  of  a  bill,  and  thereafter  filled 
it  out  as  a  bill  drawn  upon  William  AVilkerson,  Halifax, 
a  different  person,  it  was  held  to  be  a  forger}^  So  where 
one  induces  another  to  sign  the  name  of  a  third  person 
to  an  instrument,  upon  the  persuasion  that  he  has  the 

28 — Com.  V.  Baldwin,  71  Am.  Dec.       Eitson,  cited  by  8  Am.  &  Eng.  Eney. 
703,  11  Gray  197    (Mass.);  Eex  v.       472. 
C.  L.— 30 


• 
466 


Criminal  Law 


legal  authority  to  do  so,  for  the  purpose  of  deceit  and 
fraud,  the  act  of  such  innocent  agent  is  his  act,  and  he  is 
guilty  of  forgeiy.  As  where  A  induces  C,  the  daughter 
of  B,  to  sign  the  name  of  her  father  under  the  persuasion 
that  she  possessed  the  authority  to  sign  it.'^ 

§  514.  Falsifying  records.  Falsifying  not  only  of  rec- 
ords but  of  books  of  accounts  Avas  an  offense  at  common 
law.  This  seems  to  have  been  a  distinct  offense  at  com- 
mon law.^°  But  it  is  also  supposed  and  is  supported  by 
authority,  that  the  altering  and  changing  books  of  ac- 
counts is  a  forgeiy.  Falsifying  records  and  all  such  mat- 
ters are  of  the  same  character,  and  possess  many  of  the 
characteristics  of  that  crime.  As  Ave  have  stated  in  a 
preceding  page  that  this  character  of  offenses  do  not 
cover  the  crime  of  forgery  for  the  reason  that  one  of  the 
essential  elements  of  that  offense  is  wanting.  The 
changing  the  record  or  the  account,  or  to  make  a  false 


29 — Gregory  v.  State,  20  Aiii. 
Rep.  774,  26  Ohio  St.  510.  "There 
are  two  theories  in  this  case.  If 
either  of  them  is  true,  the  appellant 
is  guilty  as  charged.  1.  That  ap- 
pellant procured  J.  T.  Peel  of  Hays 
County,  Texas,  to  sign  the  name  of 
.1.  T.  Peel  of  Montgomery  County 
to  an  appeal  bond  in  a  civil  case. 
2.  That  the  appellant  with  fraudu- 
lent intent,  procured  J.  T.  Peel  of 
Hays  County  to  sign  the  bond,  and 
subsequently  passed  it  as  the  sig- 
nature of  .1.  T.  Peel  of  Montgomery 
County.  If  the  testimony  of  J.  T. 
Tc'cl  is  true  then  appellant  procured 
him  to  sign  the  name  J.  T.  Peel 
of  Montgomery  County  to  said 
bond,  and  it  matters  not  wliether  J. 
T.  I'l'ol  of  Hays  County  was  guilty 
of  forgery  or  not.  The  :ippcll:int 
was  not  only  guilty,  but  guiHy  •">« 
j)rincipnl,  for  ho  was  present  .-it  the 
tiinr    tin-    .signature    of    .1.    T.    I'l'l 


of  Montgomery  County  was  signed 
to  the  bond  by  J.  T.  Peel  of  Hays 
County,  requesting  him  to  sign  tlic 
same.  If  Peel  of  Hays  County 
signed  the  bond  as  a  security  there- 
to, with  full  knowledge  of  its  con- 
tents and  purpose,  appellant  was 
nevertheless  guilty  of  forgery,  be- 
cause the  facts  in  the  record  show 
that  he  intended  to  pass  the  bond 
upon  the  clerk  of  Travis  County  as 
having  been  signed  by  J.  T.  Peel 
of  Montgomery  County.  The  first 
theory  needs  no  citation  of  author- 
ity. In  sui>port  of  the  second  we 
cite  the  following:  Ilockcr  v.  State, 
;5  S.  W.  78.1  (Tex.  App.)  ;  Com.  v. 
Stevens,  10  Mass.  LSI;  Com.  v.  Fos- 
ter, 114  Mass.  317;  Barfiold  v. 
Stnte,  20  Gn.  127.  Sec  Pei'l  v. 
State  (Tex.  App.),  3.3  S.  W.  541. 
30— Buviers  Law  Diet.,  15th  Ed. 
041,  Kng.  &  Am.  Kncly.  801;  Com. 
V.  Kste,  140  Mass.  279,  2  N.  E.  769. 


Forgery  467 

record  or  to  make  a  false  account  does  not  necessarily 
purport  to  be  the  act  of  another.  Doing  any  of  these 
things  which  makes  the  account  or  the  record  speak 
other  than  the  truth  is  the  common  law  offense.  As  early 
as  8  Henry  VI.,  Chap.  12,  vacating  and  falsifying  any 
records  of  court  and  by  7  and  8  Geo.  1,  Chap.  27,  any 
person  maliciously  altering  or  injuring  any  writ,  record, 
return,  penal  process,  interrogatory,  deposition,  affidavit, 
rule,  order,  or  warrant  of  attorney,  or  any  other  orig- 
inal document,  of  or  belonging  to  any  court  of  record, 
relating  to  any  matter,  civil  or  criminal,  or  any  other 
paper  document,  was  guilty  of  a  misdemeanor.  These 
statutes  appear  old  enough  to  be  common  law  with  us 
in  the  several  states,  though  we  cannot  point  to  adjudi- 
cation on  this  subject.  It  is  really  unimportant,  for  the 
several  states  have  full  and  complete  statute  covering 
this  character  of  oifenses.  The  destruction  of  deeds, 
notes,  bills,  bills  of  exchange  where  the  same  is  done 
animus  furandi  may  be  reached,  as  common  law  larceny. 
Or  at  least  under  the  statutes.  So  if  the  mutilation  was 
done  for  the  purpose  of  injuring  the  owner  and  not  merely 
to  gain  the  property,  it  would  be  malicious  mischief  at 
common  law. 

§  515.  Falsely  reading  an  instrument  to  one  who  can 
not  read.  Commenting  upon  the  doctrine  of  section 
513,  the  reader  will  note  that  the  peculiar  character  of 
the  fraud  is  the  paramount  reason  for  bringing  such  acts 
within  the  definition  of  forgery.  There  is  authority  that 
falsely  reading  a  genuine  instrument  within  the  hearing 
of  an  illiterate  person  makes  the  act  forgery.  So,  falsely 
representing  to  another  that  an  instrument  is  the  one  to 
be  signed  as  within  his  special  knowledge  and  thereby 
obtains  his  signature  to  a  false  instrument,  is  also  for- 
gery. In  both  cases  the  nature  of  the  fraud  is  the  same ; 
it  is  an  imposition  upon  another 's  confidence.  There  is  a 
duty  resting  on  one  who  signs  a  paper  to  ascertain  its  con- 


468  Criminal  Law 

tents.  Aiid  there  can  be  no  duty  resting  upon  the  other 
party  to  the  contract  to  inform  him,  unless  there  is 
some  substantial  reason;  as  where  there  is  a  great  dis- 
parity in  understanding,  or  in  ability,  either  mental  or 
physical;  or  where  he  is  in  possession  of  facts  which  he 
is  bound  by  fairness  to  disclose.  So  if  he  undertakes  to 
read  an  instrument  for  the  other's  special  knowledge  he 
is  bound  to  read  it  correctly.  Upon  the  authority  of  the 
reported  cases  forgery  may  be  assigned  upon  both  class 
of  cases,  yet  upon  a  close  adherence  to  the  definition  as  by 
common  law,  it  can  not  be  allowed.  Lord  Coke,  2  List. 
269,  says:  "AVhere  A  makes  a  feoffment  to  B  of  certain 
land,  and  afterwards  makes  a  feoffment  to  C  of  the  same 
land,  with  a  date  before  the  feoffment  to  B,  this  was  cer- 
tainly making  a  false  instrument  in  one 's  own  name.  Mak- 
ing one's  own  act  appear  to  have  been  done  at  a  time, 
when  in  fact  it  was  not  done. ' '  The  court  in  a  Massachu- 
setts case  commenting  upon  this  case  of  Lord  Coke's  says: 
''"VVe  fail  to  understand  upon  what  principle  this  case  can 
rest.  If  the  instrument  had  been  executed  in  the  presence 
of  the  feoffee,  and  antedated  in  his  presence,  it  clearly 
could  not  have  been  forgery.  Beyond  this,  as  the  feoft"- 
ment  took  effect  not  by  the  charter  of  feoffment  but  by 
the  livery  of  seizen,  the  entry  of  the  feoffor,  upon  the 
land  with  the  charter  and  the  livery  of  the  twig  or  clod 
ill  the  name  of  the  seizor,  of  all  tlie  land  contained  in  the 
deed,  it  is  not  eas}'  to  see  how  the  date  could  be  mate- 
rial." ^^  According  to  the  law  in  our  states  as  to  the  con- 
veyance of  land  it  is  not  necessary  that  there  be  a  livery 
of  seizen,  as  at  the  common  law  and  the  reasoning  of  the 
Massachusetts  court  is  hardly  applicable  here.  So,  in  a 
Tennessee  case,  whei'e  the  law  is  that  a  justice  of  the 
peace  is  required  to  make  out  a  bill  of  cost  of  cases  tried 

31— Com.    V.    Baldwin,    11     Gray  R.    A.     (N.    S.)     138,    sec    nolo    17 

(MaHS.)     197,    71     Am.    Dec.    704;  Ann.    Ca.s.    703,   see   note    2G   L.    K. 

People  V.   PfeifTcr,  243   Til.  200,  00  A.   (N.  S.)    138. 
N.  E.  080,  17   Ann.  fas.  703,  26  L. 


Forgery  469 

before  liim,  and  present  the  same  to  the  county  court  for 
approval  and  payment,  but  made  out  a  wholly  fictitious 
bill  and  presented  to  the  county  court,  as  a  tnie  bill  of 
the  cost,  the  court  held  he  was  guilty  of  forgery.  ''For- 
gery is  one  class  of  common  law  cheats ;  manifestly  the  bill 
of  costs  alleged  to  have  been  forged  by  Luttrell  is  a  writ- 
ing within  the  scope  of  the  definition  given."  It  is  a 
writing  authorized  and  required  by  law  to  entitle  a  justice 
of  the  peace  to  receive  payment  of  cost  in  criminal  cases. 
If  it  be  genuine  it  undoubtedly  has  ' '  legal  efficacy  and  is 
the  foundation  of  legal  liability,  and  if  it  be  in  due  form, 
though  not  genuine,  it  may  and  will  if  used,  operate  to 
the  prejudice  of  another's  right  against  whom  the  costs 
are  assessed;  and  in  criminal  cases  where  the  judgment 
is  for  the  defendant  to  the  prejudice  of  the  county." 
Hence  we  are  of  the  opinion  that  if  for  no  other  reason, 
the  view  of  the  court  in  this  case,  properly  brings  all  such 
cases  as  we  have  been  discussing  within  the  purview  of 
the  definition  of  the  common  law.  If  not  a  forgery,  it  is  a 
common  law  cheat,  and  as  the  court  says  forgery  itself  is 
a  common  law  cheat.^^ 

CHAKACTER  OF  INSTRUMENT 

§  516.  Must  affect  the  property.  The  instrument  con- 
templated by  the  law  of  which  forgery  may  be  assigned 
is  such  an  one  as  can  be  used  perfectly  or  imperfectly  as 
evidence  against  the  party  in  interest.^'  As  a  general  rule 
the  false  writing  must  affect  or  be  calculated  to  affect 
another  in  property  rights,  and  subject  him  to  some  lia- 
bility, if  the  writing  in  question  was  genuine,  however 
slight.  So,  writs,  process  of  all  kinds,  and  judgments  is- 
sued out  of  courts  of  justice  may  be  the  subject  of  forgery. 
So,  also,  it  may  be  deduced  that  where  a  writing  of  a  na- 
ture which  within  itself,  affects  a  community  as  a  body,  or 

32— Luttrell    v.    State,    1    S.    W.       299 ;  Clark  v.  State,  8  Ohio  St.  630 ; 
(Tenn.)    886.  John  v.  State,  23  Wis.  504. 

33 — State    v.    Thompson,    19    So. 


470  Criminal  Law 

as  a  whole,  forgery  may  be  assigned  because  it  affects  the 
many  individuals — the  public.  A  statute  where  it  con- 
fers a  bounty  upon  all  persons  killing  gophers  when  proof 
is  made  to  the  board  of  supei^^isors,  by  the  presentation 
before  them  a  certificate  of  a  justice  of  the  peace,  the 
false  signing  of  the  justice  of  the  peace,  purporting  to  be 
a  certificate  as  the  law  requires,  is  forgeiy.  The  court 
in  a  Missouri  case  says:  "It  is  the  felonious  making  of 
the  false  instrument  as  true  in  fact  which  constitutes  the 
crime  of  forgeiy.  It  is  not  necessary  for  the  indictment 
to  aver  that  the  instrument  would  have  conveyed  the 
land,  if  genuine.  The  question  is  whether,  upon  its  face, 
it  will  have  the  effect  to  defraud  those  who  may  act  upon 
it  as  genuine,  as  the  person  whose  name  is  forged.  "^^ 
As  between  the  parties  to  a  conveyance  of  land,  the  for- 
gery is  complete  without  the  acknowledgment,  when  the 
signature  of  the  purported  owner  is  attached  to  the  in- 
strument.^^ 

§  517.  Of  the  statutes  of  the  states.  The  statutes  of  the 
several  states  are  not  uniform  in  their  terms,  either  in 
the  description  of  the  various  instruments  of  which  for- 
gery may  be  predicated,  or  in  the  respect  to  the  legality 
of  the  instrument,  as  purporting  a  pecuniary  obligation 
and  the  consequent  interest  of  another  which  may  be  af- 
fected thereby.  So,  in  the  particular  jurisdiction,  the 
rules  of  the  common  law  may  be  greatly  and  materially 
extended.  Under  a  statute  wliich  defines  forgery  to  ])e 
"where  one  without  lawful  authority,  and  witli  intent  to 
injury  or  defraud,  shall  make  a  false  instrument  in  writ- 
ing, pui-porting  to  be  the  act  of  another  in  such  manner 
that  the  false  instrument  so  made  would,  if  tnie,  have 
created,  increased,  diminislied,  discliargcd  or  defeated 
any  pi'ciiiiiary  o])ligali<)ii,  oi"  would  liaxc  1 1'ausrci'i'od  or 
ill    any    iiiaiinci'    alTcctcd    any    jtrojiciiy    wlialcv cr,"    llic 


35— State    V.    .Johnson,    96    Am.  36— State  v.  Fisher,  65  Mo.  437; 

Dec.    158,   26    la.    407.  State   v.  Tobie,   42-  S.  W.   1070. 


FORGEEY  471 

t 

court  held  that  the  following  writing  was  subject  of  for- 
gery. "Mrs.  A.  C.  Neal:  Please  send  my  diploma  to  me 
by  this  young  man,  W.  W.  Wolf."  We  think  this  is  an 
undertaking  in  writing.  It  supposes  a  right  in  Wolf  to 
dispose  of  the  diploma — that  is  to  change  the  posses- 
sion of  it;  and  to  change  the  possession  of  it  would,  in  our 
opinion,  be  a  disposing  of  it  within  the  meaning  of  the 
statute."  So,  in  accordance  with  this,  if  the  instrument 
if  genuine,  would  transfer  the  possession  of  the  property 
merely,  the  act  would  be  forgery.^'' 

Therefore,  under  statutes,  the  common  law  may  be  ex- 
tended to  cover  matter,  that  could  not  be  reached  by  it. 
The  instrument  forged  must,  however,  have  some  legal 
force  and  effect,  otherwise  it  will  not  be  forgery;  as  where 
the  instrument  is  as  follows :  "  To  Any  Railroad  Superin- 
tendent: The  bearer,  T.  H.  Whiley,  has  been  employed 
on  the  A.  &  S.  R.  R.  as  brakeman  and  freight  hand.  He 
goes  west  to  find  a  more  lucrative  position.  Any  courte- 
sies shown  him  will  be  duly  appreciated  and  reciprocated 
should  opportunity  offer.  H.  A.  Fonda,  Superintend- 
ent. ' '  ^®  Now  where  the  instrument,  if  genuine,  upon 
which  forgery  is  predicated,  is  wholly  void  by  reason  of 
the  failure  of  consideration,  or  for  the  failure  to  comply 
with  the  law  in  the  execution  of  the  same,  or  for  any 
other  reason,  a  conviction  would  be  illegal.  As  where  a 
deed  from  a  married  woman,  not  having  been  acknowl- 
edged according  to  the  statute;  or  where  a  bill  is  void  by 
reason  of  not  being  attested  by  a  witness;  or  where  the 
law  requires  a  seal  to  be  placed  upon  an  instrument  and 
the  same  does  not  appear  thereon;  or  where  an  agree- 
ment fails  to  disclose  a  consideration ;  or  where  the  statute 
prescribes  the  form  of  an  instrument  unknown  to  the  com- 
mon law,  so  as  to  render  any  other  form  void.^^ 

37— Alexander  v.   State,   28    Tex.  39— Arnald  v.  Cost,  22  Am.  Dec. 

App.  187,  12  S.  W.  595.  316.     See  note  and  cases  cited. 

38— Waterman  v.   People,   67   111. 
91,  1  Am.  Crim.  Eep.  225. 


472  Ckiminal  Law 

or  THE  INTENT 

§  518.  Specific  intent  to  defraud.  The  mere  act  of 
X^repariug  a  false  instrumeut,  purporting  to  be  the  act 
of  another,  with  no  intent  to  defraud,  is  not  forgery. 
There  must  be  a  specific  intent  to  defraud,  but  that  intent 
need  not  be  to  defraud  any  particular  person,  but  any 
person,  firm,  company  or  corporation,  or  the  public,  is 
sufficient.  The  making  the  false  instrument  for  the 
purpose  and  "with  the  intent  to  defraud  constitutes  the 
crime.  Where  the  fraudulent  design  exists  in  con- 
junction with  the  making  of  the  false  instrument,  it  is  im- 
material that  the  fraud  designed,  or  any  fraud  that  might 
have  resulted,  be  in  fact  atfected.  The  uttering  and  the 
passing  of  the  false  instrument  is  not  essential.  Forgery 
is  one  crime  and  the  uttering  and  the  passing  of  the  same 
is  an  entirely  different  one.  Uttering  consists  in  the  at- 
tempt to  pass  as  genuine  or  in  the  actual  passing  of  a 
forged  instrument  knowing  the  same  to  have  been  forged. 
The  uttering  consists  of  three  elements  which  must  con- 
cur. 1.  The  accused  must  know  that  the  instrument  is 
false.  2.  That  an  attempt  was  made  to  pass  it  as  a  genu- 
ine instrument,  as  that  which  it  purported  to  be.  3.  That 
the  paper  appear  upon  its  face  as  valid.*'' 

§  519.  Recording  an  instrument  is  sufficient  publication. 
The  recording  of  a  forged  discharge  to  a  mortgage,  or  the 
recording  of  a  forged  deed  to  land  is  a  sufficient  uttering 
and  publishing  of  the  forged  instrument  to  warrant  a  con- 
viction.*^   So,  a  draft  made  payable  to  accused,  he  know- 

40— Full   discussion   of   tlic   qucs-  147  Mass.  585,  18  N.  E,  587,  9  A. 

tion    of    intent    see    the    followinp  S.   R.   736,   1   L.  R.   A.   620;    Allen 

caHPs:     Elsey  v.  State,  47  Ark.  572,  v.  State,  44  Tex.  App.  63,  68  S.  W. 

2   S.   W.   337;    U.   S.   v.   Mitchell,   1  286,    100    A.    S.    R.    830;    State    v. 

Hall.   366;    Couch   v.   State,   28   Ga.  Cross,   101   N.  C.   770,  7   S.   E.   715, 

367;    Carver    v.    People,    39    Mich.  n  A.  S.  R.  53;   Barrun  v.  State,  15 

786;    Com.    v.    Sarlo    (2    Binn.),    4  Ohio  St.  717,  45  Am.  Dec.  601. 
Am.  Dec.  446;   People  v.  Caton,  25  41 — People  v.   Swctland    (Mich.), 

Mich.  390;   State  v.  Calkins,  73   la.  43  N.  W.  779,  77  Mich.  53. 
128,  34  N.  W.  777;  Com.  v.  Brown, 


Forgery  473 

ing  it  to  be  a  forgeiy  and  endorsed  by  him,  is  an  utter- 
ing.*^ Where  a  forged  instrument  was  left  in  the  posses- 
sion of  the  prosecuting  witness  for  his  inspection  and  with 
the  intent  thereby  to  induce  him  to  extend  a  benefit  to  the 
defendant,  is  also  sufficient.  Any  act  of  the  utterer  in  the 
direction  of  obtaining  money,  profit,  benefit  or  advantage 
upon  any  forged  paper,  is  the  uttering  of  such  paper, 
whether  he  pass  it  or  not.  It  is  not  necessary  that  any 
person  be  actually  deceived  by  the  false  instrument,  or 
that  he  be  injured  thereby.*^ 

§  520.  Instrument  must  be  set  out  in  words  and  figure. 

The  false  instrument  must  be  set  out  in  the  indictment, 
in  haec  verba,  and  the  allegation  must  affirmatively  show, 
that  it  was  feloniously  and  falsely  made  with  intent 
to  defraud.**  Where  the  alleged  forged  instrument  upon 
its  face  is  insufficient  to  show  a  liability,  there  must  be  an 
allegation  of  facts  to  show  the  liability.*^  The  reason 
why  the  indictment  should  set  out  the  instrument  in  full 
in  words  and  figures,  is  in  order  that  the  court  may  be 
able  to  pass  upon  its  validity.  Where  the  temi  "tenor" 
is  employed  in  the  discretion  of  the  instrument,  it  means 
the  entire  instrument  in  words  and  figures,  but  the  term 
"purport,"  being  less  comprehensive,  only  presents  the 
substance  of  the  instrument  or  the  conclusion  of  the 
pleader.*^  In  the  allegation  of  fraudulent  intent  it  is  not 
necessary  to  name  the  person  defrauded.  So,  when 
the    alleged    forged    instrument    cannot    be    produced, 

42— Timmons    v.    State    (Ga.),    4  United    Sitates    v.    Carpenter,     151 

S.  E.  766,  80  Ga.  216.  Fed.  214,  81  C.  C.  A.  104,  10  Ann. 

43_People  v.  Eathborn,  21  Wend.  Cas.  509,  9  L.  R.  A.   (N.  S.)   1043. 

505;    People   v.   Bingham,    2    Mich.  44—3   Greenl.   104. 

550.      See    following    cases:      Mo-  45— People    v.    Kingley,    2    Cow. 

loney  v.  State,  91  Ark.  485,  121  S.  522;  Com.  v.  Houston,  8  Mass,  107; 

W.  728,  134  A.  S.  R.  83,   18  Ann.  TJ.   S.  v.   Britian,  2  Mason  466;    1 

Cas.  480;  State  v.  Sherwood,  90  la.  Starkie's,  5   Am.  ed.  382. 

550,  58  N.  W.  911,  48  A.  S.  R.  461;  46— State    v.     Callendine,    8    la. 

State  V.  Blogitt,   143   la.   578,   121  288;   State  v.  Johnson,  26  la.  407, 

N.    W.    685,    21    Ann.    Cas.    231;  96  Am.   Dec.   158. 


474  Criminal,  Law 

is  lost  or  in  the  possession  of  the  defendant,  it  is 
enough  to  allege  that  the  instrument  is  lost  and  beyond 
the  reach  of  the  grand  jury,  the  tenor  of  which  is  to  them 
unknown;  but  the  pleader  must  give  such  description  of  it 
as  lay  in  his  power.*'  At  common  law  it  appears  to  have 
been  necessary  that  the  description  of  the  instrument  be 
preceded  by  tlie  phrase:  "to  the  tenor  following"  or  "in 
the  words  and  figures  following. ' '  The  practice  generally 
follows  this  manner  of  description,  but  any  other  terais 
are  sufficient  which  in  clear  language  describes  the  in- 
strument. It  is  better  to  employ  the  phrase,  "to  the 
tenor  following"  than  "to  the  purport  following,"  the 
former  being  a  much  more  comprehensive  term,  implying 
an  exact  copy  of  the  instrument,  the  latter,  the  substance. 

§  521.  What  instrument  is  the  basis  of  forgery.  An  in- 
strument which  upon  its  face  does  not  in  any  manner 
create,  increase,  diminish,  discharge  or  defeat  a  pecuniaiy 
obligation,  may  by  the  employment  of  extrinsic  aver- 
ments, be  made  the  basis  of  forgery."  As  we  have  re- 
marked in  another  connection  the  instrument  in  question 
must  show  upon  its  face  that  it  is  of  such  a  nature  as  to 
create  a  liability,  if  it  were  genuine.  This,  however,  is 
not  always  true,  for  under  some  circumstances  if  the  in- 
strument appears  to  bo  legal  and  there  is  a  latent  defect 
wliich  may  not  be  observed  by  a  person  possessing  ordi- 
naiy  business  capacity,  it  would  yet  be  forgery.*^  The 
reason  of  this  is  evident  from  the  fact  that  the  fraud  may 
as  effectually  be  made  as  if  the  instrument  in  fact  pos- 
sessed all  legal  attril)utes.  When  such  a  case  presents 
itself  it  will  be  necessary  for  the  i)lead('r  to  cover  the 
iii:ittci-  willi  ;ii)i)i-(>i)riate  n\erni(Mits,  toucirmg  its  legality. 

47— State  V.  Tingler,  9  S.  E.  935,  App.   569;   Wiinil.lf   v.   Stato,   44   S. 

32  W.  Va.  540;  State  v.  Callahan,  W.    (Tex.)   827. 

24  N.  E.   (Ind.)   732,  124  Ind.  304.  4'.)— People   v,   Stevens,  21   Wend. 

48— Coylc  V.   State,  44    (Tex.)    S.  409;  Rcmhcrt  v.  State,  25  Am.  Hep. 

W.    10H7;    KinK    v.    State,    27    Tex.  G39,   53   Ala.  467. 


Forgery  475 

Based  upon  the  common  law  the  general  rule  is  that  the 
indictment  must  aver  the  name  of  the  person  who  was 
defrauded.^®  It  seems,  however,  that  some  of  the  statutes 
provide  that  it  is  not  necessary.  That  a  general  allegation 
of  intent  to  defraud  is  enough."  Where  the  forgery  con- 
sists in  the  alteration  of  an  instrument  the  avemients  of 
the  indictment  must  set  out  wherein  the  alteration  is  made 
material  in  charging  a  liability.^^ 

§522.  Following  the  language  of  the  statute  is  suf- 
ficient. Usually  it  is  enough  to  follow  the  language  of 
the  statute  in  the  averments  of  an  offense.  It  is  not,  how- 
ever, necessaiy  that  the  exact  language  be  followed,  but 
any  averment  that  succinctly  and  particularly  covers  the 
intent  of  the  statute  may  be  enough.^^a  r^j^g  words  of  a 
statute  are  not  sufficient  description  of  the  offense  unless 
the  language  fully,  clearly  and  explicitly  define  the  of- 
fense, without  any  uncertainty  or  ambiguity.^^"  When 
such  is  the  case  the  pleader  must  employ  such  terms  as 
clearly  and  definitely  cover  the  nature  of  the  offense. 

§  523.  The  indictment  may  contain  a  count  for  the  pass- 
ing and  the  forgery.  The  indictment  may  contain  a  count 
for  the  forgeiy  and  one  for  the  uttering  and  passing.^'^" 
But  as  we  have  said  in  another  connection  these  are  dis- 

50— Russell  on  Crimes,  19  Am.  ed.  702,   12    So.    883 ;    Horton  v.    State, 

807;    Noakes   v.    People,    25    N.    Y.  53    Ala.    468;    Travis    v.    State,    83 

387.  Ga.  373,  9  S.  E.  1063;  Labaithe  v. 

51_Westbrook  v.   State,   23   Tex.  State,  6  Tex.  App.  257. 

App.  401 ;  State  v.  Warren,  109  Wo.  52b— U.    S.    v.    Caril,    105    U.    S. 

432;    State  v.  Nelson,  28  La.  Ann.  612;    Poage    v.    State,    3    Ohio    St. 

46;  People  v.  Van  Alstine,  57  Micli.  229;    State   v.   McKiernan,    17   Nev. 

74,  23  N.  W.  594.  227,   30  Pac.   831. 

52— State  v.  Fisher,  58  Mo.  256;  52c— Foute     v.     State,     15     Lea. 

State  V.  Means,  47   La.   Ann.   1535,  715;  Luttrell  v.  State,  1  S.  W.  886; 

13   So.   514;   People  v.  O 'Brine,  96  State  v.  Keeter,  80  N.  C.  472;  Boles 

Cal.   171,  31   Pac.   45.  v.   State,   13   Tex.   App.   650;    State 

52a— Harrington     v.     State,     554  v.   Clement,   42   La.   Ann.   583;   Mc- 

Miss.  490;   State  v.   Fisher,  65  Mo.  Cleland   v.   State,   32   Ark.   600. 
438;   State  v.  Stevens,  45  La.  Ann. 


476  Criminal  Law 

tinct  and  separate  offenses  and  proof  of  the  one  is  not  ad- 
missible to  establish  the  other.  So,  where  the  indictment 
is  for  the  forgery,  proof  of  the  uttering  and  passing  to  an- 
other is  unlawful.""  The  allegations  are  similar  in  many 
respects.  So  in  the  main  the  allegations  of  the  indictment 
for  the  uttering  is  that  of  the  forgery,  yet  there  are  ele- 
ments in  this  offense  that  are  not  necessary  in  the  offense 
of  forger}^,  and  which  is  veiy  essential  to  be  alleged  in  the 
indictment  for  the  uttering,  and  hence  a  count  must  be 
laid  for  each.  The  authorities  are  not  uniform  in  this 
however."'  "We  think  however  that  weight  of  authority 
is  with  the  affirmative. 

§  524.  Evidence  is  largely  inferential.  The  evidence 
ill  this  class  of  offenses  is  largely  inferential.  The  intent 
to  defraud  is  to  be  gathered  from  the  circumstances  sur- 
rounding the  case.  The  fact  that  a  man  makes  a  false  in- 
strument, purporting  to  be  the  act  of  another  person,  is 
very  strong  proof  that  he  intended  to  defraud  because  of 
the  fact.  Our  experiences  teach  us  that  men  ordinarily 
do  not  make  false  instruments  for  other  purposes  than  to 
deceive.  The  instrument  alleged  to  have  been  forged 
must  be  offered  in  evidence  if  it  is  in  existence.  If  not, 
the  indictment  must  allege  this  fact,  and  secondaiy  evi- 
dence may  be  offered,  conformably  with  the  allegation 
of  the  indictment.^^  But  even  in  this  case  the  proof  must 
agree  with  the  description  and  the  legal  imi)ort  as  that 

52(1 — Luttrcll   V.   State,    1    S.   W.  fault  of  the  prosecution,  is  no  legal 

(Tenn.)    8HG.  l)ar     to     proceedinf]r     in     the     trial, 

526 — Ball  V.  State,  48  Ark.  01.  though    it    may    increase    tlie    difii- 

53 — Orecnl.  Sec.  107:  "If  the  in-  culty   of   proving   the   crime.      Thus 

.strument    said    to    be    forged    is    in  when    the    forged    deed    was    in   the 

existence  and  accessible,  it  must  be  ])o.sHe8sion  of  the  prisoner,  who  re- 

])roduced  at  the  trial.     But  in  the  fused  to  produce  it,  it  was  held  that 

absence  of  it,  it  be  proved   that  it  the    grand    jury   might    receive   sec- 

is   in    the    prisoner's   pos.sesHion,    or  oiidary     evidence     of    its     contents, 

to   luive   been   destroyed    by  him    or  Notice  must  be  given  to  tlic  (Icfciid- 

othr-rwise     destroyed,     without     the  ant  to  produce  it." 


Forgery  477 

set  out  in  the  indictment.  It  has  long  been  held  to  be  the 
law  that  the  mere  omission  of  letters,  or  any  additions 
made  to  the  instrument,  which  do  not  destroy  the  identity 
of  the  paper  or  which  does  not  affect  its  legality  is  not  a 
fatal  variance.  Thus  where  the  instrument  offered  in  evi- 
dence as  the  instrument  forged  differs  in  any  immaterial 
sense  from  that  recited  in  the  indictment,  the  variance  is 
immaterial.^*  So,  words  employed  in  the  innuendo,  differ- 
ing in  no  material  sense  from  those  in  the  instrument 
offered  in  evidence,  is  no  variance.^^  So,  where  there  is 
a  difference  as  to  date  only  it  is  immaterial.^® 

§  525.  Laws  of  Scotland.  The  laws  of  Scotland  upon 
this  subject  of  evidence  in  forgery  cases  is  presented  and 
arranged  in  the  order  following:  1.  The  testimony  of 
the  person  whose  name  is  alleged  to  have  been  forged.  2. 
Testimony  of  a  person  who  is  acquainted  with  the  hand 
writing  of  the  party  whose  name  is  alleged  to  have  been 
forged,  who  has  seen  him  write.  3.  Of  a  person  who  has 
had  coiTespondence  with  him  but  who  has  not  seen 
him  write.  4.  Comparing  the  instrument  in  question 
with  his  genuine  writing.  5.  Testimony  of  that  class 
of  persons  who  have  by  their  business  been  accus- 
tomed to  compare  hand  writings."  The  general  rule 
of  evidence  is  that  the  best  evidence  of  which  a 
particular  fact  is  capable  of  being  proven  is  to  be 
produced  by  the  party  upon  whom  rests  the  burden 
of  establishing  it.  At  the  common  law  the  party  whose 
name  had  been  forged  was  not  a  competent  witness 
to  establish  the  forgery,  for  the  reason  that  his  interest 
in  the  subject  matter  precluded  him.  This  rule  how- 
ever is  not  adhered  to  in  this  countiy  at  the  present  time, 

54— People  v.  Phillips,  70  Cal.  61,  N.  W.  519;   Com.  v.  Boss,  2  Mass. 

11  Pac.  493.  373. 

55 — Alexander  v.  State   (Tex.),  2  57 — Allison's    Cr.   Laws   of    Scot- 

S.   W.    595.  land,   6   to   15. 
•    56— State  v.  Blanchard    (la.),  38 


478  Ckiminal  Law 

although  many  early  decisions  may  be  fomid  holding 
such.^® 

It  is  not  necessary  that  the  party  should  testify.  His 
failure  to  testify  that  he  did  not  make  the  instrument  or 
the  signature,  increases  the  difficulty  of  establishing  the 
fact  of  forgery.  The  testimony  of  any  person  who  knows 
anything  of  the  hand  writing  of  the  person  whose  name  is 
alleged  to  have  been  forged  is  competent  whether  he  be 
an  expert  or  simply  one  who  has  particular  knowledge  of 
the  hand  writing  in  question. 

A  very  frequent  means  of  detecting  forgery  is  to  show 
that  the  paper  upon  which  the  alleged  forged  instrument 
is  written  bears  the  stamp  of  the  manufactoiy  subsequent 
to  the  date  of  the  paper.  It  is  competent  to  show  that 
the  defendant  at  other  times  offered  or  attempted  to  pass 
the  forged  instiniment.  This  is  competent  for  the  purpose 
of  showing  the  intent  with  which  he  attempted  to  pass 
it.^^  It  is  also  competent  to  show  that  at  other  times  and 
other  places  he  had  in  his  possession  other  forged  instru- 
ments which  he  attempted  to  pass,  knowing  them  to  be 
forged.  When  such  evidence  is  admitted  it  is  for  no  other 
pui'pose  than  throwing  light  upon  the  intent  of  the  ac- 
cused, and  it  should  not  be  admitted  except  upon  the 
explanation  of  the  court  to  that  effect.^"  So  where  the 
indictment  is  for  the  uttering  or  the  passing  of  the  forged 
instrument,  knowing  it  to  have  been  forged,  the  same  rule 
will  apply. ^^    It  appears,  however,  that  in  order  to  show 

58— Tlic    court    in    tlio    following  326;   State  v.   Hodges,  45   (Mo.)    S. 

states    have    held    that    the    person  W.  1093 ;  People  v.  Kemp,  76  Mich, 

whose   name  has  been   forged   is  an  410,  43  N.  W.  439;  Cross  v.  People, 

incompetent  witness,  on  the  ground  47  111.  152,  95  Am.  Dec.  474. 

that  he   is  a   party  in  interest.      1  60 — State  v.  Meyers,  82  Mo.  558; 

Mass.  7;  3  Mass.  82;  5  Mass.  261;  State  v.  Hodges,  45  S.  W.  1093. 

Vermont    v.    Tyler,    260;    Hoathton  61— People  v.  Frank,  28  Cal.  507 ; 

V.    State,    2    Ilayw.    Conn.,    1    Root.  Stoolo   v.   People.  45   HI.   152;   Com. 

296;    2   Rubs.   Cr.   L.   602;    2   Stake  v.  White,   145   Mass.  392,   14  N.   E. 

Ev.  338.  661  ;    Ham.    v.    State,    4    Tex.    App. 

.'9— Burks  V.  State,  24  Tex.  App.  645;  Carver  v.  State.  39  Mich.  786. 


Forgery  479 

that  an  uttering  has  taken  place  it  is  necessary  to  prove 
that  the  false  paper  has  passed  to  another,  or  at  least 
some  affirmative  act  of  the  accused  has  been  made  raising 
the  inference  of  his  intent  to  pass  it.^*  Nor  is  it  essential 
that  the  accused  received  or  acquired  any  benefit  from  the 
act. 

§  526.  Proof  of  passing  is  not  made  till  shown  it  passed 
to  the  person  intended.  Proof  of  uttering  may  be  made 
by  any  circumstance  which  shows  that  an  attempt  was 
made  to  pass  the  instrument. 

But  the  allegation  of  the  indictment  that  the  instru- 
ment was  passed  is  only  proven  when  it  is  shown  that  the 
possession  of  the  forged  paper  was  delivered  to  another 
for  the  purpose  of  defrauding.  It  is  also  necessary  to 
show  that  utterer  knew  at  the  time  that  the  instrument 
was  forged.  The  gist  of  the  offense  consists  in  the  guilty 
knowledge.^^ 

§  527.  Attempt  to  commit.  At  common  law  we  find 
the  crime  of  forgery  is  controlled  by  the  same  rules  as 
other  crimes  as  to  the  doctrine  of  attempts.^*  The 
books  do  not  appear  to  give  veiy  many  instances  where 
this  has  been  before  the  courts,  but  this  may  be  due  in  the 
main  to  the  fact  that  at  common  law,  forgery  is  a  misde- 
meanor. There  are  some  old  statutes  of  England  making 
it  felony.  In  general,  it  is  a  felony.  Blackstone  found 
it  to  be  a  great  species  of  fraud,  and  we  also  learn  that 
it  was  in  some  sense  a  crime  against  the  King's  reve- 

62 — Eathburn  v.  People,  21  that  it  was  good.  The  act  of  pass- 
Wend.  509;  People  v.  Bingham,  2  ing  is  not  complete  until  the  instru- 
Mich.    550.  nient  is  received  by  the  person  to 

63 — The    allegation    of    uttering  whom  it  is  offered.     3  Greenl.  110. 

and    publishing    is    proved    by    evi-  64 — Com.    v.    Foster,    114    Mass. 

dence    that   the   prisoner   offered   to  311,  19  Am.  Kep.  353;  Com.  v.  Ray, 

pass  tlie  instrument  to  another  per-  3   Gray  446;    State  v.   Aims,  2  Me. 

son  declaring  or  asserting,  directly  365;    Waterman   v.    People,    67    111. 

or   indirectly,   by  words   or   actions  91 ;  see  chap,  on  Forgery,  this  work. 


480  Criminal  Law 

nues  at  common  law  and  was  a  kind  of  treason,  for 
treason  by  the  English  law  was  in  part  the  coiTuption 
of  the  coin.  So  if  it  was  a  treason,  all  persons  having 
anything  to  do  with  it  were  guilty  as  principals ;  this  may 
be  another  reason  why  we  do  not  find  more  in  the  books 
about  the  attempt.  Forgeiy  consists  in  the  making  or 
altering  a  material  instrument  with  the  fraudulent  pur- 
pose of  cheating  and  defrauding  another.  There 
seems  to  be  no  good  reason  why  an  attempt  to  do  this 
thing  and  for  some  unlooked-for  circumstance,  a  fail- 
ure occurs  in  the  completion  of  it,  is  not  an  attempt 
to  do  it.^^  The  forgeiy  is  one  crime  and  the  uttering  or 
publishing  it  after  it  is  completed  is  another  and  are 
both  substantive  crimes,  consisting  of  different  ele- 
ments. The  uttering  and  publishing  of  a  forged  instni- 
ment  is  the  obtaining  a  benefit  from  it  knowing  it  was 
forged.  The  offer  to  utter  is  a  crime,  notwithstanding  the 
fraud  is  not  actually  perpetrated  by  receiving  the  benefit. 
This  is  the  attempt,  but  it  has  always  been  considered  a 
substantive  offense,  as  much  as  the  actually  uttering, 
or  passing. 

65 — iCunningham  v.  State,  49 
Miss.  703;  Kafferty  v.  State,  91  la. 
655. 


CHAPTER  XXX 


HOMICIDE 


§  528.  Divisions  of.  §  549. 

§  529.  Murder   defined. 

§  530.  Malice    need    not   be   against       §  550. 

the   person  killed. 
§  531.  Presumptions  as   to  acts.  §  551. 

§  532.  Express   malice,   how   proved. 
§  533.  Presumption    from    proof    of 

corpus    delicti.  §  552. 

§  53-4.  Presumption    as    to    continu- 
ance of  malice.  §  553. 
§  535.  Ignorance   and   negligence  of 

physician.  §  554. 

§  536.  Presumption      as      to      first       §  555. 

wound.  §  556. 

S  537.  Murder  by  other  than  physi-       §  556a 

cal  means.  §  557. 

S  538.  Person    must  be   alive.  §  558. 

§  539.  Dueling.  §  559. 

§  540.  Definition.  §  560. 

8  541.  At    common   law    no    degrees 

of  murder.  §  561. 

§  542.  Murder     by     lying     in     wait, 

poison,  etc. 
§  543.  Specific  intent  to  kill   neces-       §  562. 

sary,  when. 
§  544.  Under    Federal    Statutes    no 

degrees    of   murder.  §  563. 

§  545.  Manslaughter   defended.  §  564. 

§  545a.  Cause   for   jury.  §  565. 

§  546.  Presumption    that    defendant 

acted      upon      provocation,       §  566. 

when.  §  567. 

§  547.  Insulting     word     to     female       §  568. 

relative. 
§  548.  What    is    cooling    time.  §  569. 


Killing  officer  while  making 
arrest. 

Peace  officer  must  act  in  con- 
formity to  law. 

Killing  an  officer  in  resist- 
ance to  arrest,  malice  pre- 
sumed. 

Involuntary  manslaughter 
defined. 

Misdemeanors  merely  mala 
prohibita. 

Negligent    acts. 

Self   defense,   illustrations. 

Apprehension    of   danger. 
Cowardice,   fear,  etc. 

Threats  to  take  life. 

No  felonious  assaults. 

Assault    upon   habitation. 

Attack  upon  property  other 
than  habitation. 

Homicide  committed  in  the 
prevention  of  felony,  jus- 
tifiable. 

The  right  of  the  members  of 
the  family  to  defend  each 
othei". 

The  degree  of  force  used. 

Non  felonious  assaults. 

Wrongful  act  contributing 
to  the  necessity  to  kill. 

Eetreat    and    pursuit. 

Spring  guns. 

Assault  to  murder,  misde- 
meanors at  common  law. 

As    to    the    intent. 


§  528.  Divisions  of  homicide.   Homicide  is  defined  to  be 
the  killing  of  a  human  being  by  himself  or  another.^ 

1—4  Blackstone  178. 

C.L.-31  481 


482  Criminal  Law 

Homicide  by  the  common  law  is  divided  into  five  sub- 
divisions: (1)  Murder.  Where  the  killing  is  done  upon 
malice,  either  express  or  implied.  (2)  Manslaughter. 
Where  the  killing  is  committed  in  hot  blood  or  sudden 
passion  or  the  unforeseen  result  of  unlawful  act,  without 
malice.  (3)  Justifiable.  Where  the  killing  is  owing  to 
some  unavoidable  necessity  without  any  will,  intention 
or  desire,  and  without  any  inadvertence  or  negligence  in 
the  party  killing.  (4)  Excusable.  Where  the  killing  is 
either  committed  in  the  lawful  self-defense  of  one's  per- 
son, habitation  or  property,  or  where  the  killing  is  done 
by  mistake  while  engaged  in  a  lawful  pursuit,  or  where 
the  killing  is  committed  in  the  prevention  of  a  felony.^ 
(5)  Suicide.    Where  one  takes  his  own  life.^ 

§  529.  Murder  defined.  Murder  is  defined  by  Sir  Wm. 
Blackstone:  as  ''where  a  person  of  sound  memoiy  and 
discretion  unlawfully  killeth  any  reasonable  creature,  in 
being,  and  under  the  king's  peace,  with  malice  afore- 
thought, either  expressed  or  implied."*  Thus  it  is  gath- 
ered from  the  definition  that  persons  capable  of  commit- 
ting murder  must  bo  possessed  of  sound  memoiy  and 
discretion,  idiots,  lunatics  and  infants  being  incapable  of 
forming  a  criminal  intent,  are  therefore  exempt  as  in 
other  crimes.*  The  principal  element  of  murder  is  malice. 
Express  malice  is  defined  to  be  ''where  one  with  delib- 
erate mind  and  fonned  design  doth  kill  another."  Also 
where  one  without  a  previous  fonned  design  to  kill  an- 
other, but  with  an  intent  to  do  an  unlawful  act,  the 
probable  result  of  which  is  to  deprive  another  of  his  life.^ 
This  character  of  malice  is  evidenced  by  lying  in  wait, 
former  grudges,  antecedent  threats  and  ill  will."''     It  is, 

2— step.  Dig.  Cr.  L.  154.  G— Ex  parte  Wray,  30  Miys.  673. 

3—4  Blackstone  178,  9,  180,  181,  7—1    Halo    P.   C.   451;    4    Black- 

182,' 183.  stone  199; -3  Grconl.  Ecdf.  Ed.  130, 

4—4    Blackstone   105.  131,  132. 

5 — Sec  Earl  Hivcrs  caao,  10  Horg. 
St.  Tr.  478.  Chapter,  PcrHon  K\- 
unipt  from  CriiiicH,  thi.s  work. 


Homicide  483 

as  distinguished  from  implied  malice,  very  difficult  of 
definition.  From  its  nature  no  explicit  and  general  rule 
or  comprehension  of  facts  can  be  included  in  general 
definition.  It  must  be  left  to  the  circumstances  of  each 
particular  case.  It  is  generally  conceded  that  an  act  or 
a  combination  of  acts  and  circumstances  which  show  a 
premeditation  and  formed  design  to  take  life  is  upon 
express  malice.  Malice  is  that  condition  of  the  mind 
which  sanctions  the  commission  of  crime.  So  long  as 
this  condition  of  the  mind  is  not  evidenced  by  an  overt 
act,  the  law  cannot  reach  it.  It  has  been  defined  by  the 
courts  as  a  "  settled  intention  to  do  hami, "  *  ' '  a  design 
formed  of  doing  mischief  to  another, "  ®  ' '  means  any 
wicked  and  malicious  intention  of  the  mind, "  ^®  ' '  a 
wrongful  act  done  intentionally  and  without  just  cause 
or  excuse."  " 

§  530.  Malice  need  not  be  against  the  person  killed. 

The  malice  need  not  be  directed  against  the  person  killed. 
It  is  sufficient  if  the  act  which  results  in  death,  emanates 
from  a  mind  fatally  bent  upon  mischief  and  regardless 
of  social  duty.  This  if  A,  wantonly  and  recklessly,  and 
in  total  disregard  to  the  results  to  others,  shoots  into  a 
crowd  of  persons  on  the  street  and  kills  B,  it  is  murder, 
for  the  malice  is  presumed  from  the  nature  of  the  act. 
But  if  he  has  a  legal  right  to  carry  a  loaded  gun  upon 
the  street  and  by  the  careless  handling  it  is  discharged 
and  kills  B,  it  is  not  murder,  but  involuntaiy  manslaugh- 
ter, or  negligent  homicide,  according  to  the  circum- 
stances, and  the  degree  of  negligence.^^     Usually  there 

8— star  Chamber  cases,  1630  Pac.  Ill,  96  Am.  Dec.  196;   intention  to 

5.  kill  one  and  the  blow  falls  upon  an 

9 — Eeg  V.  Mawbridge,  Kely  119.  other,  murder.     See  Butler  v.  State, 

10— Eex  V.  Hovey,  2  B.  &  C.  268.  125  111.  641,  18  N.  E.  338,  8  A.  S. 

11— State  V.  Weimes,  66  Mo.  13 ;  R.  423,   1  L.  R.  A.  211;    Smith  v. 

Whereham  v.  State,  25  Ohio  St.  Com.,  19  Ky.  1073,  428  W.  1138; 
601;  Touts  V.  State,  8  Ohio  98.          -  Johnson  v.   State,   66. Ohio   St.   50, 

12— MePherson   v.    State,   22    Ga.  63  N.  E.  607y  90  A.  S.  R.  561,- and 

487;  Sparks  v.  Com.  (Ky.),  3  Bush.  note.     Adams  v.  State,  65  Ind.  565; 


484  Criminal  Law 

must  be  a  preconceived  and  a  formed  design  to  kill  an- 
other and  it  makes  no  difference  liow  the  design  was  car- 
ried into  effect,  the  killing  will  be  murder  whether  the 
intention  was  to  kill  a  particular  or  any  person.^^ 

§  531.  Presumptions  as  to  acts.  It  is  a  presumption  of 
law  that  all  persons  intend  the  probable  consequences  of 
their  acts.^*  Thus  implied  malice  is  a  conclusion  of  law 
deduced  from  fact.  Thus  the  use  of  a  deadly  weapon  is 
presumed  to  be  done  with  malice.  It  is  a  rebuttable  pre- 
sumption, however,  and  the  malice  is  to  be  presumed 
only  upon  all  the  circumstances.^^  This  character  of 
malice  is  discoverable  as  an  inference  drawn  from  the 
manner  and  the  means  by  which  death  is  produced.  Thus 
if  A,  upon  a  slight  or  inconsiderable  provocation,  used 
a  deadly  weapon,  malice  will  be  presumed  from  its  use, 
and  if  he  use  a  weapon  not  necessarily  deadly,  but  in  a 
cruel  and  unusual  manner,  malice  is  presumed  from  the 
manner  of  the  use,  and  in  both  instances  the  killing  is 
murder.  If  the  instrument  is  not  a  deadly  one  and  the 
same  is  not  used  in  a  cruel  and  brutish  manner,  death  re- 
sulting is  only  manslaughter.^® 

§  532.  Express  malice  how  proved.  Malice  is  only  dis- 
coverable tlirough  the  circumstances  indicating  the  in- 
tent of  the  act.    Express  malice  is  proved  and  presumed 

State  V.  Hardz,  47  la.  647,  29  Am.  16—3  Greenl.  Red.  Ed.  147 ;  Stat« 

Rep.   496;    State   v.    Vance,    17    la.  v.  John,  172  Mo.  220,  72  S.  W.  525, 

138;  State  v.  Jones,  78  Mo.  77,  47  95  A.  S.  R.  513;   State  v.  Jackson, 

Am.    Rep.    92;    Am.   &    Eng.    End.,  36   S.   C.   487,   15   S.   E.  550,  31   A. 

Vol.    9,    p.    589.  S.  R.  890;  Cupps  v.  State,  120  Wis. 

13— Com.  V.  Dunn,  58  Pa.  St.  9;  504,   97    N.   W.   210,    102   A.    S.   R. 

State  V.  Douglass,  28  W.  Va.  297;  996;  Cornwell  v.  State,  61  Tex.  App. 

Harris  v.  State,  8  Tex.  App.  90.  122,     134    S.    W.    221,    Ann.    Caa 

14 — Com.    V.    liaw^in.H,    3     Gray  1913  B  71;  Brown  v.  State,  83  Ala. 

463;    Erwin    v.    State,    29    Ohio    St.  33,  3  So.  857,  3  A.  S.  R.  685;  Gib- 

191.  son  V,  State,  89  Ala.   121,  8  So.  98, 

15— Com.     V.    Webster,     5    Cush.  18  A.  S.  R.  96. 
305;  Head  v.  State,  9  Med.  104. 


Homicide 


485 


upon  the  establishing  an  act  committed  with  a  sedate 
and  deliberate  mind.  Time  itself  is  not  an  essence  of  the 
malice,  since  if  the  act  is  committed  with  a  deliberation 
indicating  a  formed  intention  it  is  sufi&cient.  This  delib- 
eration may  be  fomied  in  an  instant  of  time.  Even  an 
act  committed  in  hot  blood  may  be  committed  in  such  a 
manner  that  it  will  show  a  deliberation  evidencing  malice. 
Thus  w^here  A  makes  an  inconsiderable  assault  upon  B, 
and  B  draws  his  sw^ord  and  runs  him  through,  the  act 
of  using  the  sword  indicates  the  malignity  and  deliber- 
ation of  the  act,  since  in  the  case  of  a  simple  assault  no 
necessity  arises  for  the  use  of  such  weapon.  Death  re- 
sulting in  such  case  would  be  murder."    AVhere  a  dan- 


17 — Express  malice  may  be  in- 
ferred by  the  proof  of  the  cool, 
calm  and  deliberate  and  circumspect 
deportment  and  bearing  of  a  party, 
■where  the  act  is  done  immediately 
prior  or  subsequent  thereto;  his  ap- 
parent freedom  from  passion  or  ex- 
citement; the  absence  of  any  ob- 
vious or  known  cause  to  disturb  his 
mind  or  to  arouse  his  passions;  the 
nature  and  character  of  each  act 
itself;  the  instrument  used  and  the 
manner  of  committing  the  act;  the 
declarations  of  the  party,  showing 
the  state  of  his  mind  and  the  mo- 
tives and  the  purposes  with  which 
he  acts;  and  all  other  facts  and 
circumstances  connected  with  the 
transaction  and  established  by  the 
evidence,  are  to  be  taken  into  con- 
sideration, in  determining  the  state 
of  his  mind,  at  the  time  the  de- 
termination to  take  life  was  formed. 
Malice  in  its  legal  sense  means  the 
intentional  doing  of  a  wrongful  act, 
without  legal  justification  or  excuse. 
Evans  v.  State,  6  Tex.  App.  513: 
"Malice  is  that  condition  of  mind 
which  shows  a  heart  regardless  of 
social  duty,  and   fatally  bent  upon 


mischief,  the  existence  of  which  is 
inferred  from  acts  committed  or 
words  spoken."  Harris  v.  State, 
8  Tex.  App.  90;  More  v.  State,  15 
Tex.  App.  1. 

Express  malice  is  malice  in  fact, 
the  actual  evidence  of  which  is  a 
question  for  the  jury  to  determine 
and  consists  of  an  actual  and  de- 
liberate, intentional,  unlawfully  to 
take  the  life  of  another  person  or 
to  do  him  some  bodily  harm.  A 
formed  design  not  merely  to  take 
away  the  life  of  the  defendant,  but 
includes  an  intent  to  do  an  unlaw- 
ful act,  which  may  probably  end  in 
destroying  life.  Cotton  v.  State,  32 
Tex.  614.  In  the  case  the  court 
says :  "In  express  malice,  the  ex- 
ternal circumstances,  the  acts  and 
the  conduct  of  the  accused,  at  the 
time,  before  and  subsequent  to  the 
killing  indicate  a  cool  and  deliber- 
ate mind  and  formed  design  to  kill. 
If  so,  there  is  express  malice.  There 
is  no  certain  and  definite  time  nec- 
essary to  intervene  between  the 
formed  design  to  kill  and  the  fatal 
blow."  Lewis  v.  State,  15  Tex. 
App.  647;   Com.  v.  Drumm,  58  Pa. 


486 


Criminal  Law 


gerous  or  a  deadly  weapon  is  used  without  any  specific 
intent  to  kill,  death  ensuing  is  presumed  to  be  upon  malice 
implied  from  the  weapon  used.^^ 

§  533.  Presumption  from  proof  of  corpus  delicti.  When 
an  unlawful  killing — the  corpus  delicti — is  shown,  it  is 
presumed  to  be  murder,  until  the  proof  shows  to  the  con- 
trary. The  unlawful  killing  being  traced  to  the  defend- 
ant, the  burden  of  proof  is  upon  him  to  show  that  it  was 
upon  extenuation  or  excuse.  This  appears  to  be  the  rule 
by  a  weight  of  the  authorities.^^  But  there  is  a  disposi- 
tion in  some  of  the  more  recent  authorities  to  depart 
from  this  rule.  The  states  of  New  York  and  Iowa  appear 
to  have  taken  the  initiative  in  dissenting.     But  in  the 


St.  9;  McAdams  v.  State,  25  Ark. 
405,  69  N.  C.  267,  26  Ark.  334,  12 
Ohio  43,  28  Ga.  594,  31  Pa.  St. 
]98,  65  111.  17;  U.  S.  v.  Cornell,  2 
Mason  88,  N.  Y.  117,  32  Ver.  491, 
10  Tex.  479. 

18 — 4  Blackstone  200,  9  Mete. 
103,  3  Greenl.  145;  Com.  v.  Hop- 
kins, 3  Gray  463;  State  v.  Mc- 
Donald, 32  Vt.  491.  "That  the  use 
of  a  dead  weapon  is  a  prima  facie 
evidence  of  malice;  because  a  man 
must  be  taken  to  intend  the  neces- 
sary and  usual  consequences  of  his 
acts.  To  shoot,  stab  or  strike  ■with 
a  bludgeon  indicates  a  purpose  to 
take  life ;  but  if  one  or  the  other 
be  employed  to  disable  an  adversary 
in  the  very  act  of  making  a  mur- 
derous assault,  then  the  presump- 
tion is  overcome;  where  death  en- 
sues from  a  shot  gun  wound  or  a 
stab  or  other  violent  means,  but  no 
witness  saw  the  act  done  and  the 
circumstances  are  unknown  and  un- 
proved by  the  state ;  here  the  mode 
of  tlie  killing  raises  a  strong  pre 
sumj)tion  of  malice,  if  he  offers  no 
cx|)lanation    of    the    killing;    if    he 


fails  to  show  that  it  was  on  account 
of  necessity,  done.  Se  defendendo, 
the  inference  of  malice  from  the  use 
remains.  The  fact  that  the  law 
allows  a  man  to  carry  a  pistol  or 
other  deadly  weapon  does  in  no  case 
excuse  him  from  an  unlawful  use  of 
it."  Brown  v.  State,  83  Ala.  33, 
3  So.  857,  3  A.  S.  R.  685;  Delk  v. 
State,  135  Ga.  312,  69  S.  E.  541, 
Am.  Cas.  1912  A  105;  State  v.  Do- 
herty,  72  Vt.  381,  48  Atl.  658,  82 
A.  S.  R.  951 ;  State  v.  Legg,  50  W. 
Va.  315,  53  S.  E.  545,  3  L.  R.  A. 
(N.    S.)    1152. 

19— Mann  v.  State,  124  Ga.  760, 
.53  S.  E.  324,  4  L.  R.  A.  (N.  S.) 
934;  State  v.  Moore,  25  la.  128,  95 
Anu  Dec.  776;  State  v.  Landgraf, 
95  Mo.  97,  8  S.  W.  237,  6  A.  H.  R. 
26;  State  v.  Alexander,  30  S.  C.  74, 
8  S.  E.  440,  14  A.  S.  R.  879;  Coffee 
v.  State,  3  Yerg.  (Tenn.)  283,  24 
Am.  Doc.  570;  I'i'oi)le  v.  Schrayver, 
42  N.  V.  1,  1  Am.  Hep.  480;  People 
V.  McLeail,  1  Hill.  436;  People  v. 
Cotteral,  18  .lohns.  120;  2  Starkie's 
Ev..    489. 


Homicide  487 

state  of  New  York  the  authorities  are  conflicting  and  the 
bulk  as  well  as  the  weight  of  authorities  there  sustains 
the  nile.  In  those  cases  wiiere  there  are  no  witnesses  and 
the  mere  fact  of  a  killing  is  proved,  it  appears  to  be  the 
tendency  of  modern  authority  to  acquit,  unless  the  gov- 
ernment by  other  evidence  can  establish  independently 
of  the  implication  of  malice  by  the  mere  fact  of  the  un- 
lawful killing,  the  malicious  intent  of  the  defendant.^ 

§  534.  Presumption  as  to  continuance  of  malice.  Malice 
having  been  shown  is  presumed  to  continue  up  to  and 
including  the  fatal  act.^^  But  if  there  are  circumstances 
showing  the  act  to  have  been  upon  a  fresh  provocation  it 
will  relieve  the  act  of  this  presumption.  If,  however,  the 
defendant  resorts  to  any  subterfuge  to  induce  the  de- 
ceased to  provoke  the  conflict,  in  order  that  he  may  have 
occasion  to  kill  him;  this  ^vill  sustain  the  presumption 
that  the  killing  was  done  upon  the  old  malice.  Thus  if 
A  is  traveling  a  road  he  has  a  right  to  travel,  meets  B 
against  whom  he  has  a  ginidge  and  upon  demonstrations 
made  by  B  that  he  intends  to  bring  on  a  conflict  and  A, 
acting  upon  the  appearances  of  danger,  kills  him,  this 
rebuts  the  presumption  of  the  former  malice.^*^ 

§  535.  Ignorance  and  negligence  of  physician.  Where 
a  w^ound  is  inflicted  in  malice  and  from  the  nature  of  it, 

20 — Stokes   V.    People,    53    N.   Y.  that   the  killing  was  the   direct   re- 

— ;  Tweedy  v.  State,  5  la.  433.  suit  of  the  second  provocation  and 

21 — Stewart  v.  State,  1  Ohio  66;  that  the  presumjjtion  was  overcome 

30    Curwood    ed.      In    the    case    of  and  that  the  killing  was  presumed 

Copeland  v.  State,  7  Humph.  429;  to   be   upon   the   fresh   provocation, 

the  court  holds  that  not  withstand-  '      22— Lingo  v.  State,  29   Ga.  470; 

ing   there   had   been   a  grudge   and  Hays  v.  State,  23  Mo.  287;  Adams 

bad   feelings   between   the   deceased  v.    State,   47   111.   376;    Gongales   v. 

and  the  defendant  for  many  years,  State,  30   Tex.  203,   16  S.   W.  978; 

but    at    the    time    of    the    homicide  State  v.  Johnson,  47  N.  C.  247,  64 

there    was   a    fresh   provocation   of-  Am.  Dec.  742;  Bolzer  v.  People,  129 

fered  by  the  deceased  and  since  the  111.   112,  21  N.  E.  818,  4  L.  R.  A. 

defendant  had  acted  at  the  time  this  579. 
fresh   provocation   had    been    given, 


488 


Criminal,  Law 


it  is  reasonably  calculated  to  produce  death,  the  igno- 
rance or  negligence  of  the  attending  physician  in  treat- 
ing the  wound,  will  not  relieve  the  defendant  from  the 
consequences  of  the  act.  Nor  does  the  negligent  actions 
of  the  deceased,  after  the  infliction  of  the  wound  and  the 
time  of  his  death.  This  is  true  even  if  the  negligence  of 
the  deceased  and  the  negligence  and  unskillfulness  of  the 
physician  contributed  directly  to  the  death.^*  But  where 
the  wound  is  not  necessarily  fatal,  the  gross  negligence 
and  mismanagement  of  the  physician  attending  on  the 


23—33  la.  270,  3  Greenl.  5  Ed. 
139  and  note.  In  the  case  of  Mor- 
gan V.  State,  16  Tex.  App.  593,  the 
court  charged  the  jury  as  follows 
and  the  same  was  adopted  by  the 
Court   of  Criminal   Appeals. 

*  *  If  the  testimony  should  show 
that  the  wound  was  inflicted  by  the 
defendant  and  before  the  death  of 
the  said  Henderson,  the  physician 
in  mistake  as  to  the  nature  of  the 
injury  operated  upon  the  back  part 
of  the  head  of  deceased,  and  in  so 
operating  inflicted  injuries  to  the 
head  and  brain  of  the  deceased,  and 
that  the  death  of  deceased  on  the 
24th  day  of  January,  from  the 
effects  of  the  wounds  inflicted  by 
the  defendant  and  the  physician, 
then  the  jury  must  be  satisfied  from 
the  testunony  that  the  wound  in- 
flicted by  the  defendant  was  clearly 
suflicient  cause  of  the  death  without 
the  concurrence  of  that  of  the  phy- 
sician, and  if  the  jury  so  find  they 
will  find  the  defendant  guilty.  But 
if  the  death  of  tlie  deceased  is 
sliown  to  have  been  caused  by  the 
joint  effect  of  the  wounds  and  that 
inflicted  l)y  tlie  physician  and  it 
should  not  be  made  to  clearly  and 
satisfactorily       appear       tliat       the 


wound  inflicted  by  the  defendant 
was  sufficiently  the  cause  of  the 
death  of  Henderson,  then  the  jury 
should  convict  the  defendant.  If 
the  jury  find  from  the  testimony 
that  the  defendant  at  the  time  and 
the  place  did  with  a  knife  inflict  a 
wound  in  the  head  of  the  said  Hen- 
derson as  charged,  and  they  further 
find  that  there  had  been  gross  neg- 
ligence or  manifestly  improper 
treatment  of  said  Henderson  by  any 
one  or  more  of  the  physicians  be- 
tween the  infliction  of  the  wound 
and  the  death  which  improper  treat- 
ment or  negligence,  if  any,  caused 
the  death  of  the  said  Henderson, 
then  the  jury  cannot  find  the  de- 
fendant guilty.  If  the  wound  was 
not  in  itself  mortal,  and  Henderson 
died  in  consequence  of  the  improper 
treatment  by  his  pliysicians,  and 
not  of  tiie  wound,  then  the  jury 
find  tlie  defendant  not  guilty. 
Sharp  V.  State,  51  Ark.  147,  10  S. 
W.  228,  14  A.  S.  R.  27;  Hamblin 
V.  State,  81  Neb.  148,  115  N.  W. 
850,  16  Ann.  Cas.  569;  People  v. 
Kane,  213  N.  Y.  260,  107  N.  E. 
(55;-),  L.  R.  A.  1915  F,  607;  Holly- 
wood V.  State,  19  Wyo.  493,  120 
Puc.    471,    Ann.    Cas.    1913  E,    218. 


Homicide  489 

deceased  will  acquit  the  defendant  if  it  is  clearly  shown 
that  the  deceased  died  from  the  effects  of  such  ignorance 
and  gross  mismanagement  and  negligence.^ 

§  536.  Presumption  as  to  first  wound.  If  a  fatal  wound 
is  inflicted  by  A  and  a  subsequent  one  by  B,  the  tendency 
of  which  is  to  accelerate  the  death,  the  homicide  is  pre- 
sumed to  be  upon  the  first  wound.  If,  however,  B  kills 
the  deceased  by  wound  instantly,  independently  of  the 
wound  inflicted  by  A,  A  is  not  guilty.^*  If  A  kills  B,  who 
is  sick,  and  who  in  the  course  of  events  would  have  died 
of  such  sickness  in  a  short  time,  A  is  guilty  of  murder.^^ 
But  where  A  by  his  own  unlawful  conduct  caused  another 
to  kill  an  innocent  person,  A  cannot  be  held  for  the  kill- 
ing; as  where  an  officer  kills  a  person  who  is  not  engaged 
in  a  riot  in  attempting  to  quell  the  riot,  the  rioters  are  not 
guilty  of  the  killing."  But  according  to  Hale, ' '  a  husband 
gave  poison  to  his  wife,  intending  that  she  should  take  it, 
and  she  not  knowing  what  it  was,  gave  it  to  their  child  in 
his  presence  and  against  the  consent  of  the  husband,  and 
the  child  took  it  and  died,  this  was  murder. "  ^^  It  ap- 
pears, however,  upon  principle  if  the  unlawful  act  is  a 
felony  and  it  becomes  necessary  to  kill  the  perpetrator  in 
order  to  prevent  it,  and  by  some  unforeseen  result  an 
innocent  person  is  killed,  it  would  be  justifiable  or  excus- 
able homicide  in  the  party  killing,  for  the  law  places  the 
duty  upon  us  to  prevent  a  known  felony  about  to  be  com- 
mitted in  our  presence. 

24— Com.   V.   Cauffman,   10  Bush.  Lewis,  124  Cal.  551,  67  Pac.  470,  45 

495;   McBeth  v.  State,  50  Miss.  81.  L.  K.  A.  783. 

Overruled    by    Crum    v.    State,    64  26— State  v.  Maren,  2  Ala.  275; 

Miss.  1,  60  Am.  Dee.  44;  Morgan  v.  Com.  v.  Fox,  7  Gray  585;  3  Greenl. 

State,  16  Tex.  App.  593,  §  259  this  141. 

work.  27 — Bartlier  v.    People,   5   N.   E. 

25—9    Am.    &    Eng.    End.    536;  (111.)    338:    Com.    v.    Campbell,    89 

State  V.  Wood,  53  Vt.  560;  Walter  Mass.  541,  83  Am.  Dec.  705,  9  Am. 

V.  State,  116  Ga.  537,  42  S.  E.  787,  &  Eng.  End.  536. 

67    L.    E.    A.    426.      See    People   v.  28—1  Hale  P.  C.  436. 


490  Criminal  Law 

§  537.  Murder  by  other  than  physical  means.  There 
seems  to  be  some  doubt  whether  an  act  or  a  series  of 
acts  not  causing  any  physical  injury,  such  as  an  act 
or  a  series  of  acts,  declarations  or  statements  which 
produce  death,  operating  only  upon  the  mental  facul- 
ties or  susceptibilities,  are  not  too  remote  and  in- 
definite to  subject  the  perpetrators  to  the  penalties  of 
the  law.  There  appears,  to  our  mind,  no  difference  in 
principle,  whether  the  death  is  produced  by  one  means 
or  another  if  the  facts  show  a  malice,  or  circumstances 
from  which  malice  may  be  inferred.  Why,  if  A  knowing 
the  peculiar  nervous  condition  of  B,  so  press  upon  his 
mind  and  nervous  sensibilities  as  to  produce  his  death 
or  cause  him  to  do  an  act  which  results  in  his  death, 
would  not  this  be  murder  as  well  as  if  he  had  given 
him  a  fatal  blow  with  a  bludgeon?*^  Of  course,  if  A 
coerce  B  as  to  take  from  him  the  sustenance  of  life 
this  would  be  murder  if  he  die  from  the  effects  of  it. 
If  a  woman  be  quick  with  child,  and  A  knowing  her 
condition,  maliciously  frighten  her  so  as  to  produce 
miscarriage,  whereby  she  dies,  would  not  this  be  murder? 
We  conceive  no  difference  between  these  cases  and  others 
where  there  is  a  settled  malice  or  intention  to  harm.*" 

§  538.  Person  must  be  alive.  The  person  upon  whom 
a  wound  is  inflicted  must  be  alive  at  the  time  the  blow  is 
given.  So  if  the  death  take  place  within  a  year  and  a 
day  from  the  original  wound  is  taken  to  have  been  the 
effect  of  such  wound,  but  if  occurring  after  that  dale 
it  is  presumed  to  be  upon  other  cause,  and  when  tliis  is 

29— Stephen 'a    Dig.    Cr.    L.    157;  A    perHOii    may    ho    tiuilt.v    tlironph 

Com.  V.  Spotford,  6G  Mass.  176.  non-feasance.      Thus    a    f'aihirc    lo 

30 — "So    if    one    under    a    well  supply   a  child   with    food,   and   the 

founded    apprehension    of    personal  child    dies,   when    it   is   his   duty   to 

violence,   docs   an   act  which   causes  do     so."       Harris'     Cr.     L.     1M; 

his    death,    as    for    instance    jumps  Ilendrickson  v.  Com.,  8.'5  Ky.  281,  .'5 

out  of  a   window  he   who   threatens  S.   W.   KiH,   7   A.   S.    H.  .^jOC). 
is  answerable  for  the  consequences. 


Homicide  491 

shown  the  defendant  must  be  discharged.^^  In  the  case 
of  infanticide  it  is  sufficient  to  show  that  the  child  had 
breathed  at  the  time  of  the  injuiy.  It  is  not  necessary 
that  the  umbilical  cord  be  severed,  but  it  must  be  shown 
that  the  child  had  been  completely  expelled  from  the 
mother,  alive.  It  seems  that  it  is  not  necessary  to  show 
that  the  child  breathed  at  the  time  of  the  injury  unless 
it  clearly  appears  that  it  w^as  dead,  for  many  children  do 
not  breathe  immediately  after  being  born  and  expelled 
from  the  mother.^^ 

§  539.  Dueling".  Dueling  properly  is  another  form  of 
the  law  relating  to  homicide.  All  killing  under  agree- 
ments to  fight  a  duel  is  nothing  but  murder.  The  custom 
of  dueling  has  become  obsolete,  and  the  practice  in  our 
country  has  fallen  into  disuse,  for  the  moral  susceptibili- 
ties of  the  nation  has  revolted  against  the  bloody  custom. 
Sir  William  Blackstone  has  it  that  no  man  has  a  right 
to  wanton  with  his  life,  nor  has  he  right  to  agree  with 
another  to  fight  with  deadly  weapons.  The  consent  to  an 
assault  as  a  defense  is  applicable  only  to  those  of  slight 

31 — 4  Blackstone  198;  State  v.  actual  and  complete  birth,  the  par- 
Williams,  2  Tex.  App.  271 ;  State  turition  must  be  complete,  and  the 
V.  Cooper,  22  N.  J.  L.  52,  57  Am.  body  of  the  child  must  be  expelled 
Dec.  214;  Harris,  28  Tex.  App.  308,  from  the  mother,  and  it  must  be 
12  S.  W.  1102,  10  A.  S.  E.  837;  alive,  having  an  independent  ex- 
State  V.  Winthrop,  43  la.  519,  22  istence.  So  that  destruction  of  vi- 
Am.   Eep.    527,    §    259   this   vrork.  tality  in   a  child   before  it  is  coni- 

32 — Wallace    v.    State,.    10    Tex.  pletely    born,    which    causes    death 

App.    255;    State    v.    ,    7    Tex.  after    birth,    is    not    homicide    how- 

App.   570,     In  the  case  of  Wallace  ever    culpable    or    under    whatever 

V.    State,    10    Tex.    App.    255,    the  circumstances    or   with    what   intent 

court   says :   * '  That  homicide  is  de-  done.      But   if   the   child   be   wholly 

fined    as    the    destruction     of    the  born  alive,  however  frail  it  may  be, 

life  of  one  human  being  by  the  act,  or  however  near  extinction  from  any 

agency    or    the    culpable    omission  cause,  and  another  person  inflict  up- 

of  another.     The  person  upon  whom  on  it  any  violence,  intentionally,  by 

the  homicide  is  alleged  to  have  been  means   or   manner   ordinarily   calcu- 

committed  must  be  in  existence  by  lated    to    cause   death,    which    cause 

actual  and  complete  birth.    In  order  contributes    or    hastens    its    death,, 

that    a    child    be    in    existence,  by  such   person   is  guilty   of  homicide. 


492  Criminal  Law 

injuries,  inflicted  npon  another,  which  do  him  a  small 
hurt,  and  not  to  those  graver  kind,  which  may  be  reason- 
ably calculated  to  result  in  death,  or  which  may  cause 
a  severe  bodily  hann. 

One  court  says:  "But  deliberate  dueling,  if  death 
ensue,  however  fairly  the  combat  may  be  conducted,  is  in 
the  eye  of  the  law  murder.  The  false  principle  of  honor, 
the  law  regards  as  furnishing  no  excuse  for  homicide. 
He  who  seeketh  the  blood  of  another  in  compliance  with 
such  punctilios,  acts  in  open  defiance  of  the  laws  of  God 
and  the  state  and  with  that  wicked  purpose  which  is 
termed  "malice  aforethought."  ^^  Another:  "We  do  not 
think  that  if  one  man  invites  another  to  mortal  combat 
and  that  he  who  gives  the  invitation  being  already  armed 
can  justifiably  shoot  the  other  before  he  anus  himself. 
There  is  far  less  excuse  or  justification  in  such  circum- 
stances than  when  two  on  mutual  agreement  go  out  and 
fight  with  deadly  weapons;  in  this  last  case  it  is  murder 
if  either  slay  the  other,  for  the  plain  reason  that  there 
is  premeditation  in  each  to  kill  the  other;  a  fortiori, 
would  it  not  be  murder  in  him  who  sent  the  challenge 
and  who  slays  his  adversaiy  before  the  combat  begins.'* 

§  540.  Definition.  A  duel  is  the  fighting  together  of 
two  persons,  by  agreement,  and  wlio  light  with  deadly 
weapons."  It  is  termed  in  common  ])nrlance  "the  code  of 
honor,"  and  is  conducted  under  certain  terms  and  agree- 
ments, which  is  supposed  to  give  eacli  combatant  an  equal 
show  and  a  fair  figlit.  The  weapon  must  ])e  a  deadly  one. 
There  must  be  a  mutual  agreement  to  light,  and  in  this 
respect  is  similai-  to  the  offense  of  "affray." 

33— state  v.  Hill,  4  D.  &  B.  401.  S.   W.    1130,    123    A.   R.   R.   258,   14 

34— State  v.  Evans,  44  Mias.  762;  Am.  Cas.  990,  15  L.   R.   A.    (N.  S.) 

People    V.    Enoch,    13    Wend.     (N.  988. 
•Y.)    159,    27    Am.    Doc.    192;    Tur-  35—4   Black.   202;    1   llalc   P.   C. 

ner    v.    State,    119    Tenn.    663,    108  450. 


Homicide  493 

of  the  degeees  of  mueder 

§  541.  No  degrees  of  murder  at  common  law.    At  the 
common  law  there  were  no  degrees  of  murder.    All  un- 
lawful  homicide   was   either  murder   or  manslaughter. 
Homicide    committed   upon   either   express   or   implied 
malice,  was  punishable  with  death.    There  were  no  dis- 
tinctions as  to  the  degree  of  punishment.^®    Under  the 
statutes  of  most  of  our  states,  murder  has  been  divided 
into  two  or  more  degrees.    Usually  homicide  committed 
upon  express  malice  is  murder  of  the  first  degree,  and  by 
implied  malice  murder  of  the  second  degree.     Murder 
of  the  first  degree  is  characterized  by  premeditation  and 
deliberation,  not  accompanied  by  circumstances  of  miti- 
gation or  extenuation.*''^     This  malice,  necessary  to  con- 
stitute murder  in  the  first  degree  may  be  inferred  from 
the  circumstances  of  the  case.**    Under  some  of  the  stat- 
utes the  killing  must  have  been  the  result  of  a  specific 
intent  to  take  life.   Such  we  believe  to  be  the  law  in  the 
states  of  Texas,  Delaware,  Iowa,  Maryland,  Michigan, 
Minnesota,  Nevada,  New  Hampshire,  Tennessee,  Ohio,  In- 
diana, Illinois  and  perhaps  some  others.    But  where  the 
killing  is  committed  in  the  perpetration  or  in  the  attempt 
to  perpetrate  the  crimes  of  rape,  burglary,  robbery  and 
arson,  a  specific  intent  is  not  required  to  be  shown  by 
other  evidence  that  the  mere  fact  of  the  killing  having 
taken  place  while  in  the  perpetration  or  in  the  attempt 
to  perpetrate  the  crimes  mentioned.     The  fact  that  the 
killing  took  place  while  committing  any  of  these  crimes 
is  by  the  statute  made  sufficient  to  create  the  express 
malice   essential  to  murder  of  the  first  degree.     Just 
what  degree  of  "premeditation  and  deliberation"  neces- 

36—4  Black.  202;   1  Hale  P.   C.  38— Hicks  v.  State,  6  So.  441,  25 

'  450.  Fla.  535;  Nelson  v.  State,  101  Mo. 

37— Copeland  v.  State,  7  Humph.  464,  14  S.  W.  712;  Jenkins  v.  State, 

479;    People  v.   Howe,  44  Cal.   96;  41    Tex.    128;    Gonzallis    v.    State, 

Felto  V.  U.  S.,  96  U.  S.  699;   Peo-  16    S.   W.    12,   Tex.    App.    15.      See 

pl'^  V.  Fain,  25  Cal.  361.  10   N.  E.   745. 


494  Crimixal  Law 

sary  to  constitute  murder  in  the  first  degree  does  not  ap- 
pear to  be  well  settled.  The  statutes  being  of  different 
phraseology,  there  is  not  a  unifonnity  of  constniction.^^ 
Some  holding  that  all  murder  upon  express  malice  is 
murder  in  the  first  degree  and  all  murder  upon  implied 
malice  of  the  second  degree.  And  this  is  the  general 
rule  but  there  are  cases  of  implied  malice  showing  great 
malignity  and  depravity,  deliberation  and  premeditation. 

§  542.  Murder  by  lying  in  wait,  poison,  etc.  It  is  a 
rule  of  law  that  when  a  person  does  a  thing  he  is  held 
to  have  intended  the  ordinarj^  and  reasonable  results  of 
his  action,  and  when  this  stands  alone  without  explana- 
tion, he  is  conclusively  presumed  to  have  intended  to  do 
the  actual  thing  that  occurred.*®  In  keeping  with  this, 
one  who  lies  in  wait  for  another  and  kills  him,  he  is  re- 
garded by  the  common  law  to  have  done  the  killing  with 
express  malice.  So  if  the  proof  shows  that  he  did  in  fact 
lie  in  wait,  this  shows  that  he  possessed  that  degree  of 
deliberation  necessary  to  constitute  the  malice.  So  in 
response  to  this  principle  of  the  common  law,  the  stat- 
utes of  the  states  have  provided  in  a  general  way  to 
make  that  murder  in  the  first  degree  which  was  murder 
upon  express  malice  by  the  common  law.  We  find  some 
authorities,  however,  holding  that  to  have  committed  a 
killing  of  a  human  being  in  the  perpetration  or  the  at- 
tempted perpetration  of  the  crimes  of  arson,  burglary, 
rape  and  robbery,  or  where  the  killing  was  while  lying 
in  wait;  by  poison  or  starving  or  torture,  was  murder  in 
the  first  degree,  whether  the  accused  possessed  the  actual 

3C)_j,;„,^,    V.    State,    4    So.    Ecp.  ice;    lianders   v.   State,   1    Tex.   462. 

I<t3,  raliiiore  v.  State,  29  Ark.  248;  Tliis  case   in  the  main   is  overruled 

Moynahan  v.  State,  7U  Ind.  12G,  30  in   tlie   ease   of   Tooney   v.   State,   f) 

Am'.   Rep.    178;    Buel   v.   Tcople,   78  Tex.  Apj).   188;   Maden  v.  State,  10* 

N.  Y.  492,  34  Am.  Rep.  Clfj ;   State  Kans.  3r)() ;  Farris  v.  Com.,  14  Bush. 

V.   King,  24  Utah  482,  68  Pac.  418,  372;    Maylier    v.    People,    10    Mich. 

91    A.   8.  R.   808.  212,   81    Am.   Dec.   781,    §    253    this 

40 — 2  Starkio  cv.  073,  title   ni.-il  work. 


Homicide  495 

malice  necessary  to  constitute  the  crime  or  not,  i.  e.,  pos- 
sessed of  express  malice.  The  authorities  are  conflict- 
ing, but  the  weight  appears  to  be  with  the  proposition 
that  all  murder  committed  while  attempting  or  perpe- 
trating robbery,  arson  or  rape,  or  all  murder  committed' 
while  lying  in  wait,  or  by  poison,  is  murder  of  the  first 
degree,  without  showing  the  intent  or  the  malice  with 
which  the  acts  are  committed.*^  There  is  authority  for 
the  opinion  that  the  government  is  required  to  prove 
the  malice  and  the  intent  in  cases  of  murder  by  poison- 
ing and  by  lying  in  wait.  The  difference  in  the  cases 
perhaps  is  due  to  the  difference  in  the  phraseology 
of  the  statutes.  Most  of  the  statutes  we  believe  use 
the  phrase  *'all  murder  committed  while  lying  in 
wait,  etc.,"  in  lieu  of  ''all  homicide  while  lying  in 
wait."  The  opinion  seems  to  prevail  that  the  legislature 
by  using  the  phrase  "all  murder,"  etc.,  did  not  intend 
and  did  not  in  fact  change  the  common  law,  so  as  to 
require  less  or  greater  proof  than  by  the  common  law,  in 
establishing  murder.  The  state  of  Pennsylvania  appears 
to  have  enacted  one  of  the  first  statutes  declaring  that 
all  murder  committed  while  lying  in  wait  as  murder  in 
the  first  degree.  The  statutes  of  Ohio  provides  that 
' '  whoever  purposely  and  either  of  deliberate  and  premed- 
itated malice  or  by  the  means  of  poison,  or  in  the  per- 
petration or  in  attempting  to  perpetrate  any  rape,  arson, 
robbeiy  or  burglary  kills  another  is  guilty  of  murder 
of  the  first  degree."  Under  this  statute  it  has  been  held 
that  an  intent  to  kill  is  essential.*^  This  statute  employs 
the  phrase  "kills  another." 

"If  any  person  of  sound  mind  shall  purposely  and 
with  premeditated  malice,  or  in  the  perpetration  or  at- 
tempt to  perpetrate  any  rape,  arson,  robbeiy  or  burglaiy, 
or  by  administering  poison  or  causing  the  same  to  be* 

41— Bethelheinier     v.     State,     54  42— Fouts  v.  State,  8  Ohio  St.  98 

Ind.    128;    Fouts   v.    State,    8   Ohio 
St.  98.  '■ 


496  Ckiminal  Law 

done,  kill  any  human  being,  shall  be  deemed  to  be  guilty 
of  murder  in  the  first  degree."  Under  this  statute  it  has 
been  held  that  an  intent  to  kill  is  not  necessary.*^  So 
under  the  provision  of  the  criminal  code  of  the  state  of 
Texas:  "All  murder  committed  by  poisoning,  standng, 
torture  or  with  express  malice  or  committed  in  the  per- 
petration or  in  the  attempt  at  perpetration  of  arson, 
rape,  robbeiy  or  burglary,  is  murder  of  the  first 
degree."  The  court  construing  this  statute,  says 
that  "murder  in  the  first  degTee  then  is  constituted, 
when  the  specific  intention  is  to  take  life  of  the  deceased, 
or  to  do  him  some  serious  bodily  harm,  the  doing  of 
which  subsequently  results  in  his  death.  Without  such 
intention  malice  aforethought  is  wanting  and  if  death 
ensues  whether  by  poison  or  other  means,  it  is  not  mur- 
der in  the  first  degree.  But  if  malice  aforethought  is 
shown  to  exist  and  the  means  be  poison,  then  the  killing 
becomes  ipso  facto  murder  in  the  first  degree."**  The 
most  that  maj^  be  said  is  that  where  the  statute  employs 
the  phrase  "all  murder,  etc.,"  and  other  similar  phrases, 
then  the  modern  doctrine  or  at  least  the  tendency  of  the 
courts  is  that  it  is  as  murder  at  common  law  and  must 
be  so  construed." 

§  543.  Specific  intent  to  kill  necessary,  when.  In  some 
of  the  states  a  specific  intent  to  kill  being  necessary  to 
constitute  murder  in  the  first  degree  a  homicide  commit- 
ted of  a  person  other  than  the  one  intended  to  be  killed, 
is  murder  in  the  second  degree  only;  this  because  that 
express  malice  is  essential  to  murder  in  the  first  degree.*® 

43 — Stockston    v.    State,    7    Ind.  Am.  End.,  vol.  9,  p.  548,  and  note. 

326.  Cupps  V.  State,  120  Wis.  504,  97  N. 

44— Tooney  v.  State,  5  Tex.  App.  W.  210,  102  A.  S.  R.  990;   State  v. 

163.  Wells,  Gl   In.  620,  17  N.  W.  90,  47 

45— State  V.  Leak,  80  N.  C.  403;  Am.  Kep.  822;  Dubney  v.  State,  113 

State  V.  W.'iKKoncr,  78  Mo.  644,  47  Ala.  38,  21  So.  211,  59  A.  S.  K.  92.' 

Am.  Rep.  131;  State  v.  Bottoms,  10  40— Mu.sick  v.  State,  21  Tex.  App. 

Ilimil.li.     (Teiinj      103;      Kng.     and  69;     Bnrfc.n    v.    State,     10    Humph. 


Homicide  497 

A  previous  formed  intent  to  kill  must  be  established  in 
order  to  authorize  a  conviction  of  murder  in  the  first 
degree,  except  murder  committed  while  in  the  perpetra- 
tion or  the  attempted  pei'petration  of  rape,  arson,  rob- 
bery and  burglary;  yet  in  some  states  it  appears  that  in 
intent  to  inflict  serious  bodily  hanii  and  death  result  as  a 
consequence,  the  act  being  malignant  and  deliberate,  is 
murder  in  the  first  degree.*''^ 

§  544.  Under  federal  statutes  no  degrees.  Formerly 
degrees  of  murder  were  applicable  to  the  states  only,  the 
statutes  of  the  United  States  making  no  distinction,  and 
adopted  the  common  law  subdivision  of  this  crime,  mur- 
der and  manslaughter;  but  by  Sec.  273  of  the  United 
States  Criminal  Code,  different  degrees  are  provided  for. 
As  to  murder  in  the  second  degree,  it  may  be  generally 
taken  that  the  statutes  of  the  various  states  make  that 
murder  in  the  second  degree,  in  those  cases  where  the 
killing  is  accompanied  with  circumstances  of  mitigation 
and  extenuation,  which  would  not  place  the  homicide 
within  the  rules  of  the  law  covering  manslaughter.  It 
may  be  taken  to  cover  those  cases  where  there  is  no  well 
defined  purpose  to  take  life,  but  under  circumstances 
from  which  malice  may  be  inferred,  or  where  the  purpose 
to  take  life  may  be  from  such  circumstance  as  not  to 
attribute  to  the  accused  a  deliberate  and  formed  to  de- 
sign to  take  life,  upon  cool  and  dispassionate  reflection. 
As  where  a  person  in  the  midst  of  a  conflict  forais  the 
design  to  kill  his  opponent,  and  immediately  executes  his 
design.  It  is  impossible  to  deduce  a  rule  that  may  be 
followed  in  all  cases,  and  the  most  that  can  be  said  is 
that  each  case  must  be  governed  by  its  particular  cir- 
cumstances." 

(Tenn.)    103;   Johnson  v.   State,  30  48— Harris  v.  State,  36  Ark.  127; 

Tex.  App.  748.  Musick  v.  State,  21  Tex.  App.  69; 

47— State  v.  O'Hara,  92  Mo.  59;  Hill   v.    State,    11    Tex.    App.    456; 

Sweeney  v.  State,   25  Ark.   585.  State  v.  Rcbinson,  73  Mo.  306.     See 

C.  L.— 32 


498  Criminal  Law 

of  manslaughter 

§  545.  Definition  of.  ]\ranslaiighter  is  where  the  killing 
is  committed  in  hot  blood,  sudden  passion,  and  without 
justification  or  excuse,  or  is  the  unforeseen  result  of  an 
unlawful  act,  without  malice  either  express  or  implied.^^ 
At  the  common  law  any  unlawful  killing,  malice  being 
absent,  is  manslaughter.  At  the  common  law  an  unlawful 
killing  was  divided  into  classes:  Murder  and  man- 
slaughter, and  all  other  homicide  was  either  justifiable 
or  excusable  according  to  the  circumstances.'*'' 

At  the  common  law  manslaughter  was  classed  as  vol- 
untary and  involuntary. 

Voluntaiy  manslaughter  was  an  unlawful  killing  aris- 
ing upon  sudden  heat  or  provocation,  under  such  circum- 
stances that  showed  a  lack  of  a  sedate  and  deliberate 
action  of  the  mind  and  foraied  designed  to  kill.  The 
chief  chara'cteristic  of  this  offense  is  that  the  homicide 
while  not  being  justifiable  or  excusable,  arises  as  the 
result  of  hot  blood  or  sudden  passion  arising  out  of  an 
adequate  cause.  A  deliberate  killing  made  while  in  hot 
blood  or  sudden  passion,  but  not  arising  upon  an  ade- 
quate cause,  or  where  the  passion  is  the  result  of  slight 
or  indifferent  provocation,  will  not  reduce  the  homicide 
from  murder  to  manslaughter.  Tlie  provocation  nuist 
be  so  overpowering  as  to  temporarily  dethrone  reason 
and  to  leave  the  mind  in  such  a  condition  that  it  is  in- 
capable of  cool  reflection.  This  capacity  need  not  go  to 
the  extent  of  showing  an  utter  want  of  reason,  but  must 
be  such  a  provocation  that  men  of  the  ordinary  control 
of  their  passions  would  under  similar  circumstances,  act 
as  the  defendant.  It  must  be  so  powerful  that  at  the 
time  of  flic  fnlnl  act  the  mind  was  incai)able  of  fonning 

!t   Am.  &   EiiK.   p:ncy.  rjGO  and   507;  I.IH;    Sfato   v.    llockot,   70   la.    442; 

for  a  full  citafiou  of  authorities.  State  v.  SpanRlor,  40  la.  540j  Perry 

49—4     Black.     191;     Henton    v.  v.   State,  43   Ala.   21. 
State,  24  Tex.  4.'j4;  Gann  v.  State,  50—4  Black.  190. 

.30  (in.  67;  Bruner  v.  State,  r,8  Ind. 


Homicide  499 

a  malicious  intent."  Manslaughter  may  be  fairly  defined 
as  a  voluntary  homicide  committed  under  the  immediate 
influence  of  sudden  passion  arising  from  an  adequate 
cause,  but  neither  justified  or  excused  by  law.  By  the 
expression  ''under  the  immediate  influence  of  sudden  pas- 
sion" is  meant  that  the  provocation  must  arise  at  the 
time  of  the  commission  of  the  offense,  and  that  the 
passion  was  not  the  result  of  a  former  provocation.  The 
act  of  killing  must  be  directly  caused  by  the  passion 
arising  out  of  the  provocation  given  at  the  time  of  the 
killing.  It  is  not  enough  that  the  mind  is  merely  agi- 
tated. The  passion  may  be  either  of  the  emotions  of  the 
mind  known  as  anger,  rage,  sudden  resentment  or  terror, 
rendering  the  mind  incapable  of  cool  reflection.  By  the 
expression  ** adequate  cause"  is  meant  such  as  would 
commonly  produce  a  degree  of  rage,  anger,  resentment  or 
terror,  in  persons  of  ordinary  temper  sufficient  to  render 
the  mind  incapable  of  cool  reflection.  Insulting  words  or 
gestures  or  an  assault  and  battery  so  slight  as  to  show 
no  intention  to  inflict  pain  and  unaccompanied  with  vio- 
lence are  not  adequate  causes.  But  an  assault  and  batter^^ 
causing  pain  or  bloodshed  is  an  adequate  cause,  and  will 
reduce  a  killing  from  murder  to  manslaughter."''  Words, 
however  insulting  and  opprobrious  and  vile,  will  not  of 
themselves  be  an  adequate  cause  sufficient  to  reduce  delib- 
erate killing  in  consequence  thereof,  from  murder  to  man- 
slaughter. But  if  parties  engage  in  a  mutual  combat 
brought  on  by  words,  this  will  reduce  a  killing  to  man- 
slaughter."^ 

51— Linch  V.  state   (Ala.),  6  So.  250,  15  S.  W.  719;  Powel  v.  State, 

551;    Young   v.    State    (Tenn.),    11  28   Tex.   App.   393,   13    S.   W.   599; 

Humph.  200;   State  v.  Hill,  4  D.  &  Evans  v.   State,   6   Tex.   App.   513; 

B.  491   (N.  C.)  ;  Erwin  v.  State,  29  Richardson    v.    State,    9    Tex.    App. 

Ohio  St.  186;   King  v.  State,  2  W.  612;   Hill  v.  State,  5  Tex.  App.  2; 

Va.   Cas.   78;    4   Black.    190;    State  Ganzales    v.    State,    30    Tex.    App. 

V.  Brown,  58  Ind.  159;  Harris'  Cr.  203,  16  S.  W.  978. 

L.  169;  Perry  v.  State,  43  Ala.  21.  53— Powel  v.  State,  28  Tex.  App. 

52— Farrar  v.  State^  29  Tex.  App.  393,  supra;  State  v.  Hill,  4  D.  &  B. 


500  Criminal  Law 

§  545a.  Cause  for  jury.  The  latter  part  of  the  preced- 
ing section  is  a  mere  statement  of  the  general  rule,  that 
terms  of  reproach,  epithets  of  disparagement  and  other- 
wise insulting  language,  however  vile,  degrading  and 
opprobrious,  are  not  by  themselves  sufficient  cause  or 
provocation  to  reduce  a  deliberate  homicide  with  a  deadly 
weapon,  from  murder  to  manslaughter.  This  is  the  com- 
mon law  rule,  and  it  appears  to  have  been  universally 
adopted  by  the  courts  of  the  country.  There,  however,  ap- 
pears to  be  one  exception  recognized  by  them  and  espe- 
cially the  text  writers,  to  the  effect,  if  the  assault  is  so 
inconsiderable  as  to  be  short  of  an  actual  battery  or  the 
touching  of  the  person,  words  of  insult  and  terms  of  re- 
proach, accompanying  such  assault,  may  be  considered 
together  as  a  sufficient  cause  to  reduce  a  homicide  com- 
mitted under  the  influence  of  the  passion  kindled  thereby, 
from  murder  to  manslaughter.^*  The  most  advanced  and 
modern  doctrine  is,  that  it  is  a  matter  for  the  determina- 
tion of  the  jury,  whether  such  vile,  opprobrious  and  in- 
sulting language  is  a  cause  or  provocation  sufficient  to 
produce  that  degree  of  ungovernable  passion  which  if 

564;  State  v.  Cooley,  19  N.  M.  91,  culiar  facts  of  every  particular  case. 
140  Pac.  1111,  52  L.  K.  A.  (N.  S.)  As  a  general  rule,  the  court  after 
230;  State  v.  Harlley,  185  Mo.  669,  informing  the  jury  to  what  extent 
84  S.  W.  910,  105  A.  S.  R.  608;  the  passion  must  be  aroused  and 
Com.  V.  Webster,  S.  Gush.  (Mass.)  reason  obscured  to  render  homicide, 
295,  52  Am.  Dec.  711 ;  State  v.  murder,  should  inform  them  that 
Averill,  85  Vt.  115,  81  Atl.  461,  the  provocation  must  be  one,  the 
Ann.  Cas.  1914  B,  1005.  tendency  of  which  would  be  to  pro- 
54 — 6  St.  Tr.  771.  duce  such  a  degree  of  excitement 
"It  is  doubtless,  in  one  sense  and  disturbance  in  the  minds  of 
the  province  of  the  court  to  define  ordinary  men;  and  if  they  should 
wliat  in  law,  will  constitute  a  rea-  find  such  provocation  from  tlie 
Honable  or  adequate  provocation;  facts  i)roved,  and  should  find  tliat 
but  not,  I  think,  in  ordinary  cases,  it  did  produce  the  effect  in  the  par- 
te determine  wliether  tlie  provoca-  ticular  instance,  and  that  tlic  liom- 
tion  j)roved  in  tlie  particular  case  icide  was  tlie  result  of  such  jirovo- 
Hunicicnt  or  reasonable.  This  is  es-  cation,  it  would  give  it  the  cliarac- 
Hcntially  a  quest  ion  of  fact,  to  bo  ter  of  manslaughter." 
decided    with    reference    to    the    pe- 


Homicide  501 

taken  together  with  all  the  circumstances  of  the  particu- 
lar case,  would  cause  a  person  of  ordinary  temperament 
and  resentment  to  take  life.  If  the  jury  believe  that  he 
acted  under  the  influence  of  the  passion  thus  aroused,  he 
would  be  guilty  of  manslaughter.^^ 

§  546.  Presumption  that  defendant  acted  upon  new 
provocation,  when.  Wliere  an  accused  is  shown  to  have 
had  a  previous  malice  against  the  deceased,  and  it  can 
be  shown  that  the  homicide  was  upon  a  fresh  provocation, 
he  is  entitled  to  this  as  against  the  presumption  that  the 
killing  was  upon  the  old  malice,  and  he  will  be  presumed 
to  have  acted  upon  the  new  provocation.^^  When  an  un- 
lawful killing  is  traced  to  the  accused  it  is  presumed 
to  have  been  done  with  malice,  and  the  onus  of  the  proof 
is  upon  him  to  show  that  it  was  done  under  circum- 
stances of  extenuation,  justification  or  excuse.^''  A  wound 
inflicted  deliberately  with  an  instrument  not  within 
itself  calculated  to  inflict  serious  bodily  harm  and  with- 
out malice,  will  be  manslaughter.^^  Thus,  A  strikes  B 
with  his  hand  and  he  dies  from  the  effects  of  the  blow; 
this  will  be  manslaughter.  But  if  he  strike  him  with  an 
ax  and  he  dies,  this  is  murder,  for  the  malice  is  presumed 
from  the  insti^iment  used.  So,  if  he  strike  him  with  an 
instilment,  which  if  used  in  an  ordinary  manner,  would 
not  produce  serious  bodily  harm,  but  if  used  in  a  cruel 
and  brutal  manner  and  death  follows,  as  the  probable 
result  of  the  manner  of  the  use;  this  is  murder,  for  the 
malice  is  presumed  from  the  manner  of  the  use  of  the 

55— Maher    v.    People,    10    Mich.  57— Stokes   v.    People,    53    N.    Y. 

212,  81  Am.  Dec.   781.     See  a  dis-  114,  13  Am.  Eep.  492,  4  Black.  201; 

cussion    of    the    whole    matter    in  Silvas  v.   State,   22   Ohio  St.   90,   1 

State  V.   Sealous   Grugin,  42  L.  R.  East   P.   C    224. 

A.   774.  58—3    Greenl.    122    and    note    8; 

56— Copeland  v.  State,  7  Humph.  U.   S.   v.  Wiltberger,   3   Wash.   515. 
(Tenn.)   342;   Williams  v.  State,   3 
Heish    (Tenn.)    376;    State   v.   Hill, 
4  D.  &  B.  491. 


502 


Criminal  Law 


instrument.  If  a  school  master  chastise  his  pupil  in 
such  a  manner  as  to  produce  death,  this  will  be  murder, 
notwithstanding  the  same  punishment  would  not  prove 
fatal  if  inflicted  upon  an  adult  person.  A  woman  being 
pregnant  and  the  party  assaulting  knows  this,  and  strikes 
and  she  dies,  caused  partly  by  the  wound  and  partly  by 
her  condition,  this  will  be  murder,  malice  being  pre- 
sumed from  the  striking,  knowing  her  to  be  in  such  a 
condition.^^ 

§  547.  Insulting  words  to  female  relative.  At  the  com- 
mon law  insulting  words  directed  to  a  female  relative 
was  not  a  sufficient  excuse  or  justification  to  reduce  a 
homicide  in  consequence  thereof  from  murder  to  man- 
slaughter. But  under  the  provisions  of  some  statutes, 
insulting  words  made  concerning  a  female  relative  are 
sufficient  to  reduce  the  killing  to  manslaughter,  even 
where  it  is  committed  deliberately  and  with  the  formed 
purpose  of  killing.®**    It  is  not  necessary  that  the  words 


59— Murphey  v.  State,  9  Colo. 
435.  "So  one  who  commits  an 
assault  and  battery  on  another, 
knowing  or  having  reasonable  cause 
to  believe  that  the  other  is  sick  and 
suffering  from  disease  and  in  such 
a  feeble  and  weakened  condition, 
tliat  his  attack  will  endanger  her 
life,  inflicts  great  bodily  harm,  or 
hasten  her  death,  which  ensues,  may 
be  found  guilty  of  murder,  since 
this  would  justify  the  jury  in  find- 
ing implied  malice,  though  it  would 
not  if  he  was  aware  of  Jier 
condition,  and  had  no  reason  to 
HUj)poHe  that  his  acts  would  do  licr 
any  greater  harm  than  it  would 
uipon  prrsons  in  good  health.'' 
f'om.  V.  Fox,  7  Gray  .085,  this  taken 
from  note  to  Sullivan  v.  People,  G.'J 
L.  R.  A.,  subdivision  "Assaults," 
:',76. 


GO — "If  you  are  satisfied  that 
defendant  was  a  relative  of  An- 
tonia  Gaitau,  and  that  the  deceased 
had  used  insulting  words  or  con- 
duct to  her  and  the  killing  took 
place  immediately  upon  the  happen- 
ing of  the  insulting  words  or  con- 
duct or  soon  thereafter  and  the  de- 
fondant  met  the  deceased  after  be- 
ing informed  of  the  same;  tlion 
under  the  law  of  manslaughter,  tlic 
defcMulant  is  guilty  of  manslaugh- 
ter." (iaitau  v.  State,  11  Tex. 
A  pp.    544. 

"If  the  dcCcndaiit  had  Ix-eii  in- 
formed tliat  Davidson  had  used  in- 
sulting words  towards  the  defend- 
ant's wife  and  killed  at  his  first 
meeting  thereafter,  under  the  im- 
mediate influence  of  passion  aris- 
ing in  his  mind  from  such  infor- 
mation   ;iiiil    tli.il    Mii'li    passion   was 


Homicide  503 

be  made  in  the  presence  of  the  slayer  or  in  the  presence 
of  the  female.  But  it  is  necessary  that  the  offensive  mat- 
ter must  have  been  known  to  the  defendant  at  the  time 
and  it  must  also  appear  that  the  killing  was  under  the 
influence  of  the  passion  arising  from  the  language  used. 
For  the  husband  to  kill  a  man  in  the  act  of  adulteiy 
with  his  wife  was  at  the  common  law  an  adequate  cause 
for  reducing  a  deliberate  killing  of  the  seducer  from  mur- 
der to  manslaughter.  To  have  that  effect  he  must  have 
been  at  the  time  of  the  discovery  in  the  act  of  the  adul- 
tery." 

§548.  What  is  cooling  time.  Manslaughter  arising 
upon  sudden  passion  from  a  provocation,  the  fatal  act 
must  be  committed  while  the  defendant  is  laboring  under 
the  direct  and  immediate  influence  of  the  insult.^'^  If 
sufficient  time  elapses  from  the  time  of  the  insult  to 
the  time  of  the  blow,  to  restore  the  normal  condition  of 
the  mind — sufficient  *' cooling  time" — the  homicide  will 
be  murder  either  of  express  or  implied  malice.  The  law, 
wisely  recognizing  the  frailty  of  humanity,  allows  this 
indulgence  in  favor  of  passion,  and  does  not  ascribe  to  it 
*'a  heart  fatally  bent  upon  mischief."  A  malicious  in- 
sufficient to  render  his  mind  incap-  case  of  forcible  rape,  but  it  is 
able  of  cool  reflection,  then  you  manslaughter.  It  was  made  the 
will  find  him  guilty  of  manslaugh-  lowest  grade  of  it."  State  v.  Sam- 
ter."  Normals  v.  State,  26  Tex.  uels,  48  N.  C.  74,  64  Am.  Dec.  596 
App.  221,  9  S.  W.  606;  Hill  v.  (3  Jones  law)  11;  State  v.  Nei- 
State,  5  Tex.  App.  2.  villes,  6  Jones  453;  People  v.  Hor- 

61— 4  Black.  191.  "So  if  a  man  ton,  4  Mich.  67;  Foster  296;  Briggs 
takes  another  in  the  act  of  adultery  v.  State,  29  Ga.  723,  76  Am.  Dec. 
with  his  wife  and  kills  him  directly  630 ;  Fredo  v.  State,  127  Tenn.  376, 
upon  the  spot;  though  this  was  al-  155  S.  W.  170,  11  L.  K.  A.  (N.  S.) 
lowed  by  the  laws  of  Solon  as  like-  650;  People  v.  Campbell,  50  Cal. 
wise  by  the  Roman  civil  laws  (if  243,  43  Am.  Rep.  257;  Stevens  v. 
the  adulterer  was  found  in  the  hus-  State,  137  Ga.  520,  73  S.  E.  737,  38 
band's  house),  and  also  among  the  L.  R.  A.  (N.  S.)  99. 
ancient   Goths;    yet    in    England    it  62— Bayette     v.     State,     2     Tex. 

is  not  absolutely  ranked  in  the  class       App.    93. 
of   justifiable    homicides,    as    in   the 


504  Criminal  Law 

tent  may  be  formed  in  an  instant  of  time,  and  whether 
the  act  is  malicious  or  the  result  of  uncontrollable  pas- 
sion, is  to  be  gathered  from  the  circumstances,  and  it  is 
for  the  jury  to  determine,  whether  there  was  sufficient 
time  for  cool  reflection.^^  To  reduce  a  homicide  from 
murder  to  manslaughter,  the  provocation  must  be  of  a 
nature  of  personal  violence  and  amounting  to  an  in- 
fringement of  the  recognized  and  declared  rights  of  an 
individual  to  defend  himself  against  the  unlawful  attacks 
of  another.  The  right  which  reduces  homicide  from 
murder  to  manslaughter  is  founded  upon  that  right  which 
nature  has  planted  in  the  breast  of  eveiy  man  to  protect 
his  person  from  the  unlawful  attacks  of  others,  but  aris- 
ing from  a  cause  inadequate  to  constitute  complete  justi- 
fication for  the  killing,  and  which  would  in  the  absence 
of  passion  thus  excited  be  murder.  The  doing  of  a  lawful 
act  no  matter  how  offensive  to  another  is  never  in  law 
deemed  a  sufficient  cause  to  justify  or  mitigate  an  act 
of  violence.^*  To  justify  the  reduction  of  a  homicide 
committed  with  a  deadly  weapon,  from  murder  to  man- 
slaughter, the  slayer  must  be  free  from  fault  in  provoking 
the  conflict,  which  brought  the  assault  upon  himself.  If 
for  instance  he  is  a  trespasser  upon  the  premises  of  an- 
other, and  he  refuses  to  rectify  the  wrong  by  leaving 
tlie  premises  when  requested  by  the  owner  to  do  so,  and 
the  owner  make  an  attack  upon  him  for  the  purpose  of 
removing  him  and  he  kills  the  owner,  this  is  murder.*' 
So,  in  the  case  of  the  killing  of  an  officer  arresting  an- 
otlier,  if  the  arrest  is  legal  or  upon  legal  authority,  it 
will  1)0  murder,  and  if  without  authority  or  legality,  it 

63— Com.  V.  Drum,  58  Pa.  St.  9;  64— State  v.  Lowcry,  4  Ncv.  161- 

Com.    V.    Mink,    123    Mass.    442,    25  170. 

Am.  Rep.  109;  Miller,  37  Ind.  432;  65— Hinton     v.     State,     24     Tex. 

Patterson    v.    State,    66    Ind.    185;  454;    Lyons   v.    State,    22   Ga.   399; 

Com.    V.    Self  ridge    liar.    &    Thom.,  Lingo  v.  State,  29  Ga.  484;  Dill  v. 

Sclf-Dcfonse     1;     State    v.    Grugin,  State,    25    Ala.    15. 
147,   42   L.    n.    A.    774. 


Homicide  505 

will  be  manslaughter.^®  So  in  keeping  with  this  principle, 
it  has  been  held  that  where  the  husband  take  another  in 
the  act  of  enticing  his  wife  from  his  house  for  the 
purpose  of  dishonoring  her,  notwithstanding  she  consents 
to  such  dishonor,  he  had  the  right  to  arrest  him  in  the 
highway,  and  if  such  person  kill  the  husband  in  resist- 
ing such  restraint  it  will  be  murder." 

This  principle  is  best  understood  when  it  is  remembered 
that  no  one  has  the  right  to  infringe  upon  the  natural 
rights  of  another,  unless  such  rights  and  privileges  have 
been  curtailed  by  the  law.  It  appears  to  be  in  accord 
with  sound  principles  of  the  law,  where  if  one  is  re- 
strained in  the  free  exercise  of  the  privileges  which 
accompany  his  person,  by  another  not  having  a  color  or 
semblance  of  legal  authority  for  his  action  in  thus  re- 
straining or  attempting  to  restrain  him,  to  be  justified 
in  resorting  to  any  degree  of  force  necessary  to  protect 
himself.  Thus  if  A  is  forcibly  arrested  or  kidnaped  he 
certainly  would  be  justified  in  forcibly  freeing  himself, 
even  to  the  taking  the  life  of  the  kidnapper  if  no  other 
means  could  free  him. 

§  549.  Killing  of  officer  while  making  arrest.  As  a  fur- 
ther discussion  of  this  branch  of  homicide,  illustrations 
are  found  in  the  duties  and  relative  rights  of  an  officer 
of  the  law  and  the  citizen.  An  officer  is  nothing  in  effect 
but  an  agent  of  the  public  with  specified  duties  to  per- 
form and  in  the  performance  of  such  duties  the  law  con- 
fers upon  him  rights  paramount  to  that  of  the  otherwise 
natural  rights  of  the  citizen.  To  this  end  an  officer  armed 

66— Roberts  v.  State,  14  Mo.  147,  Slatin  v.  State,  30  Miss.   619;    Oli- 

55  Am.  Dec.  97;   Harrison  v.  State,  ver  v.  State,   17  Ala.  587;   Pond  v. 

24   Ala.   67,   60   Am.    Dec.    450;    17  State,   8    Mich.    150;    Dill   v.    State, 

Law  Times  222;   State  v.  Pliver,  2  25  Ala.  15;   Scott  v.  Com.,  94  Ky. 

Houston    608;    Noles    v.    State,    26  511,  23  S.  W.  210,  42  A.  S.  R.  371; 

Ala.   31,   62   Am.   Dec.    711;    Galla-  State   v.    Cooper,    112    La.    281,    36 

her  V.  State,  3   Minor  270.  So.  350,  104  A.  S.  R.  447. 

67— State  v.  Croton,  6  Ired.  164; 


506  Criminal  Law 

with  a  legal  warrant  for  the  arrest  of  a. person  may  arrest 
him,  and  if  such  person  knows  or  has  a  reason  to  be- 
lieve that  such  officer  is  acting  in  an  official  capacity,  and 
he  purposely  kill  him  in  resisting,  he  is  guilty  of  murder. 
It  is  the  duty  of  an  officer  to  inform  a  person  about  to 
be  arrested  that  he  is  an  officer  and  that  he  has  a  war- 
rant for  his  arrest.  This  special  information  is  not, 
however,  necessary  except  in  the  case  the  party  to  be 
arrested  has  no  general  information  as  to  the  official  ca- 
pacity of  the  purported  officer.  A  person  possessed 
of  the  information  that  the  officer  has  the  legal  right  to 
arrest  him,  it  is  his  duty  to  submit  to  the  restraint,  and 
it  makes  no  difference  whether  the  infonnation  comes 
from  the  officer  or  from  other  sources.^^  But  this  is  mod- 
ified where  the  force  or  violence  is  excessive  in  making 
the  arrest.  If  the  officer  uses  more  force  than  is  necessaiy 
and  the  party  resisting  such  force  kills  him  he  will  be 
guilty  of  manslaughter  or  justifiable  homicide  according 
to  circumstances.®*  Thus  it  becomes  necessary  that  an 
officer  inform  the  person  to  be  arrested  of  his  authority 
for  the  arrest  where  such  person  is  ignorant  of  that  fact. 
He  must  also  execute  the  same  in  a  legal  way — that  is, 
use  no  more  force  than  is  necessary  to  make  the  arrest, 
using  force  for  force  in  the  case  of  a  misdemeanor.  Where 
he  uses  excessive  force  he  becomes  then  an  aggressor  and 
where  he  is  killed  in  resistance  thereto  it  will  be  man- 
slaughter in  the  slayer."''®  Circumstances,  however,  shoAv- 
ing  malice  in  tlie  slayer  at  the  time  of  the  liomicide,  re- 

(58— OkIos  v.  Com.,  H  S.  W.  SKi;  State  v.  HimiIimhi,  •2:\  l:i.  \'^\,  92  Am. 

I'lasters  v.  State,  1  Tex.  App.  073;  ])ec.   417. 

Com.  V.  Drew,  4  Mass.  .3IM) ;   Oliver  70 — State     v.     Thompson,     9     la. 

V.    State,    17    Ala.   ."587;    I'ritcliet   v.  188,    74    Am.    Dec.    342;    State    v. 

State,  22  Ala.  39;   State  v.  Croton,  Sliijiley,  10  Minn.  223,  88  Am.  Dec. 

r,   Ind.   104;   King  v.  State,  89  Ala.  70;  State  v.  Oliver   (Del.),  2  IIous- 


or. 


43;   State  v.  Alford,  80  N.  C.  44.'3 ;  ton     585;     State    v.    Stockston, 

Starr  v.   U.  S.,   153   U.   S.  614.  Tex.     770.       "Tlw     ri^lit     to     repel 

09 — People    v.    Ilorton,    4    Mich.  force   for    tdrcc   conl  itiiics   imlil   the 

07;  State  v.  McDaniel,  8  Mi.ss.  401;  jxTHon     attempting     the     unlawful 

State    V.    Laml)crt,    23    Miss.    322;  arrest     pres-ses     forward     A\'ith     so 


Homicide  507 

gardless  of  the  previous  relation  of  the  parties,  will  be 
murder.  In  a  leading  case  the  language  of  the  court  is 
that  "A  Peace  officer  has  the  right,  and  it  is  his  duty, 
to  arrest  one  who  is  committing  a  breach  of  the  peace  in 
his  presence,  and  to  use  such  force  as  necessary  to  effect 
the  arrest;  and  if  the  person  disturbing  the  peace  resists 
arrest,  and  in  so  doing  kill  the  officer,  he  is  guilty  of  mur- 
der, if  he  knew  that  the  person  attempting  to  make  the 
arrest  was  an  officer;  and  guilty  of  manslaughter  if  he 
did  not  know  it.  The  law  of  self-defense,  as  applicable 
to  recounters  between  private  persons  does  not  apply, 
unless  the  person  resisting  the  arrest  has  reasonable 
ground  to  believe,  and  does  believe,  that  the  officer  is  not 
acting  in  good  faith  in  the  attempt  to  arrest,  but  is  using 
his  official  position  to  gratify  personal  feeling  against  the 
person  sought  to  be  arrested,  and  that  by  submitting  to 
the  arrest  and  to  be  disaniied,  he  will  by  reason  of  this 
fact,  be  in  danger  of  great  bodily  harm  or  of  losing  his 
life.  The  officer  being  in  the  right,  and  in  the  discharge 
of  his  duty,  the  person  resisting  does  it  at  his  peril,  and 
if  he  kill,  he  is  guilty  of  murder  or  manslaughter,  as  it 
may  appear  that  he  knew  or  did  not  know  the  character 
in  which  the  officer  was  acting."'^ 

§  550.  Peace  officer  must  act  in  conformity  to  law.  As 
we  have  stated  a  peace  officer  is  created  by  law,  for  the 
purpose  of  preserving  the  public  peace  and  arresting 
public  offenders,  yet  their  actions  must  be  in  conformity 

r/iueh  force  that  the  person  defend-  71 — Fleetwood    v.    Com.,    80    Ky. 

ing     may     choose      between     three  1,    4    Am.    Cr.    Eep.    36;    State    v. 

things:      To    retreat;    to    surrender  Lovel,    23    la.    304,    20    Tex.    App. 

or  to  kill  his  adversary.     If  he  can-  360;    Pierce  v.  State,  17   Tex.  App. 

not    disable    his    adversary    without  132,  22  S.  W.  587;   State  v.  Evans, 

killing   him,   he    must    retreat,    sur-  161  Mo.  95,  61  S.  W.  500,  84  A.  S. 

render   or   incur  the   guilt   of   man-  K.   669;   Robinson  v.   State,   93   Ga. 

slaughter."      Buckner's    case,    467,  77,  18  S.  E.  1018,  44  A.  S.  R.  127; 

Hor.    &   Thom.    Cr.    Defenses,    716;  Miller  v.   State,  31   Tex.  App.  600. 

State    V.    Roberts,    14    Mo.    146.  21   S.  W.  925,  37  A.  S.  R.   836 


508  Criminal  La^ 

with  the  law.     The  provision  of  the  common  law  gov- 
erning the  arrest  of  felons  gives  the  right  to  the  peace 
officer  to  arrest  without  warrant  any  person  committing 
a  felony  in  his  presence,  and  in  the  execution  of  this  part 
of  his  duty  may  kill  the  offender  if  the  arrest  cannot  be 
made  without  resorting  to  such  means;  and  this,  too, 
where  the  accused  flees,  and  can  only  be  apprehended  by 
this  means."^^    But  in  the  case  where  the  officer  has  a  sus- 
picion that  a  felony  has  been  committed  he  may  lawfully 
make  the  arrest,  but  only  as  he  is  permitted  to  do,  repel 
force  for  force,  as  in  cases  of  nonfelonious  crimes.    He 
may  stand  his  ground  and  if  it  becomes  necessary  to  kill, 
to  preserve  his  life,  he  may  justifiably  do  so.    Where  a 
peace  officer  undertakes  to  arrest  for  a  felony  without 
warrant,  he  does  so  at  his  peril  and  if  he  kills  the  sup- 
posed felon  while  fleeing  from  him,  and  it  after  transpires 
that  he  was  guilty  only  of  a  misdemeanor,  the  officer  is 
guilty  of  manslaughter.''  But  where  he  has  a  warrant  for 
the  arrest  of  one  charged  with  felony,  he  then  may  safely 
kill  to  prevent  an  escape  after  the  an-est.    He  may  also 
kill  to  effect  the  arrest  where  the  accused  resists.    He 
may  pursue  the  felon  when  no  arrest  has  been  made  and 
if  the  arrest  cannot  be  made  without  killing,  then  he 
may  kill.    But  in  this  the  jury  must  be  satisfied  that  he 
tried,  in  good  faith,  and  with  reasonable  prudence  and 
caution,  to  make  the  arrest,  and  was  unable,  because  of 
the  flight  of  the  person,  and  that  he  resorted  to  this  only 
when  all   other  proper  means  had  failed."^*     An  officer 

72— Tliomas  v.  Kinkead,  55  73— Mary  Petrie  v.  S.  H.  Cart- 
(Ark.)  502,  L.  R.  A.,  vol.  15,  p.  Wright  (Ky.),  59  L.  R.  A.  720; 
558,  29  A.  8.  R.  68,  11  S.  W.  854;  Tcoplo  v.  Kilvington,  104  Cal.  8(5, 
CoMwcll  V.  State,  41  Tex.  86;  37  Tac.  799;  State  v.  Evans.  161 
Writi-  V.  State,  44  Tex.  645;  Head  Mo.  95,  61  S.  W.  590. 
V.  Martin,  85  Ky.  480;  Bryant  v.  74— State  v.  Iluntor,  106  N.  W. 
State,  65  N.  C  .327;  Clements  v.  796,  8  L.  R.  A.  529;  Thomas  v.  Kin- 
State,  50  Ala.  1 17  ;  Rencau  v.  State,  kead  (Ark..),  15  R.  L.  A.  558; 
2  Lea.  720;  U.  S.  v.  Clark,  31  Fed.  Brown  v.  Weaver,  42  R.  L.  A.  423, 
710.  76   Miss.   7;    McDaniol   v.   Stat«,   47 


Homicide  509 

under  the  rules  of  the  common  law  may  make  an  an-est 
where  a  misdemeanor  has  been  committed  in  his  presence, 
or  where  he  has  a  warrant.  Where  resistance  is  offered 
he  is  authorized  to  use  force  for  force  but  is  never  justi- 
fied in  taking  the  life  of  the  accused,  unless  he  is  com- 
pelled to  kill  to  preserve  his  own  life.  If  he  use  more 
force  than  is  necessary  to  make  the  arrest,  he  becomes  an 
aggressor,  and  to  kill,  is  manslaughter,  at  the  least.  An 
officer  has  no  right  to  kill  a  misdemeanant  who  flees  from 
arrest  or  who  escapes  from  his  custody.  He  may  exert 
such  physical  force  as  is  necessary  on  the  one  hand  to 
effect  the  arrest  or  on  the  other  to  subdue  the  efforts  of 
the  prisoner  to  escape.  But  he  can  neither  take  the  life 
of  the  accused,  or  inflict  upon  him  serious  bodily  harm."^^ 

§  551.  Killing  an  officer  in  the  resistance  of  arrest, 
malice  is  presumed.  It  is  the  duty  of  the  person  to  quietly 
submit  to  arrest,  where  he  .is  in  possession  of  information 
which  apprises  him  of  the  official  capacity  of  the  arrest- 
ing officer.  If,  therefore,  a  person  has  knowledge  of  the 
official  capacity,  and  he  resists  arrest  and  kill  the  officer, 
this  is  murder,  and  the  malice  is  implied  or  presumed, 
notwithstanding  he  may  not  have  intended  to  have  killed. 
This  is  murder  as  borne  out  by  the  authorities.  The  pris- 
oner is  bound  to  submit  to  the  arrest,  and  when  he  re- 
sists he  becomes  a  wrong  doer,  and  a  killing  under  such 
circumstances  would,  according  to  the  fact,  be  murder  or 
manslaughter,  and  in  the  case  of  it  being  murder  the 
malice  is  inferred.''^^ 

Am.  Dec.  93;   Jackson  v.  State,  66  Groom  v.   State,  85  Ga.  718,  21   A. 

Miss.  95.  S.  R.  179;  Eoberts  v.  State,  14  Mo. 

75— Thomas  v.  Kinkead,  15  E.  L.  138;    State   v.    Adams,    78   la.   292, 

A.  55;  State  v.  Taylor  (76  Vt.  I.)  43  N.  W.  194;   State  v.  Taylor,  70 

42  L.  E.  A.   673  and  note  thereto;  Vt.  1,  67  Am.  St.  Eep.  648,  39  Atl. 

Smith  V.  State,  59  Ark  132,  26  B.  W.  447 ;  Hawkins  v.  Com.,  14  B.  Mon. 

712,  43  A.  S.  K.  20.  (Ky.)    395,   61    Am.   Dee.    158. 

76 — See      the      following      cases: 


510  Criminal  Law 

involuntary  manslaughter 

§  552.  Definition.  Involuntary  manslanglitcr  is  the  nn- 
intentional  killing-  of  a  human  being,  while  in  the  pursuit 
of  an  unlawful  act  or  while  executing  a  lawful  act  in  an 
unlawful  manner."  If  the  killing  prove  to  be  the  un- 
foreseen result  of  an  unlawful  act,  it  being  within  itself 
a  substantive  misdemeanor,  mala  in  se,  it  will  be  man- 
slaughter."^^ If  the  act  attempted  is  a  felony  the  killing 
will  be  murder."'^*  Gross  negligence  on  the  part  of  one, 
upon  whom  rests  a  special  duty,  and  in  consequence  of 
such  negligence  the  death  of  another  is  thereby  caused, 
this  is  manslaughter.^"  As  where  a  physician  negligently 
administers  poison  to  another  and  death  result  as  the 
effect.  So,  also,  certain  of  the  employees  of  steam  ships, 
the  operators  of  railway  trains  and  those  operating  dan- 
gerous machines  are  held  to  a  strict  caution  in  the  man- 
agement of  the  same,  and  any  gross  negligence,  whereby 
a  person  is  killed  is  manslaughter.  The  careless  handling 
of  fireamis  and  death  result  as  a  consequence  is  man- 
slaughter. In  cases  of  this  character  there  may  be  a  total 
neglect  to  perform  a  positive  duty  or  a  gross  negligence 
in  the  performance  of  the  duty.  In  either  case  the  killing 
as  the  result  is  manslaughter."  Wherever  the  law  places 
a  duty  upon  another  to  render  protection  and  assistance 
to  some  other  person  a  failure  or  a  refusal  to  perform  the 
duty  and  death  follow  as  the  reasonable  result  of  such 
neglect,  it  is  murder  or  manslaughter,  according  to  liic 

77— State   v.    Al^arr,   39    la.    185;  (Ky.),    20    8.    W.    1229.      The   court 

Johnson  v.  State,  94  Ala.  35,  10  So.  says:     That    "undoubtedly    an    act 

667.  niay   be  so  heedless  and   incautious, 

78 — State   v.   ;McNabb,   20   N.   11.  necessarily    to    be    deemed    wanton 

Ifilt;  State  V.  Smith,  ;J2  Me.  .1(i9,  54  and    unlawful,   although   there   need 

Am.   Dec.   578.  not    be    any    express    intent    to    do 

79_Htate  v.  Meyers,  99  Mo.  107,  mischief,  and   the  p.'irty   who   there- 

12  8.  W.  516;   Morgan  v.  State,  51  by   causes   death    will    be    guiity    of 

Neb.  672,  71   N.  W.   788.  manslauRhter " 

80_Fitzgcrald  v.  State,   112  Ala.  81— Com.   v.    ll.utwdl,    IL'S    M.iss. 

34,    20    So.     966;     Smith     v.     Com.  n5,  :?5   Am.   Hep.  :;91. 


Homicide  511 

circumstances.  Thus  a  switchman  on  a  railroad  is  re- 
quired for  the  proper  and  safe  operation  of  railroad 
trains,  to  open  and  close  switches  under  his  care  and 
when  he  negligently,  without  any  intent  on  his  part  to 
harm  another,  fails  to  open  and  close  them  and  the  train 
is  derailed  and  persons  killed,  is  guilty  of  manslaughter.^^ 
So,  the  failure  of  an  officer  of  a  vessel  to  keep  a  proper 
lookout. 

§553.  Misdemeanors  merely  mala  prohibita.     At  the 

common  law  the  accidental  killing  of  another  while  the 
perpetrator  was  engaged  in  the  attempt  to  commit  some 
misdemeanor,  mala  in  se,  or  in  some  act  the  commission 
of  which  entailed  a  wrong  within  itself,  or  in  other  words, 
inherently  evil,  would  be  murder.  So  the  accidental  kill- 
ing of  another  while  in  the  attempted  perpetration  of  a 
felony  was  murder.  A  misdemeanor,  mala  prohibita,  is 
an  act  considered  evil  only  because  it  is  merely  a  police 
regulation  enacted  for  the  purpose  of  preserving  the 
safety,  comfort  and  the  health  of  the  community,  and  is 
not  of  sufficient  magnitude,  to  predicate  a  conviction  for 
manslaughter,  if  an  inadvertence  occur  in  the  attempted 
violation.  If  the  conduct  of  the  defendant  coupled  with 
the  doing  of  the  prohibited  acts,  endangers  the  life,  or 
the  tendency  is  greatly  in  that  direction,  this  will  be 
sufficient  to  make  the  killing  manslaughter.^^ 

§  554.  Negligent  acts.  Every  person  is  bound  under 
the  common  dictates  of  justice  to  confine  his  conduct 
within  the  legitimate  limits  of  the  law\  We  all  have 
rights  recognized  by  the  law  and  such  rights  are  in  the 
main  common  to  all  of  us.    In  exercising  these  rights  we 

82— state   v.    O 'Brian,   32    N.    J.  83— See  following  cases:    Thomp- 

L.  169;  Anderson  v.  State,  27  Tex.  son  v.   State,   131    Ala.    18,   31    So. 

App.  177,  11  Am.  St.  Kep.  33.     See  725;    Estell   v.   State,   51   N.   J.   L. 

State   V.   Dorsey,   118  Ind.    167,   10  182,  17  Atl.  118;  People  v.  Pearne, 

Am.   St.   Eep.    111.  118   Cal.    154,   50   Pac.   Eep.   376. 


512  Criminal  Law 

are  required  to  do  so  in  a  legal  manner.  None  are  allowed 
to  do  a  thing  the  law  gives  them  a  right  to  do  in  a  negli- 
gent manner.  This  rule  is  limited  in  application  however, 
to  the  extent  that  if  the  negligent  act  affects  the  doer 
only,  then  no  one  can  complain  of  the  manner  of  its  ac- 
complishment. The  penal  law  reaches  and  punishes  such 
acts  in  proportion  to  the  injuiy  done.  This  is  illustrated 
where  one  having  the  right  to  carry  fireanns,  but  handles 
them  in  such  a  manner  that  the  life  or  the  safety  of  others 
are  endangered;  or  where  he  does  other  acts  in  such  a 
manner  as  to  accomplish  such  results.^* 

SELF   DEFENSE 

§  555.  Illustrations.  Self  defense  is  that  right  every 
person  has  to  protect  his  person  from  unlawful  assaults, 
and  his  habitation  and  his  property  from  the  unlawful 
intrusion  of  others.  ''Where  one  in  the  law^ful  pursuit  of 
his  business  is  attacked  by  another,  under  circumstances 
w^hich  denote  an  intention  to  take  away  his  life  or  do  him 
some  bodily  hanii  may  lawfully  kill  the  assailant,  pro- 
vided he  use  all  the  means  in  his  power  otherwise  to  save 
his  own  life  or  prevent  intended  harm.  Or  where  the 
attack  upon  him  is  so  sudden,  fierce  and  violent  that  a 
retreat  would  not  diminish  but  increase  his  danger  he 
may  instantly  kill  his  adversarj^  without  retreating  at 
all.  Or  where  from  the  nature  of  the  attack  there  is 
reasonable  ground  to  believe  that  there  is  a  design  to 
destroy  his  life  or  commit  a  serious  injury,  the  killing  of 
the  assailant  will  be  excusable  homicide,  although  it 
might  afterwards  appear  that  no  felony  was  intended." 
In  tlie  case  of  sudden  and  unexpected  assault  where  there 
is  an  apprehension  of  serious  bodily  injury  to  justify  the 
killing  there  must  be  a  reasonable  cause  for  such  appre- 
hension, mere  fear  of  the  defendant  that  the  assailant 
will  do  him  serious  bodily  injury  or  take  his  life,  is  not 

84 — Sec   authorities    in    preceding 
Hcction. 


Homicide  513 

sufficient  to  excuse  the  killing.^^  But  such  apprehension 
may  be  based  upon  appearances  only.^^  There  must  be 
a  reasonable  cause  as  viewed  from  the  defendant 's  stand- 
point, although  it  afterwards  transpires  that  the  appre- 
hension was  founded  upon  appearances  and  not  reali- 
ties. The  court  in  one  case  says  that  ''When  one 
without  fault  himself  is  attacked  by  another  in  such  a 
manner  or  under  such  circumstances  as  to  furnish  rea- 
sonable grounds  for  apprehending  the  design  to  take 
away  his  life  or  to  do  him  some  great  bodily  harm  and 
there  is  a  reasonable  ground  for  believing  the  danger  im- 
minent, and  that  such  design  will  be  accomplished,  I  think 
that  he  may  safely  act  upon  appearances  and  kill  the  as- 
sailant if  that  be  necessary  to  avoid  the  apprehended  dan- 
ger and  the  killing  will  be  justifiable,  although  it  may 
afterwards  turn  out  that  the  appearances  were  false  and 
that  there  was  in  fact  neither  design  to  do  him  serious 
injury,  nor  danger  that  it  would  be  done.^''^ 

§  556.  Apprehension  of  danger.  In  an  early  Tennessee 
case  the  court  held  that  where  the  defendant  was  a  timid 
man  and  had  used  all  the  power  at  his  command  to  escape 
from  an  overbearing  ' '  bully ' '  who  had  intimidated  him  to 
such  an  extent  as  to  take  from  him  all  responsibility  and 
malice  pretense,  might  lawfully  kill  his  assailant,  continu- 
ing, says:  "That  if  the  jury  believed  that  Granger  was 
in  great  bodily  harm  from  Roach,  or  thought  himself  so, 
then  the  killing  would  have  been  in  self  defense.  "^^    It 

85— Dyson     v.     State,     26     Miss.  P.  C.  40;   Foster  Cr.  L.  263;  U.  S. 

362;    Williams    v.    State,    3    Heisk,  v.  Shulburg,  3  Wash.  515. 
376;   State  v.  Harris,  1  Jones   190;  88— Granger    v.    State,    5    Yearg. 

Eippy  V.  State,  2  Head   (Tenn.)   27.  459;  Ripply  v.  State,  2  Head.  217; 

86 — Louge    V.     Com.,     2     Wright  Jackson    v.    State,    Hor.    &    Thom., 

Penn.    261;     People    v.    Shorter,    4  S.   D.   476;    People   v.   Williams,   32 

Barb.    460;     Stewart    v.     State,     1  Cal.  280;  State  v.  Chandler,  5  La. 

Ohio    71;    Oliver   v.    State,    17    Ala.  Ann.  490;   State  v.  Chopin,  10  La. 

587.  Ann.  458;  Gladen  v.  State,  12  Fla. 

87— People    v.    Shorter,    4    Barb.  462;    State    v.    O'Connor,    31    Mo. 

460;    Roscoe    Cr.    Ev.    639;    1    Hale  389. 
C.  L.— 33 


514  Criminal  Law 

appears  that  this  case  was  afterwards  overruled.  But 
it  has  been  followed  by  other  cases.  Fear,  nervous  excite- 
ment or  morbid  apprehension  of  hann  is  no  defense.  The 
jury  are  to  judge  whether  the  apprehension  is  reasonable, 
determined  from  the  surroundings  and  the  circumstances 
and  to  do  this  they  may  also  take  into  consideration  the 
relative  physical  condition  of  the  parties.  The  "test" 
as  contended  by  some  of  the  courts  is  that  the  apprehen- 
sion of  danger  must  be  so  great  as  to  create  in  the  ac- 
cused, as  a  man  of  ordinaiy  prudence  and  caution  a  rea- 
sonable belief  that  unless  he  acts  at  once  some  serious 
bodily  harm  or  death  will  be  inflicted  upon  him.  An 
opposite  view  is  taken  by  other  courts. 

If  the  apprehension  of  danger  is  the  result  of  fear, 
cowardice  or  congenital  weakness,  and  not  the  result  of 
real  or  apparent  danger,  then  there  is  no  excuse  for  the 
act  unless  the  weakness  of  mind  might  amount  to  insanity 
or  idiocy.  In  determining  whether  the  defendant's  belief 
of  the  apprehended  danger  is  reasonable  the  jury  sliould 
do  this  through  the  eyes  of  the  defendant.  This  is  the 
most  liberal  and  modern  doctrine.  Who  can  say  what 
move,  gesture  or  attitude  of  the  deceased  might  have  im- 
pelled the  defendant  to  the  fatal  act,  believing  himself  to 
be  in  danger  of  great  bodily  harm.  Actus  non  facit  renin 
nisi  mens  sit  rea,  is  a  maxim  of  the  law — the  fact  of  intent 
is  to  be  gathered  from  the  conditions  and  circumstances 
surrounding  a  man.^® 

89 — Ilor.   &,   Thom.   ydf-d,   251-2.  ugaiiist  llic  dcfenduut,  the  general 

"The  jury  are  inatructcd  that  in  reputation  of  the  deceased  for  vio- 

determining    the    existence    of    ac-  lencc,    the    language    of    the    dc- 

tual  or  apparent  danger,   they   are  ceased  just  before  and  at  the  time 

to  view  tlic  facts  of  the  case  from  of    the    homicide,    in    determining 

the    standpoint    of    the    defendant,  the   guilt   or   the   innocence   of   the 

at  the  time  of  the  killing,  placing  defendant."     Varrow   v.   State,   23 

thfniHclvos   in   the   position   of   the  Tex.  App.  462;  also  see  Ilumphriea 

defendant,  at  the  time  of  the  kill-  v.   State,  25   Tex.   App.   126. 
ing,   taking   into   consideration  the  "To  justify  the  act  thp  evidence 

threats     made     by     the     deceased  must  show  that  the  defendant  com- 


Homicide  515 

§  556a.  Cowardice,  fear  etc. — Different  views.  Pro- 
ceeding further  with  the  discussion  of  the  preceding  sec- 
tion the  obsei'vation  is  made  that  the  courts  seem  to 
be  greatly  out  of  harmony  with  each  other.  The  rule  of 
one  line  is  that  no  consideration  should  be  taken  of  the 
susceptibility  as  regards  fear,  cowardice  or^  physical 
courage.  This  rule  seems  to  be  founded  upon  the  theory 
that  when  a  man  is  placed  in  a  position  to  acquire  this 
right  of  defense,  he  must  be  guided  by  and  act  upon  such 
impressions  as  would  cause  a  man  of  ordinary  prudence 
and  caution  to  act.  This  necessarily  precludes  a  person 
who  is  not  possessed  of  that  degree  of  physical  courage 
as  possessed  by  the  ordinary  prudence  and  caution  from 
invoking  the  rule.  Upon  the  other  hand  it  is  contended 
by  many  authorities  that  the  matter  should  be  viewed 
from  the  stand-point  of  the  defendant,  whether  induced 
thereto  by  cowardice,  fear  or  timidity.  This  proposition 
is  so  well  stated  that  we  reproduce  the  following  which 
strikes  the  writer  as  being  the  true  rule  supported  by 
sound  reason,  and  in  accordance  with  the  highest  dictates 
of  justice.^"  ' '  I  do  not  think  it  proper  that  a  jury  should 
be  authorized  to  determine  the  standard  of  courage  in  a 
case  of  self-defense,  or  whether  the  party  attacked,  in 
what  he  did  in  his  defense,  acted  cowardly  and  therefore 
without  warrant.     There  is  no  question  of  courage  or 

mitted  the  act  as  charged  and  that  v.  State,  13  Tex.  App.  561;  Powell 

there  was  at  least  an  apparent  ne-  v.  State,  5  Tex.  App.  234;  Pugh  v. 

cessity  to  ward  off  some  unlawful  State,   2   Tex.   App.   539;    State   v. 

attack.     It  is  not  enough  that  the  Perder,  27  Fla.  370,  26  Am.  St.  Eep. 

defendant  believed  himself  to  be  in  75. 

danger,   unless   the    facts    and    cir-  90 — People   v.    Lennon,    71    Mich, 

cumstances  are  such  that  the  jury  298,  38  N.  W.  82,  15  Am.  St.  Eep. 

can  say  that  he  had  a  reasonable  259;   People   v.  McGinnis,   234  111. 

ground  for  his  belief."     Clampett  68,  84  N.  E.  687,  123  Am.  St.  Eep. 

V.  State,  9  Tex.  App.  27;   Case  v.  73.     The   view  that   cowardice   no 

State,  41  Tex.  182;  Kelly  v.  State,  defense.     State  v.  Stockman,  82  S. 

27    Tex.   App.    502;    McEeynolds   v.  C.  388,  64  S.  E.  595,   129  A.  S.  E. 

State,    4    Tex.   App.    327;    Gongales  888. 
V.  State,  30  Tex.   App.  203;   Kemp 


516  Ckiminal  Law 

cowardice  in  the  case.  I  am  aware  that  the  rule  laid 
down  by  the  trial  court  has  been  sustained  in  some  cases, 
collected  and  reported  in  Horrigan  and  Thompson's  cases 
of  Self-Def ense ;  but  the  doctrine  or  the  reason  given  for 
it  is  not  in  accord  with  the  principles  of  self-defense,  as 
now  almost  universally  held  and  enunciated  by  the  courts 
of  this  country. 

The  question  to  be  detemiined  is,  Did  the  accused, 
under  all  the  circumstances  of  the  assault,  as  it  appeared 
to  him,  honestly  believe  that  he  was  in  danger  of  his  life 
or  great  bodily  hami  and  that  it  was  necessaiy  to  do  what 
he  did  in  order  to  save  himself  from  such  apparent  threat- 
ened danger?  If  so,  the  inquiry  is  ended.  It  can  and 
ought  to  make  no  difference  whether  he  is  a  bold,  strong 
man,  used  to  affrays  and  personal  encounters,  or  a  weak, 
timid  man  unacquainted  with  broils  or  assaults,  as  to  the 
sufficiency  of  his  reason  for  his  action,  if  the  juiy  be- 
lieve that  he  acted  honestly  in  fear  of  his  life  or  great 
bodily  hann.  The  fact  of  his  physical  and  mental  make- 
up, and  his  experience  in  danger  are  to  be  considered,  it 
is  true,  as  bearing  upon  the  honesty  of  his  alleged  belief, 
upon  which  he  bases  his  right  to  act;  but  in  such  con- 
sideration tlie  fact  that  the  accused  is  weak,  timid  and 
cowardly  by  nature  is  to  be  weighed  in  his  favor  and  not 
against  him.  To  hold  otherwise  would  be  set  at  naught 
and  to  rule  at  variance  with  the  well-known  laws  of 
Inuiiaii  nature  and  to  place  the  weak  and  timid  at  the 
mercy  of  the  strong.  It  is  bad  enougli  to  be  constitu- 
tionally a  coward,  without  having  the  law  also  declare 
that  the  coward  has  no  right  to  act  in  self-defense  until 
he  reaches  tlie  point  where  a  man  of  average  courage 
would  have  defended  himself  in  the  same  manner,  and 
to  have  tlie  quant nni  of  coui-age  necessary  in  such  cases 
determiiicd  hy  a  jury  sitting  in  safety  and  cool  blood, 
listening  to  what  must  always  be  a  tame  recital  of  the 
facts  compared  to  their  ai)pearancc  at  the  time  they  oc- 
curred. 


Homicide  517 

§  557.  Threats  to  take  life.  It  is  a  settled  principle 
that  a  threat  to  take  life  or  to  do  serious  bodily  injury 
is  no  justification  for  a  deliberate  and  premeditated  hom- 
icide. Threats  that  one  will  kill  on  sight  will  not  alone 
justify  the  threatened  party  to  kill  the  other  unless  de- 
ceased, at  the  time  of  the  homicide,  indicated  by  word 
or  act  his  intention  to  carry  the  threat  into  execution. 
There  must  be  an  overt  act  on  the  part  of  the  deceased, 
indicating  that  he  will  attempt  to  carry  the  threat  into 
execution.  The  belief  and  apprehension  of  danger  must 
be  founded  upon  circumstances  showing  that  the  defend- 
ant had  reasonable  grounds  to  believe,  and  did  believe, 
that  the  threat  would  be  executed.  It  must  be  shown  that 
the  threats  were  communicated  to  the  defendant  prior 
to  the  homicide.  The  character  of  the  deceased  for  vio- 
lence, as  well  as  his  hatred  and  animosity  toward  the 
defendant,  are  proper  matters  for  the  consideration  of 
jury,  in  detemiining  the  question  of  the  reasonableness 
of  the  defendant's  fear  of  injury.  The  defendant  will 
not  be  justified  if  by  design,  contrivance  or  fault  of  his 
own,  an  opportunity  is  afforded  him  for  striking  in  his 
defense.    He  must  be  free  from  f ault.^^ 

§  558.  Nonfelonious  assaults.  Where  the  defendant 
brings  on  a  nonfelonious  assault,  or  where  he  engages  in 
a  mutual  combat,  he  will  be  compelled  to  retreat  to  the 
wall  as  far  as  he  can  safely  do  so  under  the  circumstances 
before  he  will  be  justified  in  killing  his  adversary.  The 
danger  of  his  life  must  be  so  powerful  and  imminent  that 

91— People    V.    Lamb,    41    N.    Y.  Bush.    312;    Pridgen    v.    State,    31 

360;  Harrison  v.  State,  24  Ala.  67;  Tex.   420;   Field   v.   State,  47   Ala. 

State  V.  Scott,  2  Head.  217;  Rippy  603;   Alexander   v.   State,   25   Tex. 

V.   State,   26   Miss.  362;   Lander   v.  App.  260,  7  S.  W.  867,  8  A.  S.  E. 

State,  12  Tex.  App.  462;  Evans  v.  438;   Huddleston  v.  State,  54  Tex. 

State,    44    Miss.    762;    Phillips    v.  App.  93,  112  S.  W.  64,  130  A.  S.  R. 

Com.,    2    Duval    328;     Carrico    v.  875;   George  v.  State,  145  Ala.  41. 

Com.,  7  Bush.  124;  Young  v.  Com.,  40  So.  961,  117  A.  S.  R.  17. 
8  Bush.  481;  Bohannan  v.  Com.,  6 


518  Ceiminal  Law 

there  is  uo  other  alternative  but  to  kill  his  adversary  in 
order  to  save  it.^'^  So  where  one  by  his  own  aggression 
brings  on  a  conflict,  but  without  malice  and  an  attack 
is  made  upon  him  in  defense  thereof  is  greatly  in  excess 
of  the  original  provocation,  must  also  retreat  to  the  wall 
in  order  to  invoke  the  inile  of  self-defense,  for  the  kill- 
ing of  his  adversar}^^^  So,  if  one  brings  on  the  conflict 
for  the  purpose  of  inducing  another  to  assault  him  with 
the  view  of  creating  a  pretext  for  killing  him  and  does 
kill  him  it  is  murder  notwithstanding  he  may  have  re- 
treated to  the  wall  before  killing  him.  The  original 
transaction  being  conceived  in  malice  and  begun  with 
the  intent  of  killing,  the  whole  is  colored  with  his  ma- 
licious intent  and  extends  through  the  entire  transac- 
tion.^* But  if  he  abandons  the  fight  in  good  faith  and 
retreat  to  a  place  of  safety  and  he  is  then  pursued  by 
his  adversaiy  who  makes  a  fresh  attack  upon  him,  and 
he  is  forced  to  kill  him  in  order  to  save  his  life,  this  is 
justifiable.  In  such  a  case  the  presumption  is  that  the 
killing  is  upon  the  last  assault,  the  malice  in  the  first 
being  abandoned.  In  one  case  the  court  says:  "Where 
he  has  succeeded  in  wholely  withdrawing  himself  from 
the  conflict,  and  that  so  palpably,  as  at  the  same  time  to 
manifest  his  own  good  faith  and  to  remove  any  just  ap- 
prehension from  his  adversary,  he  is  again  remitted  to 
liis  right  of  self-defonso  and  may  make  it  effective  by  op- 
posing force  to  t'oi'ce,  and  when  all  other  nieaiis  have 
failed  may  legally,  upon  the  instincts  of  self  preservation, 
save  his  life  by  sacrificing  of  one  who  persists  in  endan- 
gering it."  ^'^    Tliis,  however,  is  opposed  by  other  authori- 

92— Com.    V.   Drew,   C8   Penn.    St.  94— ShofTer  v.  State,  15  Oliio  St. 

563;   State  v.  Bcnham,  23   la.  154,       47,  86   Am.   Dec.  470. 
92  Am.  Dec.  417.  95— Adams  v.  State,  47   111.  376; 

93— State  v.  Hill,  4  D.  &  B.  i'M;       ShofTer  v.  State,  15  Ohio  St.  47,  86 
Jlollis   V.   State,   8    Tex.    App.   020;       Am.    Dec.    470. 
GanzalcH  v.  State,  30  Tex.  App.  203, 
](')  S.  W.  978;  CunniiiKli.nn  v.  State, 
J  7  Tex.  App.  89. 


Homicide  519 

ties  which  insist  that  where  one  being  in  the  original 
wrong  however  slight  the  wrong  may  be,  yet  he  has 
transgressed  a  right  belonging  to  another  and  having 
provoked  the  necessity  for  his  ultimate  action,  cannot 
take  advantage  of  his  own  wrong  and  claim  immunity 
therefor.®^ 

§559.  Assault  upon  habitation.  One  who  is  assailed 
in  home  or  house  is  not  compelled  to  retreat  before  he 
is  justified  in  killing  his  assailant.  He  must,  however, 
resort  to  all  means  in  his  power  to  resist  and  repell  the 
attack  before  he  is  justifiable.  A  man's  home  is  his 
castle,  and  he  has  the  legal  right  to  protect  it  against 
the  unlawful  attacks  of  others.^^  He  may  stand  his  ground 
and  resist  force  for  force  and  when  he  has  exhausted 
all  means  short  of  retreating  he  may  safely  kill  his  as- 
sailant. A  stranger  has  no  legal  right  to  the  house  of 
another  unless  he  is  there  with  the  consent  of  the  owner 
and  a  mere  trespasser  may  be  ejected  and  the  owner 
may  use  all  force  necessary  to  effect  it,  short  of  killing 
him,  and  in  this  case  it  w^ill  be  manslaughter.*® 

§  560.  Attack  upon  property  other  than  habitation.  An 

attack  upon  the  property  of  another  other  than  the  habi- 
tation, will  not  reduce  a  homicide  in  defense  thereof  to 
manslaughter,  where  the  circumstances  are  such  as  to 
show  malice.**     Where  one  peaceably  trespasses  upon 

96_Stewart  v.  State,  1  Ohio  66;  note  to  Ne^vmon  v.   State,  58   Tex. 

Kemp  V.   State,   12   Tex.   App.   561.  App.   443,   126   S.  W.   578,   21   Ann. 

97_Carroll  v.  State,  23   Ala.  28,  Cas.  718. 

58  Am.  Dec.  282;  Gresher  v.  People,  98— State  v.  Patterson,  12  Am.  L. 

53  111.  295 ;  People  v.  Coughlin,  67  Keg.  N.  S.  647 ;  People  v.  Walsh,  43 

Mich.   466,   35   N.   W.   72;    State  v.  Cal.  447;  People  v.  Horton,  4  Mich. 

Peacock,   40   Ohio    St.    333;    Hor   &  67. 

Thorn,  Vol.  1,  p.  861;  State  v.  Per-  99— Harris  v.  State,  24  Ala.  67; 

kins,  88  Conn.  360,  91  Atl.  265,  L.  Com.  v.  Drew,  4  Mass.  391;  Patter- 

K.  A.  1915  A  73 ;  Brinkley  v.  State,  son  v.  State,  12  Am.  L.  Keg.  N.  S. 

89  Ala.  34,  8  So.  22,  18  A.  S.  K.  87.  647;    Hor    &    Thorn,    Self    Defense, 

A  full  collection  of  cases  are  given  Vol.  I,  p.  861. 
and  full  discussion  of  the  matter  in 


520 


Criminal  Law 


the  property  of  another  he  should  be  requested  to  desist 
by  the  owner  and  if  he  refuse  to  do  so  the  owner  may  use 
force  to  eject  him.^  The  force  shoukl  be  in  proportion 
to  the  emergency,  and  the  owner  may  not  resort  to  force 
till  a  request  is  made  to  desist.  After  such  request  it  is 
the  duty  of  the  trespasser  to  desist  and  when  he  fails 
to  do  so  he  becomes  a  wrongdoer  and  the  owner  is  guilty 
of  manslaughter  if  he  kills  him.  But  where  there  is  a 
forcible  intrusion  or  trespass  upon  the  property  of  an- 
other, other  than  the  habitation,  the  intruder  may  be 
resisted  by  sufficient  force  to  eject  him,  and  if  the  object 
of  the  trespasser  is  to  commit  a  felony  or  to  inflict  a  se- 
rious bodily  injury  upon  the  owmer  or  the  person  in  the 
rightful  enjoyment  of  the  property,  killing  him  in  its 
protection  will  be  justifiable.^ 


1 — Pierce  v.   State,  17   Tex.  App. 
232,  22  S.  W.  587. 

2— People  V.  Payne,  8  Cal.  3-il; 
McPherson  v.  State,  22  Ga.  478; 
People  V.  Rector,  19  Wend.  569; 
Lilly  V.  State,  20  Tex.  App.  1;  Peo- 
ple V.  Flannagan,  66  Cal.  2;  Roack 
V.  People,  77  111.  25.  In  the  case  of 
Beard  v.  United  States,  Justice  Har- 
lan, of  the  Supreme  Court  says 
East  in  his  pleas  of  the  Crown  says: 
"A  man  may  repel  force  for  force 
in  defense  of  his  person,  habitation 
and  proper!}-,  agJiinst  one  who  mani- 
festly intends  and  endeavors,  by  vio- 
lence or  surprise,  to  commit  a  known 
felony,  such  as  murder,  rape,  bur- 
glary, robbery,  arson  and  the  like, 
upon  cither.  In  these  cases  he  is  not 
required  to  retreat,  but  may  pursue 
liis  adversary  until  he  lias  .secured 
himself  free  from  all  danger;  and  if 
he  kill  in  so  doing  it  is  called  jusli 
fiablc  Helf-defcnso;  as  on  the  other 
liand,  the  killing  by  such  felon  in 
murder.  Hut  a  bare  fear  <if  ;iny 
of      them-      olTenHeH,      however      well 


grounded,  as  that  another  lies  in 
wait  to  take  away  another's  life — 
unaccompanied  with  any  overt  act 
indicative  of  such  intention,  will 
not  warrant  in  killing  that  other 
by  way  of  prevention.  There  must 
be  an  actual  danger  at  the  time." 
Page  271,  Foaters'  Crown  cases. 
"In  the  case  of  justifiable  self- 
defense,  the  injured  person  may  re- 
pel force  for  force  in  the  defense 
of  his  person,  habitation  or  prop- 
erty, against  one  who  manifestly  in- 
tendcth  and  endeavoreth,  with  vio- 
lence or  surjjrise,  to  commit  a 
known  felony  upon  either.  In  the 
cases  ho  is  not  required  to  retreat, 
but  may  pursue  his  adversary  till  he 
(indclli  liiniself  out  of  danger,  and, 
W  ill  a  rondict  lictween  tlicm,  lie 
iiaiqiciieth  1o  kill,  such  killing  is 
justifiable."  ("li:ii).  .1,  p.  27.3,  Bish. 
Cr.  L.,  Vol.  1,  i>.  S.'id.  "Wlicrc  an 
attack  is  made  with  murder  or  in- 
tent, there  being  suflicient  overt  :i('t, 
the  person  attacked  is  under  no  diif  v 
to  (Iv.     And  it   is  the  same  wlicic  tlic 


Homicide 


521 


§  561.  Homicide  committed  in  the  prevention  of  a  fel- 
ony justifiable.  If  A  intercedes  to  stop  a  fight  or  brawl 
between  B  and  C  and  so  announces  his  intention  to  inter- 
cede in  a  friendly  manner,  and  he  is  intentionally  killed 
by  either  B  or  C,  it  is  murder.  And  if  he  in  good  faith 
intercedes  to  prevent  a  felony  from  being  committed 
upon  either  B  or  C,  he  will  be  justified  in  using  just  such 
force  as  is  necessary  to  prevent  it,  and  if  a  homicide  is 
perpetrated  in  prevention  it  will  be  justifiable.  It  need  not 
be  an  actual  necessity  to  take  life.  It  seems,  that  if  the 
circumstances   and  accompanying  conditions   creates  a 


attack  is  with  a  deadlj'  -weapon,  for 
in  this  case  the  person  attacked  may 
well  assume  that  the  other  intends 
murder,  Avhether  he  does  in  fact  or 
not. ' '  Wharton :  "  A  man  may  repel 
force  by  force  in  defense  of  his  per- 
son, habitation  or  property  against 
any  one  or  many  who  manifestly  in- 
tend and  endeavor  to  commit  a 
known  felony  by  violence  or  surprise, 
or  either.  In  such  case  he  is  not  re- 
quired to  retreat,  but  pursue  his  ad- 
versary until  he  find  himself  out  of 
danger,  and  if  in  the  conflict  be- 
tween them  he  happens  to  kill  him, 
such  is  justifiable. ' '  2  Whart.  Cr. 
L.,  1010. 

In  our  opinion  the  court  below 
erred  in  holding  that  the  accused, 
while  on  his  premises  outside  of  his 
dwelling  house  was  under  a  legal 
duty  to  get  out  of  the  way,  if  he 
could,  of  his  assailant,  who  accord- 
ing to  one  view  of  the  evidence  had 
threatened  to  kill  him,  in  the  execu- 
tion of  that  purpose,  had  armed  him- 
self with  a  deadly  weapon,  with 
that  Aveapon  concealed  upon  his  per- 
son, went  to  the  defendant's  prem- 
ises, despite  the  warning  of  the 
latter  to  keep  aAvay,  and  by  word 
and  act  indicated  his  purpose  to  at- 


tack the  accused.  The  defendant 
was  where  he  had  a  right  to  be, 
when  the  deceased  advanced  upon 
him  in  a  threatening  manner,  and 
with  a  deadly  weapon;  and  if  the 
accused  did  not  provoke  the  as- 
sault, and  had  at  the  time  a  reason- 
able cause  to  believe,  and  in  good 
faith  believed,  the  deceased  intended 
to  take  his  life,  or  do  him  great 
bodily  harm,  he  was  not  obliged  to 
retreat,  nor  to  consider  whether  he 
could  safely  retreat  but  was  entitled 
to  stand  his  ground,  and  meet  any 
attack  made  upon  him  with  a  deadly 
weapon,  in  such  way  and  such  force 
as,  under  all  the  circumstances,  he 
at  the  moment  honestly  believed, 
and  had  reasonable  grounds  to  be- 
lieve it  was  necessaiy  to  save  his 
life,  or  to  protect  himself  from 
great  bodily  injury."  158  U.  S. 
550,  9  Am.  Cr.  Eep.  324.  People 
V.  Dann,  5*3  Mich.  490,  19  N.  W. 
159,  51  Am.  Eep.  151;  State  v. 
Moore,  31  Conn.  470,  83  Am.  Dec. 
159;  Utterback  v.  Conn.,  105  Ky. 
723,  40  S.  W.  479,  88  A.  S.  E. 
328;  Brown  v.  State,  98  Miss.  786, 
54  So.  305,  34  L.  E.  A.  (N.  S.) 
811. 


522  Criminal,  Law 

well  founded  belief  that  a  felony  will  be  committed  it  is 
sufficient.'  The  defendant  must  act  non-negligently.  To 
kill  a  person  after  he  has  escaped  (a  felony  having  been 
committed)  will  be  murder  or  manslaughter,  according 
to  the  circumstances.  It  seems  that  the  states  where 
the  stealing  of  certain  animals  is  made  a  felony,  such  as 
horses,  especially  where  the  theft  is  punished  capitally, 
the  killing  of  the  thief  while  he  is  endeavoring  to  escape 
will  be  justifiable;  but  if  the  felon  had  taken  the  horse 
and  disposed  of  it  he  would  not  be  justified  in  killing 
him.  So,  also,  if  a  forceable  robbery  is  committed  it 
seems  that  one  would  be  justified  in  killing  the  robber, 
especially  so  if  the  robbery  is  a  felony.  Upon  sound 
authority  if  a  felony  at  common  law  has  been  reduced  to 
a  misdemeanor  by  statute  a  killing  will  not  be  justifiable.* 

§  562.  The  right  of  the  members  of  the  family  to  defend 
each  other.  It  is  a  well  established  doctrine  of  the  com- 
mon law  that  the  father,  the  mother,  the  son,  the  daughter, 
the  brother,  sister,  and  others  of  kin,  were  allowed  to  de- 
fend the  others  against  the  assaults  of  third  persons.  The 
authorities  are  not  very  clear,  but  the  reason  for  this 
seems  to  have  been  because  of  the  relation  these  parties 
held  to  each  other.  There  is  also  a  doctrine  of  the  com- 
mon law,  yet  not  so  well  defined,  that  a  stranger  may 
interfere  for  the  purpose  of  defending  another  against 
the  assaults  of  a  third  party.  This  latter  was  placed  upon 
the  ground  that  the  majesty  of  the  law  must  be  upheld, 
and  the  duty  was  imposed  upon  the  citizen  to  exercise  his 
sound  judgment  in  intei'lVriiig  for  the  prevent  ion  of 
any  felony  that  may  be  al)out  to  be  committed  in  his 
presence.  The  failure  to  exercise  this  right  does  not 
seem  to  have  been,  except  in  certain  instances,  such  a 
hr(r,\c]\  of  ])ositive  hiw,  as  demanded  punisliment.  So, 
we   giitlici-   from   llu'   reason   of  the   law   that   strangers 

.1— Dell     V.     Sffitfi,     25     Ala.     IT,;  4— State  v.   Ifutliorford,  1  Hawks, 

Oliver  V.  State,   17   Ala.  587,  457  Hor.  &  Thoin.  Co.  DcfeiiHi-H  734. 


Homicide  523 

were  not  so  much  to  defend  against  the  assaults  of  an- 
other, or  to  intercede  in  the  behalf  of  another,  as  it  was 
his  duty  and  his  right  to  interfere  to  prevent  a  felony 
or  any  breach  of  the  peace  and  to  maintain  good  order 
in  the  community.  Yet  we  find  authorities  maintaining 
that  a  stranger  may  defend  another  where  such  per- 
son might  have  defended  himself.  There  is  no  ques- 
tion that  this  is  true  as  to  the  father,  son,  mother,  daugh- 
ter, brother,  sister  and  husband  and  wife  (at  common 
law),  the  servant  and  the  master,  and  that  each  of  these 
might  defend  for  the  other  where  he  might  defend  for 
himself.^  The  distinction  again  is  noticed,  the  law  recog- 
nizing the  higher  obligations  due  from  each  of  these 
classes  of  persons  to  the  others,  by  reason  of  their  rela- 
tionship wisely  permitted  the  one  to  defend  for  the  other. 
Thus  any  of  these  persons  seeing  or  knowing  that  any 
of  them  are  engaged  or  about  to  be  engaged  in  a  fight, 
the  law  does  not  require  them  to  consider  who  is  the 
aggressor  if  the  person  occupies  the  relationship  as  here- 
in indicated  if  at  the  time  it  appears  to  him  that  some 
great  bodily  injury  or  death  will  be  inflicted  upon  such 
person,^  If,  however,  he  knows  that  the  person  he  is 
defending  is  in  the  wrong  he  will  not  be  permitted  to 
offer  self-defense  for  his  acts,  because  the  law  will  not 
permit  him  to  defend  w^here  the  other  could  not.  The 
fact  that  the  one  had  forfeited  his  right  to  self-defense 
by  his  acts  if  unknown  to  the  other  is  immaterial.     By 

5 — Campbell  v.  Com.,  88  Ky.  402,  defend   for   himself.      See   following 

21  Am.  St.  Eep.  348;  Estep  v.  Com.,  cases    bearing    upon    the    question: 

86  Ky.  39,  9  Am.  St.  Eep.  260 ;  Shu-  Crawford  v.  State,  96  Ga.  701,  17  S. 

mate  v.  State,  38  Tex.  App.  266.  E.  620,  35  A.  S.  E.  535;   People  v. 

6— Ross  V.  Com.   (Ky.),  58  S.  W.  Cook,   39   Mich.    236,   33    Am.    Eep. 

89;   State  v.  Hickman,  95  Mo.  322,  380;  Patten  v.  People,  18  Mich.  314, 

6  Am.  St.  Eep.  54;  Standley  v.  Com.,  100  Am.  Dec.  173;  State  v.  Turner, 

86  Ky.  440,  9  Am.  St.  Eep.   305,  6  246   Mo.  598,   152  S.  W.   313,  Ann. 

S.  W.  156.     This  case  contends  that  Cas.    1914  B,   451,   see    13    Am.   cas. 

a  brother   may   not   defend   for  the  note  1055. 
brother  where  that  brother  may  not 


524  Criminal  Law 

some  authorities  this  is  denied.  The  stranger  who  in- 
terferes in  the  fight  of  another  is  required  at  his  peril 
to  ascertain  for  himself  that  he  is  not  the  aggressor. 

§  563.  Degree  of  force  used.  When  one  is  attacked,  he 
may  employ  just  such  force  as  is  necessary  to  repel 
the  attack  and  no  more;  and  if  in  return  for  the  attack 
the  assailed  uses  force  greatly  in  disproportion  to  the 
assault  made  upon  him,  he  then  becomes  the  aggressor, 
and  if  in  hot  blood  kills  his  adversaiy,  he  will  be  guilty 
of  manslaughter.  So,  also,  in  case  of  mutual  combat 
between  A  and  B,  and  A  presses  B  to  the  wall  and  B 
kills  him  this  is  mani^laughter.''  But  if  B,  after  retreat- 
ing in  good  faith  as  far  as  he  can,  A  pursuing  him,  dan- 
ger being  imminent  and  threatening,  and  reasonable  that 
serious  bodily  injury  will  be  inflicted  on  him  can  safely 
kill  A. 

§  564.  Nonfelonious  assaults.  Where  a  nonfelonious 
assault  is  made  upon  another  the  person  assailed  has 
no  right  to  resort  to  extreme  means  in  repelling  the 
attack.    If  lie  does  he  then  in  turn  becomes  the  aggres- 

7 — People  V.  Adams,  47  111.  37G,  liiw  justly  limits  liis  rifilit  of  self 
State  V.  Isooe,  25  Tex.  74.  A  ])cr-  di't'oist',  ami  roj^ulatos  it  aecord- 
fect  self  defense  can  only  obtain  inj^  to  the  magnitude  of  his  own 
and  avail  where  the  party  pleading  wrong."  Reed  v.  State,  14  Tex. 
it  acted  from  necessity  and  was  App.  500.  If  the  original  wrong  of 
wholly  free  from  wrong  or  blame  the  defendant  was  or  wonld  have 
in  causing  or  producing  the  nccos-  been  a  niisdcnioanor,  the  homicide 
frity  which  required  his  action.  If,  growing  out  of,  or  occasioned  by  it, 
liowever,  he  was  in  the  wrong  if  though  in  self-defense  from  an  as- 
ho  was  himself  violating,  and  in  the  sault  made  upon  him,  would  bo  man- 
act  of  violating,  the  law,  and  on  slaughter  if  committed  under  tlic 
account  of  his  own  wrong  was  jilaced  immediate  influence  of  sutMcn  pas- 
in  a  position  where  it  became  noces-  sion  arising  from  an  adequate  cause, 
sary  for  him  to  defend  liimsclt'  such,  for  itistaiu-e,  as  anger,  rage, 
against  an  attack  in.iilr  ii|i()ii  liim  tcnur,  or  resentment."  Speannan 
self  wliich  was  su|)erinduccd  ;is  v.  State,  'J.T  Tex.  A]ip.  214,  4  S.  W. 
created   liy  liis  own   wrong,  then   the  .'")H(i. 


Homicide  525 

sor.*  If  the  assaulting  party  accompanies  his  assault 
with  threatening  gestures,  indicating  an  intention  to  do 
the  assailed  an  injury,  he  is  justified  in  resorting  to  force 
to  repell  the  attack.  He  is,  however,  held  to  a  strict 
caution  in  not  stepping  beyond  the  necessities  of  the 
case.  If  the  assault  is  of  a  felonious  character  he  may 
according  to  the  circumstances  resort  to  severer  meas- 
ures. A  person  assaulted  is  not  required,  in  order  to 
preserve  his  right  of  self-defense,  to  wait  till  a  threat- 
ened battery  is  actually  made  upon  him  before  he  be- 
gins to  ward  off  the  injury  threatened.®  Where  the 
party  making  the  assault  is  greatly  superior  in  strength 
to  the  party  assailed  this  will  not  justify  him  in  resort- 
ing to  a  knife  and  to  stab  the  assailant.  He  is,  however, 
entitled  to  resort  to  a  greater  force  than  he  would  if 
their  relative  physical  prowess  were  equal  or  nearly  so. 
Care  in  all  cases  is  enjoined  that  resistance  to  the  attack 
does  not  exceed  the  bounds  of  defense.^** 

§  565.  Wrongful  act  contributing  to  necessity  to  kill. 

It  is  not  every  wrongful  act  of  the  accused  which  con- 
tributes the  necessity  for  him  to  take  life  in  order  to 
preserve  his  own  that  cuts  off  his  right  of  self-defense. 
Thus  as  we  have  seen  in  a  preceding  page  where  he 
brings  on  a  conflict  nonfelonious  in  its  character,  the 
assailed  is  not  authorized  to  repell  the  attack  by  means 
deadly  in  its  nature  or  by  force  greatly  in  excess  of  that 
of  the  assault.  If  by  reason  of  the  excess  of  force  the 
attacking  party  is  forced  to  the  wall  he  will  be  justified 
if  he  killed  to  protect  his  life.  But  if  the  nature  of  the 
attack  in  the  first  instance  is  felonious,  or  in  other  words, 
will  result  in  death  or  serious  bodily  injury,  or  likely  to 
do  so,  and  the  assailed  forces  the  assailant  to  the  wall 

8— state    V.    Waggoner,    33    Ind.  9— State    v.     Stockton,    25     Tex. 

533;   Fislier  v.  Bridges,  4  Blatchf.  777;   State  v.  Mitchell,  41  Ga.  537. 

548;    State  v.  Morgan,  3   Ired.  186  10— State    v.    Bruwoll,    63    N.    C. 

(N.  C),  38  Am.  Dec.  714.  561. 


526  Ceiminal  Law 

and  he  kill  hini,  then  he  is  not  entitled  to  his  self-defense. 
So,  in  keeping-  with  this  rule,  the  adulterer,  who  by  his 
own  wrongful  act — the  adultery  with  the  deceased's 
wife,  is  not  entitled  to  right  of  self-defense,  where  he 
kills  the  husband  in  defense  to  the  attack  of  the  husband, 
who  attempts  to  kill  him  for  the  adultery.^^  At  the  com- 
mon law  the  husband  detecting  the  wife  in  the  act  of 
adultery,  was  guilty  of  manslaughter  only  if  he  kill  her; 
and  so  if  he  kill  the  paramoor.^^  But  under  the  law  of 
Georgia,  where  the  right  of  the  husband  to  kill  the  se- 
ducer of  his  Avife  in  the  act  of  adultery  with  her  is  justi- 
fiable homicide,  it  has  been  held  tliat  if  the  husband  has 
known  of  the  illicit-  relation  between  the  wife  and  her 
paramoor,  and  after  the  adultery  deliberately  lays  a 
trap  for  the  puipose  of  catching  them  in  the  act  of  adul- 
tery in  order  that  he  may  create  the  act  for  the  justifica- 
tion of  killing  the  paramoor,  the  paramoor  killing  the 
husband  in  the  protection  of  himself,  is  entitled  to  his 
right  of  self-defense." 

§  566.  Retreat  and  pursuit.  The  right  to  retreat  and 
kill  one  who  pursues  depends  upon  the  right  to  pursue. 
If  A  brings  on  a  conflict  with  B  and  makes  a  felonious 
assault  upon  him,  but  abandons  the  conflict  in  good  faith, 
and  the  circumstances  clearly  indicate  his  abandonment 
and  his  intention  to  quit  the  fight,  and  so  retreats,  upon 
principle  B  being  out  of  danger  or  the  np))rehension  of 
danger  of  a  felonious  nature  is  bound  to  check  his  pur- 
suit, for  there  is  no  necessity  for  the  defense  to  his  per- 
son. Such  being  the  circumstances  of  the  case  he  pur- 
sues in  a  murderous  assault  upon  A,  A  having  retreated 
as  far  as  he  can  and  there  being  no  way  to  escape  the 

11— D;it)noy  v.  Htate,  li:5  Alii.  ;!8,  12— Slate  v.    Ilcnvll,    10    Am.   St. 

59    Am.    St.    Kcp.    92,    21    So.    211;  294,    97    Mo.    Id.''),    also    ca.scs    citiMl 

McNeil   V.   State,    102   Ala.    121,   48  in  note  1. 

Am,    St.   Rep.    17,   and   note    15   So.  13 — Wilkcrson    v.    State,    91     (Ja. 

.352;   State  v.  Samuel,  04   Am.  Dec.  729,   44    Am.    St.    U,],.    03. 
590,  3  Jones  L.  74. 


Homicide  527 

danger  to  his  life  may  safely  kill  B.  B  has  the  right  to 
pursue  as  long  as  A's  intention  is  to  continue  the  fight, 
but  when  this  intention  is  abandoned  his  right  to  pursue 
ceases.  At  the  point  where  A  repents  and  the  circum- 
stances show  that  he  has  acted  upon  it,  B's  right  to  pur- 
sue also  ceases.^*  The  right  of  pursuit  is  dependent 
upon  the  appearances  as  they  are  presented  to  the  ac- 
cused. If  the  circumstances  would  cause  a  reasonably 
and  cautious  and  prudent  man  to  believe  that  the  fight 
had  been  abandoned,  then  he  must  stop  the  pursuit.^^ 
Where  the  pursuer  has  been  by  the  wrongful  act  of  his 
adversary  rendered  incapable  of  knowing  that  the  fight 
has  been  abandoned,  he  is  not  remitted  to  his  right  of 
self-defense;  as  where  the  act  of  the  defendant  had  had 
the  result  of  depriving  his  pursuer  of  his  reason,  and 
thereby  had  no  power  of  knowing  that  the  fight  had 
been  abandoned,  it  was  held  that  he  was  not  entitled  to 
his  self-defense,  notwithstanding  the  facts  were  suffi- 
cient to  show  that  he  had  abandoned  the  fight  in  good 
faith.  Some  of  the  authorities  go  so  far  as  to  hold  th:; 
where  the  defendant  assails  another  with  a  deadly 
weapon  he  must  fairly  notify  his  antagonist  that  he  has 
abandoned  the  fight;  and  if  the  circumstances  are  such 
that  he  cannot  inform  him,  it  is  his  fault  and  that  he 
must  take  the  consequences.  This  is  in  keeping  wdth 
the  maxim  of  the  law  "that  a  man  must  first  do  equity 
before  he  is  entitled  to  it."  ^^ 

§  567.  Spring"  gnns.     The  rule  of  the  common  law  is 
as  we  have  in  other  parts  of  this  work  explained,  justi- 

14— Evans    v.    State,    33    Ga.    4;  15— Stoffer  v.  State,   15  Ohio  St. 

People   V.   Button,    105    (Cal.)    628,  47,    86    Am.    Dec.    470;     State    v. 

46    Am.    St.    Rep.    259;    Palmer    v.  Podges,   18   Kans.   78,  26   Am.   Rep. 

State,  9  Wyo.  40,  87  Am.  St.  Rep.  754;   People  v.   Button,  46  Am.   St. 

910,  59  P.  793;   Stoffer  v.  State,  15  Rep.  259. 

Ohio  St.  47,  86  Am.  Dee.  470;  John-  16— State  v.  Smith,  10  Nev.  106; 

son  V,  State,  58  Ark.  57,  23  S.  W.  People  v.  Hecker,   109  Cal.  451,  42 

7;  People  v.  Simons,  60  Cal.  72.  P.    307. 


528  CrijMINal  Law 

fied  tlie  killing  another  for  making  an  assault  upon  the 
home  or  the  castle  for  the  puipose  of  injuring  another 
person  therein.    It  also  justified  the  killing  of  one  in  the 
act  of  committing  a  felony  in  the  prevention  thereof. 
The  felony,  however,  Avherein  this  justification  was  per- 
mitted was  of  those  which  were  of  a  forcible  nature, 
such   as  murder,  mayhem  and  the  like,  rape,  robbery 
and  burglary.    For  the  last  of  these,  to  kill  the  burglar 
was  justified  upon  the  theoiy  that  the  crime  combined 
both  the  assault  upon  the  home— the   dwelling  house, 
and  the  consequent  disturbance  of  the  inhabitants,  and 
the  trespass  upon  the  property.     At  the  common  law 
the  killing  of  another  in  the  protection  of  his  property 
was  never  justified  where  that  property  w^as  other  than  a 
home.    It  is  to  be  noted  that  the  reason  for  the  doctrine 
was  founded  upon  the  inalienable  right  to  protect  one- 
self from  assault  upon  his  person  and  his  dwelling  house. 
In  the  application  of  the  doctrines  herein  set  out  the 
English  courts  at  a  very  early  date  held  that  as  a  mat- 
ter of  law  one  setting  a  spring  gun,  or  other  destruc- 
tive engine  capable  of  inilicting  death  or  great  bodily 
harm  for  the  purpose  of  preventing  the  burglary  of  his 
goods,  and  thereby  killed  one  attempting  the  burglaiy 
was  justified.    Up  to  a  few  years  ago  this  seems  to  have 
been  the  rule  in  the  American  states.     There  are  a  few 
cases,  however,  opposing  this  view  and  holding  Hint  the 
matter  is  at  least  of  mixed  law  and  fact,  and  that  the 
jury  should  determine  from  the  facts  both  the  intent 
willi  which  the  guns  were  set,  and  also  the  right  and  the 
necessity  of  the  defendant  to  set  the  guns  or  engines  for 
the  protection  of  his  jji-operty.     We  are  impressed  with 
the  justice  and  the  humanity  of  these  dissenting  courts, 
and  we  believe  tliat  the  doctrine  hoc  announced  is  sup- 
ported by  the  principles  of  the  hiws  of  homicide."    The 
rule  of  tlic  English  courts,  succinctly  stated,  justified  the 

17_Htiit<'     V.     Jlarr,      11      W.-isli.       Aidridi   v.  State,  53   N.  11.   ;J'J8,   IG 
481,  48   A.   H,  K.   SW,  30   P.    1080;        Am.  Hop.  339. 


Homicide  529 

killing  by  the  means  of  the  spring  gun  during  absence 
of  the  owner  if  the  killing  would  have  been  justified  if 
the  defendant  had  been  there  in  person  and  did  the  deed." 

ASSAULTS  TO  MURDER 

§  568.  Misdemeanors  at  common  law.  The  statutes  of 
the  several  states  contain  many  different  provisions  con- 
cerning assaults  of  an  aggravated  nature;  such  as  as- 
saults with  intent  to  kill,  assaults  to  murder,  the  ad- 
ministration of  poisons  with  the  intent  to  kill  or  mur- 
der, assault  with  intent  to  commit  rape,  and  many  oth- 
ers, a  full  description  of  which  may  be  obtained  by  tak- 
ing a  look  into  the  statutes.  An  assault  upon  another, 
which  resulted  in  the  death  of  the  party  assailed,  was 
at  the  common  law  either  murder  or  manslaughter. 
These  were  felonies;  but  all  other  assaults  were  misde- 
meanors, and  if  the  assault  was  attended  with  a  felon- 
ious intent,  the  intent  had  the  effect  of  aggravating  the 
offense,  and  were  known  as  assaults  of  an  aggravated 
nature,  being  high  misdemeanors,  and  was  pmiished 
sometimes  very  severely.  But  where  the  assaults  were 
of  a  less  aggravated  nature,  the  punishment  inflicted 
was  apportioned  to  the  gravity,  and  was  very  slight  as 
in  the  fonn  of  simple  assault  and  battery.  Hence,  all 
assaults  to  commit  murder  was  at  common  law  misde- 
meanors. Death  inflicted  at  common  law,  whatever  the 
means  used  and  the  manner  of  inflicting  it,  neither  les- 
sened nor  increased  the  amount  of  the  punishment,  but 
the  manner  and  sometimes  the  means  have  been  so  re- 
volting, that  the  legislatures  have  sought  to  make  at- 
tempts at  death,  or  assaults  to  kill,  with  intent  to  mur- 
der, with  certain  means,  as  more  reprehensible  than  the 
same  thing  attempted  by  other  less  shocking.  Such  as 
the  attempt  to  administer  poison,  to  assault  an  officer 
of  the  United  States,  is  made  more  reprehensible  than 

18—1    Hor.    &    Thomp.    Cr.    479,       sou  v.  State,  59  Ala.  1,  31  Am.  Rod. 
83  Am.  Dec.  159,  and  note:     Sinip-       1,  see  note  15  Am.  Cas.  584 
C.  L.— 34 


530  Criminal  Law 

other  persons,  for  the  reason  we  suppose,  because  an 
ofi&cer  ought  not  to  be  hindered  in  the  discharge  of  his 
official  duties.  Hence,  because  of  the  different  wordings 
of  these  statutes,  curious  questions  have  arisen. 

§  569.  As  to  the  intent.  The  general  rule  is  that  if  the 
assault  was  made  with  the  intent  to  kill,  but  for  some 
reason  failed  it  then  would  be  an  assault  with  intent  to 
murder,  if  it  had  been  murder  if  the  killing  had  actually 
occurred.^®  This  is  the  rule,  in  attempts  to  commit 
crimes  in  general — that  there  must  be  a.  specifical  intent 
to  commit  the  crime  in  full.  If  a  blow,  actuated  by 
malice,  or  under  such  circumstances  as  malice  may  be 
presmned,  is  directed  to  A  with  intent  to  kill  him,  and 
for  some  cause  unlooked  for  it  falls  upon  C,  the  killing 
of  C  is  murder,  notwithstanding  the  intent  was  to  kill 
A  only.  Now  the  question  has  arisen  in  the  application 
of  this  rule,  whether  an  assault  to  murder  can  be  predi- 
cated upon  the  wound  inflicted  upon  C,  there  being  no 
intent  to  kill  liim.  There  are  conflicting  authorities 
along  this  line,  but  the  weight  of  the  adjudications  is 
believed  to  be  with  the  affirmative.^"  The  question  has 
also  arisen,  when  under  the  terms  of  the  statute  murder 
is  divided  into  two  or  more  degrees,  and  a  specific  intent 
to  kill  is  necessary  to  constitute  murder  in  the  first  de- 
gree, whether  if  the  blow  killed  C  it  would  be  of  the 
same  degree  as  if  A  had  been  killed,  that  is,  murder  in 
the  first  degree;  and  whether  if  the  blow  intended  for  A 
had  fallen  upon  C,  but  had  not  killed  him,  this  would 
constitute  an  assault  to  murder  C.  As  to  the  former,  it 
has  been  hchl  1h;it   the  killing  C  by  mistake  would  be 

19— Hall    V.    state,    9    Fhi.    2(i:] ;  1357,  69  Me.  1C3 ;  Perry  v.  People,  14 

Htate    V.    NicholdH,    8    Conn.    49G;  111.  49G;   Vandormark  v.   People,  47 

Nancy   v.  State,   6   Ala.   483;    State  111.    122;    State   v.   McadowH,   18  W. 

V.  .lohnHon,  4  Mo.  618;   Sutchiffo  v.  Va.    6.')8;    Dunaway   v.    People,    110 

State,  18  Oliio  469,  51  Am.  Dec.  459.  la.  XV.i,  51   Am.  Kep.  686;   McGehee, 

20— Gilman  v.  State,  :'.l   Am.  Kep.  52  Am.  I{cp.  209,  62  Mi&s.  772. 


Homicide  531 

murder  in  the  second  degree.^^  As  to  the  latter,  the 
writer  has  not  found  an  adjudication  that  covers  the 
precise  question.  An  assault  with  a  deadly  weapon,  but 
from  the  use  of  which  no  death  results,  does  not  raise 
the  presumption  of  an  intent  to  kill,  but  the  fact  that 
one  shoots  at  another  with  a  pistol  is  very  strong  proof 
that  he  intended  to  kill.  ''When  a  specific  intent  is 
required  to  make  an  act  an  offense,  the  doing  of  the  act 
does  not  raise  a  presumption  that  it  was  done  with  the 
specific  intent."^ 

21 — Bonfonti    v.    State,    2    Minn.  21   Am.   Eep.   152;    People   v.   Mise, 

123;    Pruet   v.   State,  20   Tex.   App.  80  Cal.  42,  22  P.  80;  Scott  v.  State, 

129;    McCullough  v.   State,   24  Tex.  49  Ark.  156;   State  v.  Hickman,  95 

App.  125;   Woods  v.  State,  27  Tex.  Mo.  322,  6  Am.  St.  Eep.  54;  Steffy 

App.    393 ;     Bratton    v.    State,    10  v.  People,  130  111.  98,  22  N.  E.  861 ; 

Hump.  103.  Maher  v.   People,   10   Mich.   212,   81 

22— Patterson  v.  State,  85  Ga.  131,  Am.  Dec.  781. 


CHAPTER  XXXI 


LARCENY 


§  570.  Definition  and  description. 
§  571.  At  the  common  law  the  prop- 
erty must  not  savor  of  the 

soil. 
§  572.  Severing    from    the    soil    and 

aspotation  at  the  same  time 

is  not. 
§  573.  Wild  animals  at  the  common 

law  was  not  subject  to. 
§  574.  At  common  law  dogs  and  cats 

were  not  subject  to. 
§  575.  Choses  in  action,  at  common 

law  not. 
§  576.  Further  discussion. 
§  577.  Of  the  title  and  possession  of 

propei-ty. 
§  578.  One  with  the  bear  possession 

of  property  not  a  bailee. 
§  579.  Conversion  of  property  after 

term  of  bailment,  is. 
§  580.  Larceny    of    goods    of    a    de- 
ceased   person    laid    in    the 

administrator. 
§  581.  Eule  as  to  lost  property. 
§  582.  Allegation   of  property   when 

in  corporation. 
8  583.  Acfjuiring  the  possession  of 
property  by  trick  or  fraud. 
§  584.  Larceny  wherfe  the  property  is 
delivered  for  a  special  pur- 
pose. 


Wife's  possession. 

Larceny  involves  two  ques- 
tions of  possessions. 

Where  one  has  the  right  and 
the  title  to  the  property. 

Property  need  not  be  taken 
Lucri  Causa. 

No  repentance  is  a  defense. 

Rule  in  estimating  the  value 
of    property. 

Rule  as  to  minors  and  de- 
ceased person. 

As  to  the  consent,  etc. 

Entrapping  the   thief. 

Of   the   attempt. 

RECEIVERS. 

Substantive  offense. 

English  statutes. 

The  receiver  neod  not  have 
the  actual  manual  posses- 
sion of  property. 

Receivers  need  not  intend  to 
acquire  an  interest  in  the 
property. 

Stolon      goods      ri'slori'd      to 
owner. 
COO.  English  Statutes. 
601.  Theft   bote. 


§585. 
§586. 

§587. 

§588. 

§589. 
§  590. 

§591. 

§592. 
§593. 

§594. 


595. 
596. 
597. 


§598. 


599. 


§570.  Definition  and  description.  J.arceiiy  is  the 
frainlulont  taking  and  carrying  away  of  personal  prop- 
erty belonging  to  anotlier,  from  his  jiosscssion,  or  from 
tli(!  possession  of  some  pprsoii  holding  llic  same  for  him, 
willioiif   his  coiisciit,  and  with   the  inlcnl   1o  dcpriN'e  the 

532 


Larceny  533 

owner  of  the  value  of  the  same,  and  to  appropriate  it 
to  the  benefit  of  the  person  taking.*  The  crime  consists 
of  the  following  elements:  1.  The  taking  with  a  fraudu- 
lent intent.  2.  Must  be  taken  from  the  o\vner  or  from 
some  person  holding  the  same  for  him.  3.  The  property- 
must  be  personal  property.  4.  The  property  must  be 
taken  with  the  fraudulent  intent  to  deprive  the  owner 
of  its  value.  5.  Must  be  taken  with  the  intent  to  appro- 
priate the  property  or  its  value  to  the  taker's  benefit. 
6.  The  property  must  be  carried  away.^ 

OF  THE  PROPERTY 

§  571.  At  the  common  law  the  property  must  not  savor 
of  the  realty.  Only  personal  property  is  capable  of  be- 
ing stolen.  Personal  property  may  be  defined  as  any 
movable  material  substance,  capable  of  being  handled. 
At  the  common  law  chattels  real  were  not  subject  of  lar- 
ceny. The  rule  was  that  the  chattel  real  must  be  severed 
from  the  realty,  and  permitted  to  remain  in  that  condition 
for  a  period  of  time  supposed  to  be  sufficient  to  give  the 
property  the  character  of  personalty.  No  precise  time 
appears  to  have  been  agreed  upon,  but  the  act  of  tak- 

1 — House  V.  State,   19   Tex.   App.  to   his   the   taker (s),   own   use,   and 

277;    Harris  v.  State,  22  Tex.  App.  make  them  his  own  property.     This 

670,  3   S.  W.  477.  defective    in    not    stating   Avhat    the 

2 — 4    Bla.    Com.    230;    3    Coke's  definition    is    of    felonious,    in    this 

Inst.,  107 ;  State  v.  South,  28  N.  J.  definition  is.   It  may  be  explained  to 

L.  28,  75  Am.  Dec.  456;   CroweU  v.  mean  that  there  is  no  color  of  right 

State,   24   Tex.   App.   404,    6   S.   W.  or  excuse  for  the  act,  and  the  intent 

318.      See    12    Am.    &    Eng.    Encly.  must  be  to   deprive  the   owner,   not 

LaAV,   p.    761:      "The    definition   of  temporarily,  but  permanently  of  his 

larceny  said  Baron  Parke,  are  none  property."    People    v.    Hoban,    249 

of    them    complete.      Mr.    East's   is  111.  303,  88  N.  E.  806,  16  Ann.  Cas. 

the   most   complete,   but   that  wants  226,    22    L.    R.    A.    (N.    S.)    1132; 

some  little  explanation.     His  defini-  Adams  v.  Com.,  153  Ky.  88,  154  S. 

tion   is:     The    wrongful   or    fraudu-  W.  381,  44  L.  R.  A.   (N.  S.)  637,  1; 

lent  taking  and  carrying  away,  by  Black   v.   State,   83    Ala.   81,  3    So. 

any   person,    of    the    mere    personal  814,  3  A.  S.  R.  691;  State  v.  Powcl, 

goods   of  another,   from   any   place,  103  N.  C.  421,  9  S.  E.  627,  14  A.  S. 

with  felonious  intent  to  convert  them  R.    821,    4    L.    R.    A.    291. 


534  Cbiminal  Law 

ing  and  carrying  away  must  have  been  at  a  different 
time  from  that  of  the  severing  the  thing  from  the  soil. 
But  a  moment  or  an  instant  of  time  seems  to  have  been 
enough  to  change  the  character  of  the  thing  severed.  In 
the  absence  of  statutes,  this  rule  is  generally  adhered  to 
in  the  several  jurisdictions.  The  modem  authorities  sup- 
port the  doctrine  that  the  aspotation  at  the  time  of  the 
detaching  of  the  thing  is  theft,  if  it  is  done  with  a  feloni- 
ous intent.  The  following  instances  may  partially  illus- 
trate the  character  of  the  property  that  comes  within 
the  rule.  Thus  trees  previously  severed,^  or  felled;  tur- 
pentine which  has  flowed  out  into  the  troughs  made  to 
catch  it  as  it  flows  from  the  trees,  and  in  a  state  that  it 
may  be  dipped  out;*  doors,  windows,  blinds  and  lead 
pipe  fixed  to  a  building,  belts  connecting  machineiy  in 
mills  and  the  like  are,  when  severed,  subject  to  acts  of 
larceny.^  So,  also,  a  key  in  a  door,  brass  on  a  tombstone, 
but  a  gold  nugget  which  had  been  dislodged  from  its 
vein  is  said  to  savor  of  the  soil,  and  is  not  subject  to 
theft.« 

§  572.  Severing  from  soil,  and  aspotation  at  the  same 
time,  is  not  larceny.  AMiere  the  defendant  was  indicted 
for  grand  larceny  in  detaching  and  appropriating  four 
chandeliers  from  a  gas  pipe  into  which  they  had  been 
screwed,  and  attached  to  the  ceiling  of  the  prosecutor's 
house,  the  court  used  the  following  langmige:  "If  we 
adhere  to  the  common  law  rule,  it  will  bo  found  that 
fixtures,  when  they  are  attached  to  the  freehold  or  savor 
of  tlie  realty,  cannot  be  made  the  subject  of  larceny 
whcii  severed  and  carried  away  by  one  continuous  act. 
When  dctennining  the  ])r()porty  taken  was  a  part  of  the 
realty,  or  incre  personal  ciialtcl,  tlie  test  seems  to  have 

3_Stato   V.    I'.irk.T,   'M    Ark.    ]r)S,  If).';  Il.-irjrcr   v.   Stntc,    1    Ton.    App. 

.36  Am.  Kop.  .">.  20. 

4 — Htnto  V.   .Moore,   11    Ircd.  70.  (1  llo.skiii    v.    'I'crr.iiicc,    .'{5    Am. 

5— Jackson  v.  Htato,   11   Ohio  St.  Dec.  T29,   .'5   Blatchf.   417. 


Larceny  535 

been,  would  the  property  alleged  to  have  been  stolen 
have  passed  from  the  owner  to  the  vendee  upon  a  con- 
veyance of  the  freehold?  At  the  common  law,  things 
real  or  things  that  savored  of  the  realty,  could  be  con- 
verted by  the  thief  into  personalty,  if  after  detaching 
them  he  left  them  on  the  soil  of  the  owner,  for  a  moment 
of  time  merely,  and  returning,  carried  them  off;  but  if 
left  in  the  hands  of  the  thief  until  he  leaves  the  premises, 
it  is  part  of  the  premises.  There  is  little  reason  for  the 
rule,  and  modem  authorities,  instead  of  following  the 
common  law  on  the  subject,  apply  it  only  to  things  aris- 
ing out  of  or  growing  upon  the  land  and  such  as  adheres 
to  the  freehold,  but  not  to  personal  chattels  constructive- 
ly annexed  thereto.  The  chandeliers  having  been  tem- 
porarily placed  in  the  building  for  the  use  of  the  tenant, 
the  detaching  them  constituted  theft  of  them."  '' 

§  573.  Wild  animals  at  common  law  was  not  subject 
to  larceny.  Wild  animals,  in  a  state  of  nature,  ferae 
naturae,  are  Nulius  bona,  no  one's  property,  and  at  the 
common  law  were  not  subject  to  larceny  for  the  reason 
that  in  such  a  state  they  belonged  equally  to  all  of  the 
community,  and  the  first  reclaiming  them  from  their  wild 
and  natural  state  acquired  a  specific  property  in  them  to 
the  exclusion  of  all  other  persons.^  This  rule  is  appli- 
cable to  all  kinds  and  character  of  wild  and  unreclaimed 
animals,  fowls,  birds  and  fishes  in  public  waters,  which 
were  good  for  food  when  reclaimed  and  became  actually 
under  the  control  of  the  captor.  In  order  to  acquire  this 
specific  interest  in  the  property  it  was  or  is  not  necessary 

7— Smith   V.   Com.,    29    Am.    Rep.  S.)    965;    State    v.    Fox,    83    Conn. 

402,   77   Ky.    14   Bush.   31;    Guthrie  286,  76  Atl.  302,  19  Ann.  Cas.  682. 

V.  Jones,  108  Mass.  191;   Jarechi  v.  See  49  L.  K.  A.  (N.  S.)  965. 
Philharmonic   Society,  21   Am.  Eep.  8 — Com.     v.      Bocman,      8      Gray 

78,  79  Pa.  St.  403;   State  v.  Klink-  (Mass.)  497;  State  v.  Krider,  78  N. 

enberg,  76  Wash.  466,  136  Pac.  Ann.  C.  481;  Warren  v.  State,  1  la.  106; 

Cas.  1915  D,  468,  49  L.  E.  A.    (N.  Haywood  v.  State,  41  Ark.  479. 


536 


Criminal,  Law 


to  so  confine  them  as  to  preclude  their  escape  under  any 
circumstances.  A  confining  which  reduces  them  to  actual 
possession,  where  they  may  be  readily  reached,  will  be 
a  sufficient  reclaiming  to  subject  him  who  steals  them 
to  the  penalties  of  larceny.®  Thus  bees  in  a  liive,  fish 
in  a  private  pond  or  in  waters  owned  by  another,  deer 
in  a  park,  rabbits  in  a  warren,  become  the  property  of 
those  who  capture  them  and  so  confine  them,  and  the 
taking  of  them  by  another,  animus  furandi,  is  larceny.*® 

§  574.  At  common  law  dogs,  cats,  songbirds,  ferrets, 
not  subject  to  larceny.  The  general  rule  at  the  common 
law  was,  that  wild  animals  and  wild  fowls  and  the  like, 
should,  after  reclamation,  be  fit  for  food,  in  order  to  be 
subject  in  the  hands  of  the  captor  to  larceny."  To  this 
there  appears  to  have  been  an  exception  in  the  case  of 
songbirds  and  hawks.  There  was  a  class  of  wild  ani- 
mals, although  easily  domesticated,  not  being  good  for 
food,  was  not  subject  to  larceny,  such  as  ferrets,  coons, 


9 — "Where  tlic  animals  or  other 
creatures  are  not  domestie,  but  ferae 
naturae,  larceny  may,  notwithstand- 
ing, be  committed  of  them,  if  they 
are  fit  for  food  for  man,  and  dead 
and  reclaimed  (and  known  to  be  so) 
and  confined.  '1  hus  fish  in  a  tank 
or  net,  or  as  it  seems,  in  any  other 
enclosed  place  which  is  private  prop- 
erty, and  where  they  may  be  taken 
at  any  time  at  the  pleasure  of  the 
owner,  the  taking  of  them  with  felo- 
nious intent  will  be  larceny."  'J 
HuHsel  on  rriines.  State  v.  Sli;iw, 
flO  L.   R.   A.   481. 

10 — In  the  case  of  State  v.  Shaw, 
fin  L.  R.  A.  481,  "The  trial  judge 
HeeniH  to  have  directed  the  .jury  to 
return  a  verdict  of  not  guilty  on  the 
theory  that  the  fish  should  liave  been 
confined  ho  that  then?  was  no  jios- 
Hibility    of    escajie.     We    think    this 


doctrine  is  both  unnecessarily  tech- 
nical and  erroneous.  For  example, 
bees  in  a  hive  may  be  the  subject  of 
larceny,  yet  it  is  possible  for  the 
bees  to  leave  the  hive  at  the  same 
place  at  which  they  entered.  To 
acquire  a  property  right  in  animals 
ferae  naturae,  the  pursuer  must 
bring  them  into  liis  power  and  con- 
trol, and  so  maintain  his  control  as 
to  show  that  he  does  not  intend  to 
abandon  them  again  to  the  world  at 
large."  Sec  following:  Magner  v. 
I'.'ojile,  97  111.  320;  State  v.  Gcer, 
1.1  L.  R.  A.  804,  161  N.  S.  518,  40 
li.  Ed.  793;  State  v.  Rep.  104  Ta. 
.'JO.'i,  73  N.  W.  829,  65  A.  S.  R.  463, 
40  L.  R.  A.  087;  People  v.  Miller, 
109  N.  Y.  339,  62  N.  M.  118,  88  A. 
S.  R.  546,  and  note. 

11 — Com.  V.  noeman,  8  (!ray  497; 
Slate  V.  Turner,  00  N.  C.  018. 


Larceny  537 

monkeys  and  s(iiiiiTols  and  the  like.'^^  Oysters  reclaimed 
from  a  bed  in  the  watei\s,  or  where  they  are  planted  and 
propagated,  being  highly  valued  as  food  for  man,  is  sub- 
ject of  larceny.^^  So,  the  eggs  of  wild  birds  are  not 
subject  to  larceny,  unless  they  are  known  to  be  good  for 
food,  and  it  appears  that  when  the  indictment  is  for 
stealing  eggs  it  should  affirmatively  appear  that  the 
eggs  were  the  eggs  of  domesticated  fowls.  Also,  as  a 
general  rule,  all  domesticated  animals,  at  the  common 
law,  were  subject  to  larceny,  but  to  this  there  is  an 
exception  in  the  case  of  dogs  and  cats.^^  These  latter 
were  classed  as  domesticated  animals,  but  were  not  re- 
garded as  being  of  sufficient  value  to  make  it  larceny  to 
steal,  although  a  civil  suit  for  damages  could  be  main- 
tained for  the  conversion  of  the  dog.  It  is  indeed  a  very 
curious  distinction.  There  is  no  dumb  animal  that  ex- 
hibits a  higher  sense  of  affection  for  his  owner,  or  which 
possesses  a  higher  degree  of  intelligence.  The  notion 
of  our  ancestors  seem  to  have  been  that  those  things 
which  were  maintained  for  the  purpose  solely  to  gratify 
a  whim,  or  the  pleasure  of  the  owner,  such  as  that  of 
dogs  and  cats,  which  were  not  valuable  for  any  other 
purpose,  did  not  possess  sufficient  value  to  be  subject  to 
the  crime.  There  appears  at  this  late  date  no  reason 
for  the  rule,  but  adjudicate  cases  in  this  country,  as  well 
as  of  the  mother  country,  adhere  to  it,  and  it  may  be  said 
that,  except  where  provided  by  statute,  the  stealing  and 
carrying  away  of  a  dog  or  a  cat  with  intent  to  thereby 
acquire  the  ownership,  will  not  come  within  the  purview 
of  the  law  relating  to  larceny.^^     As  to  the  crime   of 

12—66   N.    C.    618,   20    Am.   Dec.  86  N.  Y.  365.     This  case  held  that 

573.  a   (log   was   subject  to   larceny,   but 

13 — Taylor  v.  State,  27  N.  J.  L.  for  the  reason  that  the  statute  had 

117,  72  Am.  Dec.  347.  created  such.     See  also  the  follow- 

15 — State    V.    Harriman,    75    Me.  ing  case  for  a  further  discussion  of 

562,  46  Am.  Rep.  423n.  the  subject:      People  ex  rel.  Shand 

16— Ward   v.   State,   48   Ala.   161,  v.    Tighc,    35    N.    Y.    305;    King    v. 

17  Am.  Eep.  31;  MuUany  v.  People,  Hayes,    80    Me.    206,    13    Alt.    882; 


538  Criminal  Law 

malicious  mischief,  the  poisoning  or  otherwise  injuring 
them,  is  subject  to  the  penalties  of  the  law,  as  of  other 
personal  property.  Whether  this  was  time  at  the  com- 
mon law  we  are  unable  to  refer  to  a  case  expressly  hold- 
ing it,  yet  we  are  of  the  opinion  that  it  has  grown  up 
with  the  various  statutes  upon  the  subject  passed  by  the 
mother  country  as  well  as  our  own.^''  As  against  the 
police  power  of  the  state,  the  owners  of  dogs  and  cats 
have  only  a  qualified  propertj^  therein,  for  it  has  long 
since  been  conceded,  that  the  legislature,  where  not  pro- 
hibited by  the  constitution,  are  authorized  to  provide 
that  a  tax  or  a  license  may  be  placed  upon  their  owners, 
and  upon  the  failure  to  pay  the  tax  or  license  as  pro- 
vided, such  property  may  be  confiscated  by  the  killing 
of  the  anmials  or  otherwise  disposing  of  them.  And  for 
this  there  appears  to  be  one  reason  sanctioned  generally, 
that  the  power  of  confiscation  is  derived  from  the  power 
of  the  state  to  provide  for  the  discontinuance  and  abate- 
ment of  a  public  nuisance,  or  public  danger,  and  that 
the  same  is  not  in  deprivation  of  "due  process  of  law."  " 

§  575.  Choses  in  action,  deeds,  notes,  and  such  like, 
was  not  larceny.  (  hoses  in  action,  including  notes,  deeds, 
hank  l)ilis,  all  written  evidences  of  debt  from  one  per- 
son to  another,  as  evidenced  by  account  books,  or  other 
instruments  in  writing,  at  the  conunon  law  were  not 
subject  to  larceny,  but  it  appears  that  theft  of  the  paper 
on  which  the  matter  was  wi'itten  was  subject  to  punish- 

I>ynii   V.   State,  2;j  S.  W.  77i).     This  ^feasc,  G9   Mo.   A].]).   fiSl.      Sec    fol- 

(•a.s(!   holds   that   under   tlic   coiintitu-  lo\viiif;f   cases:      State    v.    Sumner,    2 

tion  of  the  state  the  legislature  had  Ind.    377;    Nehr   v.   State,   35   Neb. 

no   autliority   to   confer   upon   cities  G38,    17    L.    K.    A.    771,    53    N.    W. 

of  the  state  the  right  by  ordinances  589;   State  v.  IMarshall,  13  Tex.  55; 

to  authorize  her  oflicers  to  kill  dogs,  Harness  v.  State,  l-'7    Ind.    ILT);    i'.it 

under  the  power  to  exercise  the  po-  ton  v.   State,  21   L.   K.   A.   732. 
lice  power  of  the  state,  as  being  in  18 — Ilaggertown  v.  Witner,  86  Me. 

controversion    of    "due    process    of  203,  37   Atl.   005,   30  1,.   1?.    A.   049; 

law."  Independent  v.   'i'ruiv.illc,    Ifi    Kans. 

17— State  V.  Lathuni,  35  N.  C  38  70;    Curtis  v.   Tojiek:!,  30   Kans.  70. 

(13    Ired.    L.).      Contra;     State    v.  50    Am.    Rep.    529;     Frederick    Fox 


Labceny  539 

ment  as  larceny,  for  the  reason  that  there  was  an  inde- 
pendent and  intrinsic  value,  although  slight,  existing  in 
the  paper.*^  By  statute  in  most  of  the  several  jurisdic- 
tions, almost  all  kinds  of  written  instruments,  as  in  the 
nature  of  notes,  bills,  deeds,  mortgages,  debentures,  cou- 
pons, tickets,  passes  and  permits,  upon  railroad  cars, 
and  to  all  kinds  of  entertainments  where  a  charge  is 
made,  tickets  or  permits  given  by  common  carriers,  or 
any  other  means  whereby  a  valuable  right  is  conveyed 
to  or  exists  in  another  written  or  printed,  or  engraved 
or  lithographed  upon  paper  or  other  substance;  and  all 
others  means  whereby  a  right  to  another  is  conveyed,  is 
made  larceny  when  taken  and  carried  away  with  the 
intent  to  secure  the  property  therein.^"  A  pension  check 
is  made  larceny  to  steal,  according  to  the  statute  of 
North  Carolina.^^  So,  also,  the  stenographic  report  of 
witness's  testimony,  being  of  no  value  except  for  use 
in  a  trial  of  a  cause  in  court,  is  subject  to  larceny,  and 
the  value  of  such  testimony  to  the  person  who  can  use  it, 
is  the  standard  of  value.^*^ 

§  576.  Further  discussion  of  larceny  of  choses  in  action, 
etc.  In  order  to  render  promissory  and  bank  notes  or 
other  paper  evidences  of  debt  or  obligation  subject  to 
larceny,  there  must  be  a  valid  and  existing  obligation 
to  pay  something  of  value;  or  some  valid  and  existing 
right.^^    The  rule  may  be  stated  to  be,  that  where  there 

Resp.  V.  Humane   Society,   31  L.  E.  20 — See  the  statutes  of  the  several 

A.  681;    Sentell  v.  N.  O.  R.  R.  Co.,  states. 

166  U.  S.  698.  21—4  S.   E.  357. 

19— U.  S.  V.  Davis,  5  Mason  356;  22— People   v.   McGrath,    17   Pae. 

4  Blatchf,  234;   Thomason  v.  State,  (Utah)   Am.  Dig.  1888,  p.  819. 

22  Ga.  499;   Gulp  v.  State,  1  Part  23 — People  v.  Loomis,  4  Den.  (N. 

(Ala.)    33,   26  Am.   Dec.   357.     See  Y.)    380;   Wilson  v.  State,  1  Parb. 

note  88  A.  S.  R.  586;    Calentine  v.  (Ala.)    118;   State  v.  MeClellon,  82 

State,   50   Tex.  App.   151,  94  S.  W.  Vt.  361,  23  L.  R.  A.   (N.   S.)    1063 

1061,  123  A.  S.  R.  837;   Patrick  v.  and  note  73  Atl.  993.  See  cases  cited. 
State,   50   Tex.   App.  496,  98  S.  W. 
840. 


.  540  Criminal  Law 

exists  any  written  evidence  of  a  claim  to  specific  prop- 
erty, or  any  written  evidence  of  any  debt,  or  any  written 
contract,  or  contract,  the  interest  in  wliicli  is  based  upon 
a  future  contingency,  or  any  existing  or  tangible  right  in 
and  to  any  material  thing,  or  to  the  use  that  may  be  de- 
rived from  it,  is  subject  to  larceny,  under  the  provisions 
of  our  statutes.''* 

OF  THE  OWNERSHIP  AND  POSSESSION 

§  577.  Of  the  title  and  the  possession  of  property.    The 

possession  of  personal  property  may  be,  for  convenience, 
divided  into  two  classes.  (1)  AVhere  the  title  and  the 
possession  are  in  the  same  person  or  persons  at  the  same 
time.  (2)  Where  the  title  and  the  possession  are  in 
different  persons  at  the  same  time.  In  the  latter  case, 
the  person  holding  the  title  is  the  bailor,  and  the  person 
holding  the  possession  is  the  bailee.  Larceny  may  be 
connnitted  by  stealing  the  propertj^  from  either.  If, 
from  the  nature  of  the  bailment,  each  have  equal  right 
or  control  of  the  property,  it  will  be  necessary  for  the 
accused  to  show  the  consent  of  one  or  the  other  in  order 
to  set  up  consent  to  take  the  property  as  a  defense.'*^  If 
one  has  the  possession,  and  the  otlier  has  the  title,  and 
the  control  remains  in  the  person  having  the  possession, 
then  his  consent  is  suriicicnt  to  negative  a  felonious  in- 
tent. Thus,  the  ownership  of  a  check  is  sufficiently  laid 
ill  a  pcisoii,  whom  it  is  proven  lind  it  in  his  possession, 
control  and  cuslody.^'^  So,  where  llie  ownership  and  pos- 
session, at  the  time  of  the  larceny,  are  alleged  to  be  in 
the  owner,  and  the  evidence  shows  that  the  actual  care, 
control  and  management  of  the  property  is  in  a  ])ailee, 

24— People    V.    MiCJrath,    J7    Pac  Woitliain  v.  State,  HO  Tex.  App. 'J5;i, 

HC;  People  v.  Loomis,  4  Dcnio  909;  IL'O  S.  W.  439,  14  Ann.  Gas.  134. 

State  V.  JnnieH,  ."52  N.  II.  fi7;  Vauglit  25— Iloiiac  v.  Stfito,  19  Tex.  App. 

V.  State,  135  Wis.  C,   lU   Nev.  518,  227. 

128  A.  S.  K.  1008,  32  L.    U.   A.   (N.  20— Ktale  v.   Hislidp,    t   S.   K.  :ir.7, 

S.)    234.      Note    88    A.    S.     |{.    M(\.  DM    N.    C.    773. 


Larceny  541 

it  is  fatal  variance.'^''  One  cannot  commit  larceny  of  his 
own  property,  the  possession  being  in  himself.^'  Where 
the  management  or  control  is  in  that  of  another  person, 
the  owner  may  be  guilty  of  larceny  if  he  takes  and  car- 
ries away  the  property  animus  furandi,  because  he  has 
no  right  to  take  the  possession  from  his  bailee.^  Thus, 
a  mortgagor,  the  possession  of  the  mortgaged  property 
being  in  the  mortgagee,  has  no  right  to  the  property, 
and  to  take  and  cany  the  same  away,  without  the  con- 
sent of  the  mortgagee,  is  larceny.^**  So,  one  may  com- 
mit larceny  of  the  property  in  which  he  has  an  interest, 
his  co-owner  having  possession.  But,  however,  a  crop- 
per, it  seems,  is  not  guilty  of  larceny  for  converting  crops 
in  which  the  owner  of  the  land  has  an  interest.^^  The 
mere  ownership  of  the  land  confers  no  right  to  the  pos- 
session, and  a  disposal  of  the  crop  by  the  tenant  is  not 
larceny.^^  But  where  the  land  is  leased  for  a  share  of 
the  crop  raised,  to  be  divided  after  gathering,  the  title 
of  the  whole  will  be  that  of  the  tenant,  until  the  division 
and  delivery.^*  So,  also,  under  a  statute  which  creates 
a  lien  on  the  crops  raised  on  the  landlord's  land,  but 
declares  the  possession  shall  be  deemed  to  be  in  the  land- 
lord, a  tenant  who  converts  a  portion  of  the  crop  after 
gathering  was  held  to  be  guilty  of  larceny,^*  In  general, 
one  joint  owner  or  joint  tenant  cannot  be  guilty  of  lar- 
ceny of  the  goods  of  himself  and  co-tenant,  or  co-owner, 
unless  goods  be  taken  from  the  possession  of  the  bailee, 
whose  possession  is  exclusive.*^ 

27— Conner    v.    State,    6    S.    W.  31— Bell  v.  State,  7  Tex.  App.  25. 

(Tex.)   138.  32— Eobinson   v.    Kruse,    29    Ark. 

28— People    v.    McKinlcy,    9    Cal.  575. 

250;  Williams  v.  State,  6  S.  W,  357.  33— Sargent  v.  Consier,  66  111.  245. 

29— State  v.  McCoy,  17  N.  C.  474;  34— Varuer  v.   Spencer,   72   N.   C. 

Rex  V.  Brandley,  Euss  &  R.  478.  381. 

30— People  v.  Long,  50  Mich.  249,  35— Spivey  v.  State,  26  Ala.  90; 

15  N.  W.   105;    Braley  v.   Rose,  47  Long  v.  State,  27  Ala.  32. 
la.    651. 


542  Criminal  Law 

§  578.  One  with  the  bare  possession  of  property  is  not 
a  bailee.     One  who  has  the  bare  possession  or  charge 
of  the  personal  property  of  another,  is  not  for  that  rea- 
son a  bailee  of  the  goods,  within  the  meaning  and  appli- 
cations of  the  law.    Thus,  a  mere  sen^ant,  or  employee, 
who  has  the  charge  of  the  master's  property  is  not  a 
bailee,  and  if  he  takes  the  property  with  the  fraudulent 
intent  to  convert  it,  is  guilty  of  larceny.^^    As  where  a 
person  to  whom  certain  rings  were  entrusted  to  sell  for 
cash  or  on  instalment,  or  to  return  them  in  seven  days, 
and  who  is  to  have  commissions  on  the  sales,  and  who 
sells  part  of  the  goods  and  uses  the  money  to  leave  the 
countiy,  and  ships  the  balance  of  the  goods  to  the  place 
of  his  destination,  it  was  held  by  the  Minnesota  court 
to  be  proper  to  convict  of  larceny.^"'    In  this  case,  how- 
ever, it  would  appear  that  the  circumstances  would  veiy 
clearly  create  the  relation  of  bailor  and  bailee,  and  it  is 
perhaps  taking  an  extreme  view  of  it  to  say  that  he  was 
guilty  of  larceny."     But  w^here  I  deliver  goods  to  a 
man,  he  has  the  possession  of  the  goods,  and  he  may  have 
an  action  of  trespass  if  they  are  taken  out  of  his  pos- 
session.   But  my  butler,  or  cook,  who  is  in  my  house,  has 
charge  of  my  food  and  plate,  has  no  possession  of  them, 
nor  has  an  action  for  the  possession  as  the  bailee  has; 
and  to  steal  the  plate,  it  is  larceny,  and  so  it  is  for  a 
food.     So,  if  a  hotelkeeper  sets  a  piece  of  plate  before 
a  man  to  drink  in  it,  and  he  cany  it  away,  it  is  lar- 
ceny; for  it  is  no  bailment,  but  a  special  use  to  a  special 
])Ui-pos('.     The  sen^ant  who  keeps  a  key  to  his  master's 
loom    is    IK)   bailee,   l)iil    lias    only   l)ar('   custody.      And 
where    a    person    is    employed    to    drive    cattle,    sells 
tliem,   it   is   larceny;   for   he   has    the    custody   merely, 
and    not   the   right   to   possession,   although   the   inten- 

.'ifi— St:ito  V.  Davis,  03  N.  C  r.r)(5 ;  4  (^ox  C.  C   224;    1'.   8.  v.   HIow,  4 

PHrvcll  V.  Stnto,  U  Ark.  693;  Htatc  WjiHh.  700. 

V.  Kchoinpin,  20  Wis.  74;  MfircuH  v.  37— Rtato   v.    Fislicr    (Minn.),   37 

State,  26  Ind.  101;  Rex  v.  Hawkins,  N.   W.   948,  38   Minn.   378. 


Larceny  543 

tioii  to  convert  them  was  not  conceived  until  after  they 
were  delivered  to  him.  So,  a  carter  going  away  with 
his  master's  cart  was  held  to  be  guilty  of  felony.  If 
A  ask  B,  who  is  not  his  servant,  to  put  a  letter  in  the 
post,  telling  him  that  it  contains  money,  and  B  breaks 
the  seal  and  abstracts  the  money  before  he  puts  the  let- 
ter in  the  post,  he  is  guilty  of  larceny.  So,  if  a  mas- 
ter delivers  property  into  the  hands  of  a  servant  for  a 
special  purpose,  as  to  leave  it  at  the  house  of  a  friend, 
or  to  get  change,  or  deposit  with  a  banker,  the  servant 
is  guilty  of  larceny  for  converting  it  to  his  own  use,  for 
it  still  remains  in  the  constructive  possession  of  the 
owner.  So,  where  a  lady  asked  the  prisoner  to  secure 
for  her  a  railroad  ticket  and  handed  him  the  money  to 
pay  for  it,  and  instead  of  purchasing  it,  runs  away 
with  it  and  converts  it  to  his  own  use,  it  is  larceny.  So, 
if  a  banker's  clerk  is  sent  to  the  bank  vault  to  secure 
money  for  a  particular  purpose,  and  he  takes  the  oppor- 
tunity to  secure  the  same  for  his  own  use,  or  where  a 
merchant  entrusts  goods  to  his  clerk  to  deliver  to  his 
customer,  and  he  appropriates  them  to  his  use,  is 
guilty  of  larceny.  And  if  several  persons  play  to- 
gether at  cards  and  deposit  money  for  that  purpose, 
not  parting  with  their  property  therein,  and  one 
of  them  takes  all  the  money  from  the  custodian,  he  is 
guilty  of  larceny.  And  if  a  bag  of  wheat  is  delivered 
to  a  warehouse  man,  merely  for  safe  keeping,  and  he 
take  all  of  it  out  of  the  bag  and  disposes  of  it,  it  is  lar- 
ceny. And  where  a  banker's  clerk  took  notes  from  the 
till,  under  color  of  a  check  from  a  third  person,  which 
check  he  obtained  by  making  a  fictitious  balance  in  the 
books  in  favor  of  the  thii'd  person,  it  was  larceny.  A, 
employed  as  a  clerk  in  the  daytime,  not  residing  in  the 
house,  takes  a  bill  of  exchange  which  he  received  from 
the  owner  in  the  course  of  business,  with  direction  to 
foi'W'ard  by  post  to  a  correspondent,  and  converts  it  to 
his   use,  is   guilty   of  larceny.     So,   where   goods  have 


544  Criimixal  Law 

not  been  reduced  to  the  owner's  possession,  actually,  yet 
if  he  has  intrusted  them  to  another  to  be  delivered  to 
his  servant  and  they  are  delivered  and  the  servant  con- 
verts them  to  his  own  use  he  may  be  guilty  of  larceny.*' 
But  where  one  loaned  his  horse  to  ride  to  a  certain  point, 
and  who  after  reaching  the  point  of  destination  traded 
the  horse  for  an  overcoat,  the  court  of  Texas  held,  that 
since  the  accused  had  legal  possession,  free  from  fraud 
in  acquiring  the  possession,  he  was  not  guilty  of  lar- 
ceny.** 

§  579.  Conversion  of  property  after  term  of  bailment. 

At  the  common  law,  property  coming  into  the  hands 
of  a  bailee,  and  converted  by  him  after  the  term  of 
bailment  was  terminated,  was  guilty  of  larceny;  or  if 
coming  into  possession  of  goods  by  contract  (such  as 
common  carriers  and  bailees  for  hire),  and  then  broke 
the  original  packages  intrusted  to  their  care  and  con- 
trol, and  converted  any  of  it,  were  also  guilty  of  larceny, 
because,  by  the  act  of  breaking  the  packages,  the  bail- 
ment terminated,  and  they  became  wrongdoers,  and  their 
original  and  lawful  control  and  possession  ceased.*" 
Generally,  it  may  be  said,  that  a  bailee  having  tlio  pos- 
session of  the  property  of  the  bailor,  does  anything 
whicli  has  the  effect  to  tenninate  the  contract  of  bail- 
ment, at  that  instant  lie  ceases  to  have  possession  of 
llic  liailor's  n'oods  in  a  legal  sense,  and  if  he  convert  them 
to   liis   use   and   benefit,    lu^   will   be   gnilty  of  larceny.*^ 

38 — I.    C'riniin;il     I.;i\\     MaRaziiu',  40 — Com.  v.  Brown,  4  Mass.  580; 

pages  562-3-4,  ami  antlioritios  cited.  2  RuHsoll  on  Crs.   155-156;    U.  S.  v. 

39_Rtockly    V.    Ktato,    0    S.    \V.  IMcw,  4   Wa.sh.   700;    State   v.   Fair- 

(TexaH)    538.     Bare  cliarge   or  ])0s  clauKh,   20   Conn.    47.    7fi    Am.    Hoc. 

HP.sHion,  no  bailment,  see  Ilolhrook  v.  590;   Stflte  v.   i^iflin,   Uil   X.  C.    116, 

State,   107  Ala.   154,   18  So.   10f>,  54  79  S.   E.  417,  47  L.  K.   A.    (N.   S.) 

A.    S.    K.    65;    State    v.    Fairclauuli,  852.      See    note    to    (Ins    last,    also 

29  Conn.  47,  76  Am.  Dec  690;  State  note  88  A.  S.  R.  576. 

V.    Riillin,    164    N.   C.   416,   79   S.    K.  41— Starkie   Ev.,   44M;    K'nssill   on 

417,  47   li.  R.   A.   (N.  S.)   852.  Crs.   59;    People   v.   Nicliolds,    17    N. 


Lakceny  545 

There  is  quite  a  subtlety  of  reasoning  in  this  doctrine 
of  the  common  law,  but  the  real  reason  for  the  rule,  or 
rather  the  exception  to  the  rule,  was  that  the  act  on  the 
part  of  the  bailee,  of  breaking  the  package,  being  an 
act  not  authorized  by  the  agreement  of  bailment,  that 
he  became  a  trespasser,  and  thereby  terminated  the 
bailment,  yet,  however,  as  concerns  the  rights  of  the 
parties,  considered  as  civil  liability,  it  is  not  true  that 
the  bailment  ceases,  for  looking  at  it  in  the  light  of 
the  law  it  is  a  mere  breach  of  contract  for  which  the 
bailor  has  his  right  of  action  for  damages  for  the  broken 
contract,  though  he  might  maintain  his  action  in  replevin 
for  the  possession  of  the  property  after  the  breach.  If 
the  entire  thing  was  taken,  without  the  breaking  of  the 
package,  this  itself  was  a  termination  of  the  contract, 
but  since  the  act  of  terminating  the  contract  and  the 
conversion  were  simultaneous,  or  the  same  act  produced 
the  two  results,  the  conversion  animus  furandi,  and  the 
termination  of  the  bailment,  it  was  regarded  as  no  lar- 
ceny, for  to  make  it  larceny  it  was  necessaiy  that  the 
bailment  terminated  before  the  conversion  take  place. 

§  580.  Larceny  of  deceased  person,  laid  in  the  adminis- 
trator, executor,  etc.  The  property  of  a  deceased  per- 
son's estate  is  subject  to  larceny.  The  indictment  may 
lay  the  ownership  in  the  executor  or  the  admin- 
istrator. In  the  case  of  a  minor  the  ownership  may 
be  laid  in  the  name  of  the  minor,  if  he  appears  to  be  of 
full  growth,  and  capable  of  attending  to  his  own  af- 
fairs; this,  however,  is  applicable  to  the  larceny  of  the 
personal  apparel  of  the  minor.  If  the  clothes  belong  to 
a  minor  of  tender  age,  then  ownership  may  be  laid  in 
the  father,  if  none,  then  in  the  mother,  and  if  no  mother, 
then  in  the  guardian.*^  But  the  general  rule  appears 
to  be,  that  if  the  property  is  other  than  the  personal 

Y.     114;     State    v.    Fairclaugh,    27  42— Phillips   v.   State    (Teim.),   3 

Conn.  47.  S.  W.  434. 

C.  L.— 35 


546  Criminal  Law 

apparel  of  the  minor,  the  ownership  must  be  laid  in  the 
guardian.  So,  also,  the  larceny  of  the  grave  clothes  or 
the  shroud  of  a  deceased  person,  the  ownership  may 
be  laid  in  the  executor  or  the  administrator,  and  in  the 
event  of  no  executor  and  administrator,  then  in  the 
person  who  bore  the  expenses  of  the  burial  and  last  sick- 
ness. A  dead  man's  body  is  not  capable  of  larceny  for 
the  reason  that  there  cannot  exist  the  elements  of  prop- 
erty in  the  body.  It  is  true  that  there  is  a  qualified 
property  in  the  body,  as  regards  his  immediate  rela- 
tives, sufficient  to  authorize  them  to  recover  the  body 
for  the  purpose  of  burial,  but  there  is  not  such  property 
that  would  reach  the  person  who  might  steal  it  animus 
furandi,  as  in  the  case  of  stealing  for  the  pui"pose  of 
dissection.  Our  statutes  have  laws  against  the  desecra- 
tion of  the  graves  of  the  dead,  and  perhaps  there  are 
some  statutes  which  make  it  larceny  for  one  to  steal  a 
dead  body  of  a  person,  where  he  does  so  for  the  pur- 
pose of  acquiring  a  profit  from  it.  So,  if  the  coffin  of  a 
person  prepared  for  burial  is  stolen,  the  ownership  must 
be  laid  in  the  name  of  the  person  who  bore  the  expenses 
of  the  burial.*^ 

§  581.  Rule  as  to  one  who  finds  lost  property.  Lost 
property  is  subject  to  l)e  stolen,  altliougli  it  is  not  in  the 
actual  possession  of  any  person.  So,  wliere  one  finds 
pro])erty,  he  is  bound  to  make  an  effort  to  tind  the  ownei". 
Tliis,  liowev^er,  is  not  required  where  there  are  no  marks 
or  other  evidences  upon  the  thing  itself  indicating  the 
ownci'.  '^riie  effort  to  find  the  owner  nmst  be  an  hon- 
est one,  Jiiid  not  a  niei'c  pivtcxt  or  snhtei'fuge.  So,  if 
the  findci-  iiavc  oi-  can  Mcqnire  tiic  name  of  tiu'  owner, 
oi"  any  eireninsl.-inee  \\lii('h  will  lead  1o  the  true  owner, 
a  conversion  of  the  ])roj)erty  will  constitute  larceny  of 
the  goods.**     Tlie  statute  of  the  several  states  perhaps 

43— Htntc  V.  Dnpkc,  (58  Mo.  208.  !>  S.    ]-].  (i78;    IJiilciid.r  v.  Sf:itr,    l;i. 

44— Roberts  v.  State,  83  Ga.  361),       706;  29  N.  W.  602. 


Larceny  547 

cover  partially,  the  condition  and  the  circumstances 
under  which  larceny  of  lost  property  may  be  penal.  If 
the  finder  acquire  the  property,  and  at  the  time  he  have 
no  fraudulent  intent  to  convert  the  property  to  his  own 
use,  then  it  is  not  larceny,  although  he  may  afterward 
convert  it  with  a  fraudulent  intent.*^  There  is  some 
conflict  in  the  authorities,  but  the  modern  i^ile  seems 
to  be  that  if  the  finder  has  no  means  of  ascertaining  the 
name  of  the  owner,  at  the  time  of  finding  the  goods,  then 
there  is  no  larceny  if  he  converts  the  goods,  and  makes 
no  effort  to  find  the  owner.  Under  the  laws  of  Texas, 
the  finder  must  have  a  felonious  intent  to  appropriate 
the  property  to  his  own  use  and  benefit  at  the  time  of 
finding."*^  So,  if  the  finder,  at  the  time  he  found  the  goods, 
did  not  know  who  owned  them  and  there  was  nothing 
upon  them  showing  to  whom  they  belonged,  then  the  con- 
version is  not  larceny.*' 

§  582.  Allegation  of  ownership,  when  in  a  corporation. 
Larceny  of  goods  belonging  to  a  corporation,  the  owner- 
ship must  be  laid  in  the  name  of  the  coi^Doration,  and  it 
must  also  affirmatively  appear  that  the  corporation  has 
been  duly  incorporated.*^  As  to  this,  however,  there  are 
authorities  to  the  effect  that  it  is  not  necessary  to  allege 

45— Baker   v.   State,   29   Ohio   St.  Tex.   App.   662;    Martcnez   v.   State, 

184,   23    Am.   Kep.    731,   2    Am.   Cr.  16  Tex.  App.  112. 
Rep.  337;   Wilson  v.  State,  20  Tex.  47— State  v.  Dean,  49  la.  150,  31 

App.  662;  Martenz  V.  State,  16  Tex.  Am.   Rep.   143;    State  v.   Wiston,   9 

App.   112;    Allen   v.   State,   91   Ala.  Conn.  527;  State  v.  Comvay,  18  Mo. 

19,    24    A.    S.    R.    856;    Brewer    v.  321;   Hunt  v.  Com.,  13  Gratt   (Va.) 

State,  93  Ark.  470,   125  S.  W.  127,  757,  70  Am.  Dec.  443 ;  People  v.  An- 

20  Ann.  Cas.  1378,  30  L.  R.  A.   (N.  derson,   14  Johns    (N.  Y.)    294. 
S.)  339;  State  v.  Courtsol,  89  Conn.  48— Martin  v.  State,  5  S.  W.  859; 

564,  94  Atl.   973,  L.  R.   A.   1915  A,  State  v.  Mead,  27  Vt.  722;  Coken  v. 

465;    State  v.  Clifford,  14  Nev.  72,  People,  5  Park  Crim.  R.  330;  Wal- 

33  Am.  Rep.  526.     See  note  20  Ann.  lace  v.  People,  63  111.  45  L.;  People 

Cas.  1378.    See  note  30  L.  R.  A.  (N.  v.    Swartz,    32    Cal.    160;    White   v. 

S.)  339.  State,  5  S.  W.  857,  24  Tex.  App.  233, 

46— Wilson  v.  State,  8  So.  665,  20  5  A.  S.  R.  880. 


548  Criminal  Law 

the  fact  of  incorporation,  if  the  name  is  correctly  set 
out,  and  the  proof  shows  a  de  facto  existence  of  the  com- 
pany or  corporation.*^  Although  the  authorities  are 
very  conflicting,  yet  we  are  of  the  opinion  that  upon  the 
general  principles  of  the  criminal  law,  the  accused 
should  be  entitled  to  a  strict  construction  of  the  law; 
that  he  should  be  particularly  informed  as  to  the  par-, 
ticular  crime  he  has  committed,  and  as  to  whom  he  has 
trespassed  against.  That  it  would  be  just  to  the  defend- 
ant, as  well  as  a  better  practice,  to  require  the  allega- 
tion of  the  legal  incorporation  of  the  company.  It  is 
true  that  it  might  be  somewdiat  inconvenient  to  the  gov- 
eniment  to  prove  the  incorporation,  yet  that  being  with- 
in the  power  of  the  prosecution  to  do  so,  should  be  done. 
In  view  of  the  great  conflict  of  the  authorities,  touching 
this  question,  no  writer  perhaps  is  justified  in  undertak- 
ing to  lay  down  a  general  rule,  and  the  rule  of  the  local 
jurisdiction  should  govern  as  to  its  necessity. 

§  583.  Acquiring  the  possession  of  property  by  trick, 
fraud,  etc.  The  taking  and  carrying  away  the  property  of 
another  with  liis  consent,  unless  the  consent  is  acquired 
tlirougli  some  ])retext,  subterfuge,  or  false  representa- 
tions, with  the  intent  at  the  time  of  accpiiring  the  pos- 
session to  appropriate  the  i)roperty  to  tlie  use  and  l)eneiit 
of   the  person   taking,   is   not   larceny.^"     A   trespass   is 

49 — state  v.  Grant,  10  S.  E.  554,  point    was    r;iisi<(l    in    the    following 

104  N.  C.  908;   State  v.  Shields,  89  eases,   wlu-ic   it   is  held   that   it  was 

Mo.  259,  I.  S.  W.  247;  Broathwait  V.  not    neeessary    to   the   snllieiency   of 

State,  45  N.  W.  (Neb.)  247,  28  Neh.  :in   indictment  that  it  should  allege 

832.    In  the  case  of  State  v.  Shields,  citinr   that  the  owner  of  the  prop- 

T.  S.  W.  336,  the  court  says:     "Tlir  city   wns  a   corimrMtinn,   nr  as  such, 

specific    objection    made    to    tlic    in  it  was  capalilr  of  nuninj,'  property.  " 

dictmcnt,   is   that   it    neitlier   alleges  People  v.  McClocky,  5  I'arker  Crim. 

that    the    Missouri    Pacific    Hailroad  H.    57;    Com.    v.    Williams,    2    Cush. 

Co.    was   a    corporaliun.    nor    that    as  .")H;'>  ;     State    v.    Scrii)ture,    42    N.    H. 

such,  it   was  capable  of  owning  jirop  4H5;    State    v.    Hand.   .'58    N.    H.   21fi. 

erty.     The  jireciHe  question  presented  50 — Lewcr    v.    Com.,    15    S.    i*k    H. 

has  not  as   I  am  awjire  l)een  ](ass4-d  9:{;     Kellogg    v.    State,    1^()    Oiiio    St. 

upon  by  this  court;  but  the  identical  15;   Pitts  v.  State,  5  Tex.  .\p]>.  122; 


Larceny  549 

one  of  the  essential  elements  of  larceny.  The  consent 
of  the  owner,  or  the  person  who  has  the  control  of  the 
property,  relieves  the  act  of  its  larcenious  nature.  A 
consent  obtained  by  one  from  another  to  turn  over  to  him 
the  possession  of  his  property  through  fraud,  subterfuge, 
or  device,  is  no  consent  in  law,  for  no  one  is  held  to  in- 
tend that  which  he  does,  unless  he  has  been  fairly  and 
honestly  dealt  with.  So,  if  then  no  consent  has  been 
given,  it  follows  that  the  trespass  has  been  committed; 
and  this  brings  us  to  consider  under  what  circumstances 
larceny  will  be  committed,  where  the  consent  of  the 
owner  has  been  gained  by  fraud,  device  or  subterfuge.^^ 
The  party  making  the  pretext,  fraud,  device  or  subter- 
fuge, must  intend  at  the  time  animo  furandi,  to  steal  the 
property,  and  with  such  intent  may  commit  larceny  only 
where  the  owner  intended  to  part  with  the  possession 
merely  and  not  the  title.  By  determining  whether,  in  a 
given  case,  the  crime  has  been  committed  (where  the 
possession  has  been  acquired  by  fraud,  trick  or  device), 
it  is  necessary  only  to  determine  whether  the  owner 
intended  to  part  with  the  title  or  the  possession.  If  it 
was  the  former,  he  is  guilty  of  some  other  offense,  and 
if  the  latter,  "larceny."  ^^  An  illustration  of  the  larceny 
may  be  found  in  the  case  where  one  hires  a  horse  with 
the  intent  at  the  time  to  convert  it.  Although  this  may 
be  doubted.^'  But  where  one,  Lewis,  pretended  to  have 
a  check  for  $500,  on  the  faith  of  which  he  secured  one, 
0,  to  loan  him  $90,  as  follows:  Loomis  and  Lewis  threw 
dice,  Lewis  losing.  Then  Lewis  agreed  to  divide  with  0, 
but  he  declined  to  have  anything  to  do  with  it.  Then 
Loomis  put  up  what  was  called  $100,  and  Lewis  having 

Loomis  V.  People,  67  N.  Y.  322,  23  ler  v.  Com.,  788  Ky.  15,  39  Am.  Rep. 

Am.  Eep.  123.  194;  People  v.  Rea,  66  Cal.  423,  56 

51— State  V.  Edwards,  51  W.  Va.  Am.  Rep.  102. 

220,  41  S.  E.  429,  59  L.  R.  A.  465;  53— Semples  Case,  I.  Leach  C.  L. 

Stakey  v.  Com.,  7  Leigh.  757.  420;  State  v.  Edward,  note  52  supra. 

52 — State  v.  Edwards,  supra;  Mil- 


550  Criminal  Law 

ten  dollars,  applied  to  0  for  a  loan  of  $90  more,  saying: 
'*I  am  sure  to  beat  him  again  and  you  can  have  your 
money  back.  If  I  do  lose,  I  have  the  check  for  $500,  and 
we  wdll  go  to  the  bank  and  have  the  check  cashed,  and  you 
can  have  the  money."  0  let  him  have  the  money,  the 
dice  were  thrown,  and  Loomis  won.  Lewis  wanted  0  to 
let  him  have  $100  more,  but  he  refused,  and  Lewis  put 
up  the  check  against  the  money  of  Loomis  and  then  lost, 
and  then  declared  that  he  had  nothing  to  pay  with.  He 
and  Loomis  went  away  with  the  money  of  O,  the  court 
held  that  0  did  not  part  with  the  title  of  the  money, 
and  that  it  was  larceny."  So,  again,  where  the  prosecu- 
tor being  intoxicated,  Avas  enticed  into  a  room  where  a 
game  of  "faro"  was  being  played  by  the  conspirators. 
The  game  being  known  as  a  "brace"  game,  and  was  so 
conducted  that  conspirators  always  won,  and  it  was 
impossible  for  others  to  win.  And  the  prosecutor  gave 
the  confederate  of  the  conspirator  ten  dollars  to  bet  at 
three  different  times,  always  losing.  The  court  held 
"that  when  the  money  was  given  to  the  confederate  to 
bet,  it  ought  not  to  be  assumed  that  the  prosecutor  meant 
more  than  it  should  be  hazarded  on  the  game,  and  to 
part  with  his  pro])erty'if  it  was  lost.  But  if  by  consent 
of  the  conspirators  they  knew^  that  the  money  would  be 
lost,  they  were  guilty,  precisely,  as  if  they  had  taken 
the  money  and  divided  it  between  llu'iii."  "  Thus,  again, 
A,  is  the  bailee  of  B,  (\  i-epresiMiling  himscll'  to  A,  that 
he  is  B,  and  demands  the  possession  of  the  goods,  and  A 
yields  the  possession,  believing  that  C  is  B,  and  then  C 
converts  the  goods,  it  is  larceny.  It  would  be  "false 
pretenses,"  however,  if  A,  being  tiie  owner  of  the  goods, 
intended  to  jiarl  with  tlie  title  as  well  as  the  ])ossession 
to  (',  helieving  him  to  he  1').^'"'  'i'he  liooUs  are  I'lill  of  re- 

54 — EdwardH   ('asp,   Hn])r:i ;    Miller  v.  I>.i\vU'ss,  Ki:!   Mjiss.    I'J.");   WiHi:iiiis 

V.   Com.,   Hiipra.  v.    State,    4!)     I  ml.    'Mu  ;     Starli\v    v. 

r,4h— State  V.    Urowii,  li.'i    l:i.  .">(;i  ;  State,     (i     ('IVx.)     H.'IH ;     Ifesken     v. 

C;oi>i.  V.  Collins,    112   Allen    iMl;   Com.  State.    IH   Tex.    .\ii|t.   L'?.') ;    Hrown   v. 


Larceny  551 

ported  cases,  giving  examples  of  the  doctrines  of  the 
text,  and  because  of  this  we  do  not  cumber  these 
pages  with  further  illustrations,  suffice  it  to  say 
that  the  question  is  one  exclusively  for  the  jury  to  de- 
termine, whether  under  the  circumstances  the  accused 
intended  feloniously  to  get  the  possession  of  the  prop- 
erty for  the  purpose  of  converting  it  to  his  own  use  and 
benefit,  and  whether  under  the  circumstances  the  owner 
intended  to  part  with  the  title. 

§  584 — Larceny  where  the  property  is  delivered  for  a 
special  purpose.  Still  another  doctrine  of  the  law  of  lar- 
ceny is,  that  if  the  property  is  delivered  by  the  owner 
to  another  for  a  special  purpose,  although  the  relation 
of  master  and  servant  does  not  exist  between  them,  the 
conversion  of  the  property  subsequently,  whether  the 
intention  existed  at  the  time  of  the  delivery  to  convert 
the  same  animo  furandi,  or  not,  is  larceny;  for  in  this 
case  he  is  the  mere  custodian  and  not  the  bailee  of  the 
owner.^^  But  in  the  case  where  A  hires  his  horse  to  B 
to  ride  to  a  certain  point  and  to  be  returned,  and  after 
the  termination  of  the  contract  of  bailment  B  converts 
the  horse  to  his  use,  it  is  larceny.  This  is,  however,  a 
much  disputed  question,  for  there  is  a  gTeat  conflict  in 
the  authorities  along  this  line,  and  the  most  that  can  be 
said  is  that  the  rale  of  the  local  courts  perhaps  is  the 
rule  to  be  guided  by.  The  courts  of  Texas  hold  that  if 
the  accused  came  into  the  possession  of  the  property 
without  any  intention  at  the  time  of  converting  the  prop- 
erty, a  subsequent  conversion  of  it  did  not  constitute 
larceny.    A  contraiy  view  is  maintained  in  some  of  the 

state,  9  Tex.  App.  81;  State  v.  State  v.  Stone,  68  Mo.  101;  People 
Coombs,  55  Me.  477;  Norton  v.  v.  Moore,  37  Hun  (N.  Y.),  84;  Dig- 
State,  4  Mo.  461;  State  v.  Unity,  88  nowitty  v.  State,  17  Tex.  App.  521, 
S.  W.  Kep.  12.  67  Am.  Dec.  670.  See  also  Morton 
55— Smith  v.  People,  53  N.  Y.  v.  Gloster,  46  Me.  520;  Com.  v. 
Ill,  13  Am.  Eep.  474;  Miller  v.  White,  11  Cush.  483. 
Com.,  78  Ky.  16,  39  Am.  Rep.  194; 


552  Criminal  Law 

other  states,  to  the  effect  that  it  is  not  essential  to  the 
crime  under  such  circumstances  that  the  intent  to  con- 
vert the  property  exist  at  the  time  of  the  securing  the 
possession,  but  that  it  is  enough  if  the  intent  existed  at 
the  time  of  the  conversion.^^  We  spealv  here  particularly 
of  a  lawful  possession,  as  distinguished  from  a  posses- 
sion gained  by  some  fraud  or  subterfuge.  But  w^here 
the  mere  possession  of  the  property  is  acquired  through 
deceit,  trick  or  fraud,  with  no  intention  at  the  time  of 
acquiring  the  possession,  to  steal  the  property,  and  after- 
wards an  intention  is  conceived  to  steal  it,  a  conversion 
of  it  under  such  condition  of  fact  is  larceny;  for  the 
original  transaction  is  tainted  with  fraud,  is  in  effect  no 
consent  in  a  legal  sense.  This  doctrine  is  sound  in  prin- 
ciple as  well  as  in  justice,  although  the  authority  to  sup- 
port it  is  confined  to  a  few  cases." 

§585.  Wife's  possession.  At  connnon  law  the  wife 
was  for  all  intents  and  puit:)oses  the  servant  of  the  hus- 
band, and  her  possession  of  his  property  was  a  qualified 
possession,  being  in  the  nature  of  a  mere  custodian.  She 
had  no  right  to  give  the  possession  of  the  goods  to  an- 
other. It  a]ii)ears  to  have  been  the  rule  at  the  com- 
mon law,  that  the  consent  of  the  wife  could  not  be  pleaded 
by  the  accused,  especially  where  the  wife  had  delivered 
liei-  Imsbaiid's  goods  to  her  paramore.^^     In  some  of  tlie 

56 — Bcatty  v.  Sfiitc,  (ll    Miss.    IH;  liorsr.     lU'  Wiis  luil    the  Imilce  of  the 

Ellis  V.  People,  21  How.  35(5;   fStiite  owiu-r,  l)ut.  was  a   wrontj  doer  from 

V.    iiunipliery,    32    ft.    5^0,    78    Am.  tlio  l)('f,niiiiiiiK ;  :iii<l  tlic  (iwncr  had  a 

Dec.  605.  rifrlit  to  reclaim   his  ]Mcipiit y  at   any 

57 — Wilson  v.  State,  SHi  Ark.  148,  time.     It  has  l.eeii  dciil.d  that  wiieii 

131  S.  W.  336  Ann.  Cas.  1912  B,  339,  .a    jieison    liir.'s   a    horse    1o    e(,    to    a 

41   L.  R.  A.   (N.  H.)   .549.    See  notes  certain   place,  and  hwh  beyond  tiiat 

to  Am.  Cas.  and  L.   H.   A.      In   this  jdaee,  that  suhsefpieiit   act  is  tortu- 

case  at  bar  the  ])risoner  obtained  the  ous.    S.   v.   Coomes,   r^r)   Me.    477,   92 

possession  of  the  property  by  fraud.  Am.    Dec.    610. 

This  negatives  the  idea  of  contract,  r)8-  i'eo|d.'    v.    S.liuyl.er,    C.    Cow. 

or  that  the  poH.session  of  the  prisoner  r>72. 
was  a   lawful  one,  when  he  sold   the 


Larceny  553 

states  where  the  coiiimon  law  is  in  force,  this  is  no  doubt 
the  rule,  but  generally,  it  may  be  said  that  the  statutes 
of  the  several  states  have  changed  the  rule,  and  the 
wife's  consent  may  be  a  good  defense,  for  it  is  not  any 
longer  recognized  as  sound  principle  that  the  wife  is  the 
servant  of  the  husband;  and  conceding  that  the  property 
of  the  household  is  that  of  the  husband  yet,  she  is  the 
bailee  of  the  goods,  and  her  consent  will  be  the  consent 
sufficient  to  relieve  the  act  of  its  larceneous  nature.  So, 
at  the  common  law  the  wife  could  not  steal  the  property 
of  the  husband,  for  the  reason  that,  the  wife  and  the  hus- 
band were  considered  and  taken  to  be  but  one  person,  in 
law.  Though,  if  the  wife  entered  into  a  conspiracy  with 
other  persons,  and  take  the  property  of  the  husband, 
animo  furandi,  the  other  conspirators  were  guilty  of  lar- 
ceny though  the  wife  would  not  be.  But  where  one 
merely  aids  the  wife  in  securing  the  goods  and  trans- 
ferring them  from  the  husband's  house,  not  being  on 
terms  of  criminal  intimacy  with  the  wife,  he  could  not 
be  convicted  for  the  larceny,  for  the  wife's  possession  is 
that  of  the  husband's  (or  merely  the  custodian  of  tliQ 
property),  could  not  legally  give  possession  to  another 
person,  but  when  she  forfeited  her  place  as  a  conjugal 
partner,  by  living  in  adultery,  a  deliveiy  of  the  husband's 
property  to  her  paramore  was  considered  a  trespass,  and 
he  thereby  became  guilty  of  larceny.^®  Although,  where 
the  wife  takes  the  property  to  her  paramore 's  quarters, 
and  place  them  in  his  room,  it  is  said  not  to  be  larceny 
in  the  paramore.^"  It  is  pertinent  to  say  in  this  connec- 
tion, that,  no  general  rule  can  be  given  that  will  have  uni- 
versal and  uniform  application  to  the  laws  of  the  several 
states,  for  by  reason  of  the  statutes  of  several  of  the 
states  married  women  are  given  property  rights,   and 

59— state  v.  Parker,  26  Ala.  L.  J.  46,   13   Am.  St.  Eep.  96,   22   P.  67 ; 

423.  People  v.  Miller,  169  N.  Y.  339,  62 

60— Coomes  v.  State,  17  Tex.  App.  N.    E.    418,    88    Am.    St.    Eep.    .')46. 

258.     See  People  v.  Swalen,  80  Cal.  note  597. 


554  Criminal  Law 

marital  rights  not  accorded  her  by  the  laws  of  our  an- 
cestors. The  rules  of  the  local  courts  will  perhaps  be 
the  best  guide  to  the  law  in  this  respect.  So,  in  a  Texas 
case  where  the  prisoner's  defense  was  that  he  had  ob- 
tained the  consent  of  the  wife  to  take  the  property,  and 
where  the  particular  property  was  claimed  to  be  the 
property  of  the  wife,  tlie  court  held,  "that  although  the 
cow  may  have  been  the  separate  property  of  the  wife,  he 
(the  husband)  had  the  sole  management  of  the  same 
during  the  marriage  and,  prima  facie,  the  wife  could  not 
legally  consent  to  the  taking  of  the  cow,  without  being 
joined  in  such  consent  by  her  husband." 

§  586.  Larceny  of  property  involves  two  questions  of 
possession.  This  crime  involves  two  questions  of  pos- 
session. In  a  general  sense,  it  is  the  same  in  both  in- 
stances, yet  there  is  a  quality  of  difference,  which  is 
noticeable  and  requires  special  mention.  In  the  first  in- 
stance the  property  may  be  in  the  actual  or  constinictive 
possession  of  the  true  owner,  or  the  bailee  or  special 
owner.  As  where  the  goods  have  been  lost;  or  where  the 
goods  have  been  forgotten;  or  where  it  is  in  the  possession 
of  a  servant ;  or  where  the  goods  have  been  placed  in  the 
mere  care,  or  custody  for  a  special  purpose,  of  another 
person;  as  wliere  one  gives  a  bill  of  money  to  another  to 
change,  or  where  the  goods  have  been  placed  in  the  care 
of  a  connnon  carrier;  or  where  the  innkeeper  places  his 
phite  before  his  guests;  or  cattle  is  delivered  to  a  driver  to 
))la('('  in  pasUn-c;  or  tlie  possession  of  the  wife  of  the  Inis- 
ijaiid's  goods;  or  liic  clcik  of  his  master's  goods;  and 
many  othei-  like  instances,  the  actual  ])()ssession  is  not 
either  in  tlie  owner  or  tlie  s|)ecial  owner,  but  l)y  con- 
struction of  law  is  said  lo  be  in  them,  and  tlic  taking 
the  property  by  any  other  person  linni  I  heir  actual  pos- 
session, witlioni  the  consent  of  the  true  or  special 
owner  will  be  larceny.  So,  again,  stock  ui)on  tlie 
j-ange,    in    the    accnstonicd    jiK-ice    of    Iceding    is    in    the 


Larceny  555 

constructive  possession  of  the  owner  or  bailee  and  the 
taking  the  same  therefrom  is  larceny.  But  in  the  second 
instance  the  possession  of  the  goods  must  be  taken  into 
the  actual  manual  grasp  of  the  accused,  or  of  his  confed- 
erate, and  actually  carried  away — there  must  be  a  lease 
on — a  breaking  of  the  joossession  of  the  owner  or  bailee, 
and  the  property  come  under  his  actual  control,  as  against 
the  owner.  There  are  apparent  exceptions  to  this  rule 
but  upon  close  analysis  they  disappear.  As  where  a  child 
or  some  innocent  agency  is  induced  to  take  the  posses- 
sion of  the  goods  for  the  thief,  or  where  stock  upon  the 
range  is  pointed  out  to  another  and  the  property  is  deliv- 
ered to  him  by  the  thief,  in  any  event  the  continuity  of 
the  owner's  possession  must  be  broken  by  an  affirmative 
act  which  changes  the  actual  possession  to  the  taker.^^ 

OF  THE  IXTENT 

§  587.  Where  one  has  the  right  and  the  title  to  the 
property,  etc.  A  fraudulent  taking  is  a  wrongful  taking 
■ — a  taking  without  any  legal  right.  AVhere  a  person  has 
any  legal  right  to  the  possession  or  the  title  to  property 
hot  inconsistent  with  the  right  to  the  possession  in  some 
other  person,  the  taking  is  not  a  fraudulent  taking,  in 
the  sense  of  taking  animo  furando,  and  is  not  larceny. 
The  possession  of  another's  personal  property,  acquired 
through  any  subterfuge,  false  representations,  trick  or 
device,  and  it  being  the  intention  of  the  person  so  acquir- 
ing possession,  to  thereby  obtain  the  opportunity  of  con- 
verting the  property  to  his  own  use  and  benefit,  is  guilty 
of  larceny  if  he  convert  the  property.^^  But  if  the  owner 
is  induced  to  part  with  the  title  and  the  possession  of  the 
property,  and  the  same  is  afterwards  converted,  it  is 

61— Thompson    v.    State,   94    Ala.  101,  14  S.  W.  390,  25  A.  S.  E.  717; 

535,  10  So.  520,  33  A.  S.  E.  145,  and  State  v.  Chambers,  22  W.  Va.   770, 

note;    Adams  v.   Com.,   153   Ky.   88,  46  Am.  Eep.   550. 

154  S.  W.  381,  44  L.  E.  A.   (N.  S.)  62— Williams   v.   State,   11   S.  W. 

637  J   Harris  v.  State,  29  Tex.  App.  680;  State  v.  Johnson,  12  S.  W.  500; 


556 


Criminal  Law 


"False  Pretenses."  But  if  the  owner  intended  to  part 
with  the  possession  of  the  property  temporarily,  this  is 
larceny.^^  There  must  be  a  felonious  intent,  to  take  and 
appropriate  the  property  or  the  value  thereof,  to  the  use 
and  benefit  of  the  person  taking,  or  for  the  use  and  benefit 
of  some  other  person,  though  such  other  person  may  not 
know  that  it  has  been  taken  for  his  use.^*  The  fraudulent 
taking  must  exist  at  the  time  of  the  taking.^^  If  the 
property  is  taken  from  the  owner,  under  such  circum- 
stances as  reasonably  indicates  that  the  taking  was  non- 
felonious,  although  there  may  have  been  the  necessary 
trespass,  there  is  no  larceny.  As  where  the  property  is 
taken  by  mistake ;  Avhere  the  taken  is  in  the  open,  in  view 
of  the  owner,  in  full  daylight ;  where  it  is  taken  under  the 
honest  belief  that  it  belongs  to  the  taker;  where  the 
same  is  taken  in  cases  of  public  necessity,  as  in  the  case 
of  emergency  or  danger  to  the  public. 


Johns  V.  state,  7  Cal.  460.  "The 
judgment  of  the  lower  court  is  re- 
versed, and  sent  back  for  new  trial ; 
in  which  trial,  if  any  instruction  be 
moved  for  as  the  evidence  may  re- 
quire, the  court  is  directed  to  in- 
struct the  jury,  that  if  they  find 
from  the  evidence,  that  the  prisoner 
with  a  felonious  intent  obtained 
the  possession  of  the  \vatch  by  false 
and  fraudulent  pretenses  and  after- 
ward carried  away  the  same,  without 
the  consent  of  the  owner,  or  clerk, 
the  prisoner  is  guilty  of  theft." 
Blunt  V.  Com.,  4  Leigh.  689. 

63—4  So.  (Ala.)  69;  8  8.  W.  47; 
13  A.  (Pa.)  422;  7  S.  E.  489-90;  40 
N.  W.  la.  107.  "Fraudulent  taking 
of  property  embraces  the  idea  tliat 
the  party  taking,  knows  at  flic 
time,  that  it  is  not  his  own,  and  that 
to  take  it  with  the  intent,  at  tlie 
time  to  deprive  the  owner  of  if,  a?i(l 
to  appropriate  it,  to  his  own  use. ' ' 
IFouHc  V.  Ktat^-,  19  Tex.  App.  227. 


64— State  v.  Slengerland,  19  Nev. 
135;  Reopas  v.  State,  8  Tex.  App. 
49.  "To  constitute  theft,  there 
must  be  not  only  the  fraudulent  tak- 
ing, but  also  the  intent  to  appro- 
priate the  property  to  the  taker's 
use  and  benefit,  though  it  was  taken 
with  the  intent  to  destroy  it,  not 
only  to  prevent  his  detection,  or  else 
to  repayment  of  its  value  to  K — . " 
Dignowitty 's  case,  17  Tex.  App.  530; 
.Judge  Wheeler  says:  "To  constitute 
the  felonious  intent,  it  is  not  nec- 
essary that  tlie  taking  be  done  lucri 
causd ;  taking  with  intent  of  de- 
stroying tlic  ])ro])iM-ty  will  be  suf 
ficient  to  constitute  the  oll'ense,  if 
done  to  serve  the  odender  or  another 
person,  tluMigh  not  in  a  pecuniary 
way."  Stfgall  v.  State,  32  Tex. 
Ai)p.    10. 

65— Ram  bo  v.  State,  28  Tex.  App. 
33;  Ilernandes  v.  State,  20  Tex.  Aj)]). 
I'll;  Taylor  v.  State,  25  Tex.  Ap]). 
H7;    Hrooks   v.    State,   26   Tex.    App. 


Larceny  557 

§  588.  Property  need  not  be  taken  lucri  causa.  It  is  not 
requisite  to  larceny,  that  the  property  be  taken  lucri 
causa — that  is,  with  an  intent  to  acquire  a  pecuniary  in- 
terest in  the  property.  "Taking  with  the  intent  of  de- 
stroying will  be  sufficient  to  constitute  the  offense  if  done 
with  the  purpose  of  serving  the  offender  or  another, 
though  not  in  a  pecuniary  way.^^  There  is  a  line  of  au- 
thority holding  that  the  intent  must  be  to  acquire  the 
property  for  the  benefit  of  the  offender.  The  better  and 
more  modern  doctrine  is,  that  there  may  be  larceny  where 
the  offender  intends  wholely  to  deprive  the  owner  of  the 
property;  as  where  the  defendant  secretly  took  the  mule 
of  B  and  carried  it  to  a  secluded  place  and  killed  it ;  there 
being  ill-feeling  between  the  defendant  and  the  owner, 
and  the  evidence  showing  that  it  was  done  with  no  intent 
of  gain,  the  court  held  that  it  was  larceny.^'  The  defend- 
ant may  be  actuated  by  three  different  motives.  (1) 
Where  he  takes  it  for  the  purpose  of  deriving  a  pecuniary 
benefit  to  himself.  (2)  Where  he  takes  it  for  the  purpose 
of  serving  the  interest  of  another  person.  (3)  Where 
he  takes  it  for  the  purpose  of  wholely  depriving  the- 
owner  of  the  property  or  its  use.^*  Where  one  hires  a 
horse  for  a  temporary  purpose,  when  in  fact  he  resorts 
to  that  for  the  purpose  of  converting  the  property,  the 
conversion  is  complete  when  he  puts  it  to  some  use  for 
his  benefit,  whether  he  sells  it  or  not.  The  fact  that  he 
ignores  the  right  of  the  owner  in  the  property  is  suffi- 
cient to  his  conviction.     His  intention  is  shown  by  the 

184;    People    v.    Eeynolds,    2    Mich.  67— Warden    v.    State,    60    Miss 

422;    Blunt  v.   Com.,  4  Leigh.   680;  638,    57    Am.    Dee.    274;    Vaugn    v 

Bailey  v.  State,  58  Ala.  414;    Mur-  Com.,  10  Gratt   (Va.)   758;   Diek  v 

phey  V.   ?        ?  ,63  Ind.  223;   Starck  Steele,  64  Miss.  77,  60  Am.  Rep.  46 

V.  State,  30  Am.  Rep.  214;  State  v.  Slegall   v.   Steele,  40   Am.   St.   Rep 

Wood,  46  la.  116;  State  v.  Cliford,  761. 

14  Nev.   72,  33   Am.   Rep.   526;   see  68— Davis      v.      State,      10      Lea 

57  Am,  Dee.  275.  (Tenn.)    707. 

66— Dignowitty  v.  State,  17   Tex. 
App.,  67  Am.  Dec.  670. 


558  Criminal  Law 

fact  that  he  has  resorted  to  the  fraud  and  it  has  the 
effect  of  vitiathiiJ-  the  whole  transaction  from  its  begin- 
ning.^^ 

§  589.  No  repentance  is  a  defence  to  larceny.  Where 
one  has  committed  the  trespass,  accompanied  with  the 
necessaiy  criminal  intent,  no  subsequent  repentance  and 
restoring  of  the  property  will  relieve  the  act  of  its  crim- 
inal nature.'^^  This,  however,  is  dependent  upon  the  cir- 
cumstances in  determining  whether  the  intent  really  ex- 
isted at  the  time  of  the  taking  of  the  property.  As  where 
the  taker  believes  honestly  that  he  has  an  interest  in  the 
property,  or  where  he  is  mistaken,  or  Avhere  the  taking 
is  for  the  purpose  of  protecting  and  caring  for  the  prop- 
erty, or  where  it  is  taken  for  the  good  of  the  public;  ''^  in 
short,  under  any  and  all  circumstances  which  reasonably 
show  that  the  taker  did  not  intend  to  deprive  the  owner 
of  the  same.  Usually  the  intent  is  a  question  of  fact  to 
be  gathered  by  the  juiy  from  the  facts  proven,  but  this 
is  not  always  true,  since  upon  the  proof  of  the  existence 
of  certain  facts  the  inference  as  a  matter  of  law  may  be 
drawn,  as  in  the  case  of  the  one  who  gains  the  consent  of 
the  owner  and  the  possession  of  iiis  i)r()perty  through 
some  fraudulent  pretense  with  tlie  intent  to  cU^prive  the 
owner  of  it.  The  inference  that  he  intended  to  convert 
tlic  ])roperty  is  not  dependent  upon  the  further  fact  that 
he  sold  or  othenvise  disposed  of  tiie  i)ro])erty.''^  As  to 
tliis  there  is  a  contrariety  of  opinion,  liowever. 

§  590.  Rule  in  estimating  the  value  of  the  property. 

in  estimating  the  value  of  tlie  goods  alU'gcd  to  he  stoh'n, 

69— state    v.    Hui.ipliory,    :\2    Vt.  Dec.   .IfiO;    Pliclps   v.   People,  ru,    111. 

nm,   78    Am.    Dee.    iWrr,    for   :i    con  ;<:M  ;    J)cl)li.s    v.    Stnte,    45    Tex.    (iHii. 

trary  view,  see  Felter  v.  State,  rile.i  72— State    v.    lluniphrey,    32    Vt. 

l)y   tlie  above  ca»e,  !)    Yerjj.  3!tH.  ".C.!),  78  Am.  Dec.  (iKO;   see  T^ewer  v. 

70_(<om.     V.     Ma«on,     105     Maws.  <'uim.,    1.")    Scr^;.    ^     1{.    It.!;    St:itr    v. 

\iV^•,  Com.  V.  Toncy,  !>7  Mass.  5M.  lloiincs,  ."i7    Am.    I  )(•<■.  1^71,  :iin!    ikiIc 

71      See  State   v.    Holmes,    ')7    Am.  tlicieto. 


Larceny  559 

the  rules  of  the  law  of  civil  matters  are  to  be  followed. 
At  the  common  law  it  was  necessary  to  allege  the  value 
of  the  thing  stolen  for  the  purpose  of  showing  whether 
the  crime  was  a  grand  or  a  petit  larceny.  Where  the 
thing  has  a  market  value  it  is  sufficient  to  prove  that 
value. '''^  Where  the  thing  has  a  special  value  such  as  the 
stenographic  report  of  the  testimony  of  a  w^itness,  it  is  to 
be  shown  in  what  particular  it  is  valuable  to  the  owner."^* 
As  a  general  rule  it  nmst  be  shown  that  the  property  was 
taken  for  the  purpose  of  acquiring  the  property  for  pecu- 
niary gain,  but  not  always  so,  as  we  have  explained  in  a 
preceding  section.  It  may  be  for  the  benefit  of  the  prin- 
cipal actor,  or  for  some  other  person,  although  not  a  party 
to  the  theft.  In  many  instances  under  the  statutes  for  the 
larceny  of  particular  property,  the  value  is  immaterial, 
for  the  reason  that  the  crime  is  constituted  by  the  larceny 
of  that  thing  regardless  of  the  value;  such  as  the  larceny 
of  horses,  cattle,  sheep,  hogs,  etc.  Or  where  the  statutes 
makes  it  a  crime  to  steal  property  from  a  particular  place, 
such  as  a  dwelling  house,  or  from  the  person.  Proof  that 
the  thing  designated  by  the  law  has  been  stolen  is  suffi- 
cient, or  where  the  crime  is  for  stealing  goods  from  a 
house  or  from  the  person,  proof  that  any  article  has  so 
been  stolen,  is  enough.'''^  The  value  of  notes,  bonds,  mort- 
gages, and  other  commercial  paper,  must  be  alleged  to  be 
of  a  particular  value.  Bank  notes,  and  other  paper  of  a 
recognized  and  established  value,  may  be  alleged  to  be  of 
the  value  shown  upon  their  face.  Money  and  coin  may 
be  alleged  to  be  of  the  value  represented  by  the  face  of 
the  bill  or  coin. 

73— state    v.    Maggard,    160    Mo.  75— Show  v.  State,  5  S.  W.  317; 

469,  61  S.  W.  184,  83  Am.  St.  Eep.  see  28  Tex.  App.  493,  13  S.  W.  784 ; 

484;  Burrows  v.  State,  137  Ind.  474,  Territory  v.  Pendey,  22  Pac.  (Mont.) 

45  Am.  St.  Rep.  210;  Prhitz  v.  Peo-  760;   State  v.  Carter,  5  S.  W.  906; 

pie,  42  Mich.  144,  36  Am.   St.  Rep.  State  v.  Riley  (Mo.),  13  S.  W.  1036; 

437,  3  N.  W.  306.  Lopez  v.   State,   20   Tex.   App.   780 ; 

74— Jones    v.    State,    44    N.    W.  State  v.  Daniels,  118  111.  301 ;  Adams 

(Neb.)  436.  v.  State,  60  Ala.  52. 


560  Criminal  Law 

§  591.  Rule  as  to  minors  and  deceased  persons.  Where 
a  woman,  though  a  minor,  is  the  occupant  of  a  room,  and 
her  clothing  is  stolen,  the  indictment  charging  ownership 
in  her  is  proper.  Where  the  shroud  and  the  coffin  of  a 
dead  person  is  stolen,  it  is  proper  to  allege  ownership  in 
the  person  who  furnishes  them.'^  Larceny  from  a  cor- 
poration, it  is  as  a  general  rule  proper  to  allege  the  cor- 
porate name,  and  that  it  was  duly  incorporated,  and  that 
ownership  is  in  it.''  In  other  larceny  the  name  of  the 
owner  must  be  alleged  and  where  the  possession  is  in  a 
special  owner  then  the  allegation  that  it  was  taken  from 
him.  Thus  an  allegation  of  possession  and  ownership  in  S  is 
not  sustained  where  the  evidence  shows  that  S  was  the 
owner,  though  the  cattle  were  running  in  a  range,  other 
than  that  of  his  residence,  and  near  the  residence  of  B, 
and  that  they  had  been  under  B's  control  and  management 
for  about  four  years.  It  is  sufficient  to  lay  the  ownership 
in  the  bailee,  and  where  the  bailment  extends  to  the 
actual  care,  control  and  management,  this  is  suffi- 
cient ownership  and  possession  to  constitute  larceny 
where  the  property  is  taken  w^ithout  his  consent.'* 
Where  the  indictment  lays  the  ownership  and 
possession  in  one  and  the  same  person,  but  the  proof 
shows  the  ownership  to  be  as  alleged,  and  the  possession 
wholly  in  another,  who  had  the  control  and  management 
of  the  property  this  is  a  variance  fatal  to  tlic  indictment. 
But  where  the  indiclnuMit  alleges  the  ownerslii])  and  pos- 
session in  one  person,  proof  of  joint  ownerslii j)  and  i^os- 
session  with  another  will  sustain  the  allegalions  as  laid.'® 
Ownership  must  be  made  in  the  name  of  a  county,  town- 
ship, or  municipal  corporation,  where  the  property  is  of 
such  communal  nature.*"    Tiie  agents  or  oilicers  are  not 

76__State  v.  Doppko,  68  Mo.  20H.  St.-ito   v.    I'arncll,   K   S.    E.   627,   10.3 

Supra   §  r,HO.  N.  ''•  41!l ;  Willi:inis  v.  State,  5  H.  W. 

77_Hinith  V.   State,  28   In<l.   .'Jill;  lli'.t;   Williams  v.  State,  9  S.  W.  .If)?. 
State    V.    Shields,   89    Mo.    259;    8ee  70— Smith  v.  State,  6  S.  W.  40. 

State  V.  .Jenkins,  78  N.  C.  478.  HO—State    v.    Jleiich,    6M    Mo.    78; 

78_8tate  v.  Alh-n,     9  S.  K.  626;  Stntc  v.   Mor^.-xn,  6!»  S.  W.  970. 


Larger  y  561 

bailee,  or  special  owners,  and  the  property  cannot  be  laid 
in  tliem.^^  Wliere  the  property  is  owned  by  persons 
jointly  or  as  partners  it  is  a  sufficient  allegation  to  lay 
the  ownership  in  the  persons  or  in  the  firm  name.'^ 

§  592.  As  to  the  question  of  consent,  to  the  taking,  etc. 

It  is  a  necessary  allegation  that  the  propert}'  was  taken 
without  the  consent  of  the  owner.  Where  the  property 
is  taken  with  the  legal  consent  of  the  owner  there  is  no 
trespass,  and  there  is  no  crime,  except  where  the  owner 
gives  the  consent  through  some  misapprehension,  mis- 
take, or  some  fraud,  which  as  we  have  endeavored  to 
show  in  a  previous  connection,  is  no  consent  in  law,  al- 
though it  is  in  fact.  So,  where  the  allegation  is  that  the 
property  belongs  to  several  different  parties,  as  joint 
owners,  proof  of  the  consent  of  one  is  not  siifficient  to 
warrant  an  acquittal,  unless  under  the  circumstances  of 
the  particular  case  the  one  giving  the  consent  had  the 
right  to  do  so.  So,  the  converse  of  the  proposition  is 
true.  If  the  proof  shows  the  taking  to  be  without  the 
consent  of  one  only,  this  is  not  sufficient,  but  it  must  go 
farther  and  show  the  want  of  consent  of  all.®'  Yet  this 
might  not  always  be  literally  true,  as  where  the  true 
owner  of  the  goods  is  a  minor  of  tender  age,  or  of  a  non- 
compos  mentis  or  lunatic,  without  a  legal  guardian,  the 
property  in  the  possession  and  under  the  care  and  control 
of  another  person,  the  want  of  the  consent  of  these  in- 
competents or  the  failure  to  show  that  they  had  not  con- 
sented to  the  taking  would  not  authorize  an  acquittal.^ 

81— state    V.    Jenkins,    78    N.    C.  App.  619;  Williams  v.  State,  19  Tex. 

478;    People   v.   Bennett,    37    N.   Y.  App.   270;   Williamson  v.   State,   13 

117.  Tex.  App.  574;   Com.  v.  Smith,  116 

82— Com.  V.  O 'Brian,  12    (Mass.)  Mass.   40. 
Allen    183;     Westby    v.     State,     73  84— Stewart    v.    People,    64    Am. 

S.  W.  960    (Tex.);   Porter  v.   Com.,  St.   Eep.   133,   172   111.   464;   see  au- 

61  S.  W.  16,  22  Ky,  Rep.  657.  thorities  cited  in  note. 

83— Williams    v.    State,    23    Tex. 
C.  L.— 36 


562  Criminal  Law 

§  593.  Entrapping  the  thief.  Just  how  far  and  to  what 
extent  the  owner  may  g^^  in  entrapping  and  inveigling 
another  he  suspects  of  stealing  his  property  in  aiding 
and  assisting  him  in  the  act,  is  not  veiy  well  settled.  It 
is  one  of  the  cardinal  principles  in  the  crime  of  larceny 
that  consent  of  the  owner  to  the  taking  of  his  property 
is  a  valid  defense.  It  should  not  be  so  broadly  stated, 
for  the  opposite  of  this  is  true.  The  prosecution  is  re- 
quired to  allege  and  to  prove  that  there  was  not  consent 
of  the  owners.  Therefore  any  state  of  case  which  shows  a 
consent  to  the  taking  is  not  larceny.  It  is  also  a  well 
settled  principle  of  the  law  that  where  one  is  suspected 
of  intending  crime — that  of  larceny  or  burglary  and 
some  others,  it  is  permissible  to  resort  to  the  aid  of  de- 
coys, and  other  means  for  the  purpose  of  entrapping  in 
the  act.  It  seems  that  the  weight  of  the  authorities  es- 
tablishes fhe  rule,  that  if  the  owner  of  the  property  does 
nothing  to  contribute  to  the  original  design  of  the  thief, 
hut  (h)es  create  or  contribute  to  the  creation  of  the  oppor- 
tunity for  the  larceny  of  the  property  or  in  any  other 
way  provide  for  the  detection  of  the  thief,  and  all  the 
essential  acts  and  constituents  of  the  crime  is  conmiitted 
by  the  suspect,  then  this  is  not  consent  by  the  owner." 
Differently  stated — the  owner  of  the  property  may  stand 
by  and  watch  or  lay  the  tra])  for  the  thief,  but  he  must 
not  coiitiibutc  to  the  foiniiiig  of  liis  intent  to  take  the 
goods,  and  all  the  overt  acts  necessary  to  constitute  the 
crime  must  be  committed  by  the  accused.  So,  also,  "where 
each  of  the  overt  acts  going  to  make  up  the  crime  are 
persoii;illy  (hmc  by  llic  (IcfciKhnil,  niid  with  ci-iiniiinl 
iiilciit,  liis  guilt  is  complete,  no  matter  what  motive  may 
pronij)t,  or  what  acts  (h)iie  by  the  ])arty  who  is  with 
him,  aiMl  ajiiiaiTiit  !>■  assisting  him."     Counsel  have  cited 

8.') — VariKT  V.  Stale,  72  (hi.  7-ir>;  lliis  ciiHc,  Kcinp  v.  Slate,   11    liiiinpli. 

Alcxamlcr    v.    Stati-,    12    Tex.    r)4(l ;  .T2(l ;  Connor  v.   IVopic,  IS  Colo.  ;i7:<. 

l'ro|.l.-  V.  Han.sc'lnian,  7(5  Cal.  4(i{).  !»  .'.(>  Am.  St.   i.'.-p.  Hitf). 
,\iii.  St.   Hrj).  238;  8ce  cant-H  fitc«|  in 


Larceny  563 

and  commented  upon  several  cases  upon  which  detectives 
figured,  and  which  defendants  were  adjudged  guiltless 
of  the  crimes  charged.  But  this  feature  distinguishes 
them,  that  some  act  essential  to  the  crime  charged  was 
in  fact  done  by  the  detective,  and  not  by  the  defendant; 
and  this  act  not  being  imputable  to  the  defendant,  the 
latter 's  guilt  w^as  not  made  out.  The  intent  and 
the  act  must  combine;  and  all  the  elements  of  the 
act  must  exist,  and  be  imputable  to  the  defendant.^^ 
This  manner  of  apprehending  those  who  would  engage  in 
a  criminal  enterprise  is  very  strongly  condemned  by 
many  of  our  judges,  and  only  permitted  and  endorsed 
by  others  upon  the  broad  ground  of  the  necessity  of  the 
case.  The  rule  is  no  doubt  well  established,  and  allowed 
within  the  limitation  here  given.®''' 

§  594.  Of  the  attempt.  One  failing  in  his  effort  to  com- 
mit the  crime  of  larceny  may  be  convicted  of  the  crime 
of  attempt.  Thus  the  taking  the  personal  property  of 
another,  with  a  fraudulent  intent  to  deprive  him  of  the 
goods  is  the  gravimen  of  the  crime  of  larceny.  If,  in  try- 
ing to  effect  the  larceny  by  taking  the  goods  into  his 
possession,  the  accused  is  thwarted  in  his  effort,  which 
but  for  the  obstruction  the  larceny  would  have  been  com- 
pleted, he  is  guilty  of  the  attempt.  Thus  as  where  one 
runs  his  hand  into  the  pocket  of  another  for  the  purpose 
of  taking  his  money  therefrom,  and  finds  nothing;  or 
who  is  scared  away;  or  is  beat  oft'  by  the  owner;  or  makes 
a  burglarious  entry  in  a  house  for  the  purpose  of  steal- 
ing and  find  that  he  cannot  steal,  because  he  cannot  get 
the  safe  open,  where  the  money  is  concealed.^®  To  con- 
stitute the  completed  larceny  it  is  necessary  that  the 

86 — State  V.  Jausen,  22  Kaus.  498.  80  Fed.   Eep.  513;    Stale  v.  Jansen, 

Opinion  by  Justice  Brewer.  State  v.  22  Kansas  498 ;  Love  v.  People,  160 

Hayes,  105  Uo.  76,  24  Am.  St.  Eep.  111.  508. 

360.  88— People   v.   Morau,   123   N.   Y. 

87— State  v.  Hull,  33   Or.  56,   72  254,   25   N.   E.   412;    McDermott   v. 

Am.  St.  Eep.  694;   U.  S.  v.   Jones,  People,  5  Park  Cr.  104;    McSay  v. 


564  Cbiminal  Law 

goods  come  into  the  actual  manual  control  of  the  thief; 
and  any  attempt  to  commit  this  crime  which  falls  short 
of  the  actual  control  of  the  goods  coupled  with  the  in- 
tent, will  make  the  attempt.  Attempt  to  rob  consists  in 
the  taking  the  property  from  the  person,  with  the  intent 
to  deprive  the  owner  of  the  same,  but  which  fails  of  com- 
pletion for  some  intervening  cause.  This  offense  is  known 
in  the  books  as  an  assault  to  rob.  The  distinction  be- 
tween this  crime  and  the  common  larceny,  is  that  in  the 
former  the  property  is  taken  from  the  person,  and  of 
course  combines  in  the  act  the  elements  of  an  assault — the 
force  applied  to  the  person,  and  the  taking;  and  in  the 
latter  combines  in  the  act  the  trespass,  and  the  taking.'' 

§  595.  Substantive  offense  of  receivers.  The  offense 
of  receiving  presupposes  a  principle.  At  the  common 
law  it  was  known  as  a  compounding  of  larceny,  and  ap- 
pears to  have  been  a  misdemeanor.  It  is  a  substantive 
and  independent  offense,  but  accessorial  in  its  nature, 
and  corresponds  to  accessory  after  the  fact  to  the  prin- 
cipal crime.  At  the  common  law  it  was  not  regarded, 
though,  as  an  accessory  after  the  fact.  This  otfense 
however  was  something  more  than  an  accessory  and  con- 
sisted in  the  accepting  the  stolen  property  from  the 
principal  in  the  crime,  or  any  of  his  confederates,  know- 
ing the  property  to  have  been  stolon  with  the  intent 
(1)  to  defraud  the  owner  of  his  properly,  (2)  with  the 
intent  to  aid  the  felon  to  escape,  and  (3)  where  he  in- 
tends to  receive  a  reward  from  the  owner  for  the  return 
of  Ihc  ))r()iH'i'ty.®° 

V(iO\)\(i,    G    I'ark    Cr.    114;    Com.    v.  l)c  acconip.'inii'd  hy  :i  t'riiiiinal  intent 

McDonald,    r>    Cusli.    3G5;    Clark    v.  to  aid   the  tliiof,  or   recoivinjj  a  re- 

Htat*,  8C  Tonn.  511.  ward    for   rpHtorinfj  the   ])roporty  to 

89 — ArchiholdH  Cr.   Law   445.  tlic  owniT,  or  an  infcnt  in  sonir  other 

90 — "To  constitute  tlic  offonso  of  way    to    derive    jn'olit    from    tlie   act. 

rcceiviiiff    stolen    property,    knowing  There  niUHt   he  f^nilty   knowled)j;e,  a 

tlie   minio    to    have    been    .stolen,    the  fraudulent     intent,    conrurrent    with 

act  of  receiving  or  concealing,  must  the  act."      Arciu   v.   State,   20   Tex. 


Lakceny  565 

§  596.  Eng-lish  Statutes.  By  statute  of  4  W  and  ]\[  c 
9,  and  5  Ann,  c.  31,  the  receiver  of  stolen  goods  was 
an  accessory.  By  a  later  statute  it  was  created  into 
a  substantive  offense,  and  the  offender  could  be  convicted 
whether  the  principal  had  or  not.  This  substantive  of- 
fense was  a  misdemeanor,  and  the  statute  left  it  at  the 
option  of  the  govenmient  to  proceed  against  the  accused 
for  the  misdemeanor,  for  the  receiving,  or  defer  the  trial, 
until  after  the  trial  and  conviction  of  the  felon,  and  then 
proceed  against  him  for  the  accessory,  but  in  no  instance 
could  he  be  convicted  for  more  than  one  or  other  of  the 
offenses.  The  subject  was  again  legislated  upon  by  7  and 
8  George  4  C.  29.  24  and  25  Vict,  enlarged  and  extended 
the  crime  so  as  to  include  almost  all  kinds,  of  receiving  of 
stolen  goods,  knowing  them  to  be  stolen,  which  was  a  fel- 
ony at  the  common  law.  In  most  of  the  states  of  the 
Union  accessories  are  regarded  as  substantive  crimes;  as 
so  are  receivers  of  stolen  goods,  and  the  conviction  for 
these  crimes  are  not  dependent  upon  the  conviction  of  the 
principal  felon.  At  the  common  law  the  crime  of  receiving 
was  limited  to  the  receiving  of  goods  that  had  been  stolen 
and  not  to  the  receiving  of  goods  that  had  been  embez- 
zled. This  perhaps  was  because  there  was  no  crime 
known  to  the  common  law  as  embezzlement.  Many  of  the 
states  extend  the  crime  to  both  stolen  and  embezzled 
goods.^^ 

§  597.  The  receiver  need  not  have  the  actual  manual 
possession  of  property.  The  goods  must  be  received  to 
complete  the  crime.  It  is  not,  however,  necessary  that 
they  come  into  the  actual  physical  possession  of  the  ac- 

App.  205;    Nourse  v.   State,  2   Tex.  Also   following:    Shreidley  v.   State, 

App.     304;     Lauranee    v.     State,    1  23    Ohio   St.   130;    Turner  v.    State, 

Humph.    231;    Harrell    v.    State,    5  40  Ala.  21;  Jordan  v.  State,  56  Ga. 

Humph.  69;  Rice  v.  State,  3  Heisk.  92;   Lowndge  v.  State,  6  Mo.  594: 

226;  Wright  v.  State,  5  Yerg.  154;  Hatchett  v.  Com.,  75  Va.  925;  Ogden 

4  Bla.  Com.  133.  v.  State,  12  Wis.  532,  78  Am.  Dee 

91 — See    statutes    of    the    states.  754. 


566  Criminal  Law 

cused,  it  is  enough  that  they  come  under  his  control.^^ 
Thus  if  they  are  delivered  into  the  hands  of  an  innocent 
agent,  for  him,  or  into  the  possession  of  one  under  the 
influence  or  his  coercion,  this  is  the  receiving.  But  receiv- 
ing the  goods  under  sucli  circumstances  as  will  constitute 
him  a  principal  in  the  second  degree  will  not  constitute 
the  offense.  Any  act  that  will  make  the  accused  an  acces- 
sory before  the  fact  will  not  lapse,  and  thereby  make  the 
offense  of  receiving  upon  any  subsequent  acts  connected 
wdth  the  stolen  goods  after  they  are  stolen.  The  goods 
must  be  received  from  the  thief  or  from  his  confederate. 
The  receiving  from  a  receiver  is  not  sufficient  to  consti- 
tute the  crime.  This  is  not  understood  to  mean  that  there 
cannot  be  more  than  one  person  principals  in  the  receiv- 
ing, for  this  as  other  crimes  may  be  participated  in  by 
more  than  one  person.  The  receiving  must  also  be  after 
the  crime  of  larceny  is  completed.  The  gist  of  the  offense 
consists  in  the  guilty  knowledge  of  the  accused.  This 
knowledge  coupled  with  the  intent  to  defraud  the  owner 
of  the  property,  concurrent  with  the  receiving,  will  be 
enough  to  make  the  crime.  "If  the  property  was  received 
or  concealed  with  the  pur])ose  and  intent  of  restoring  it  to 
the  owner  without  reward,  or  with  any  other  innocent  in- 
tent, the  mere  knowledge  that  it  was  stolen  would  not 
make  the  criminal  act."®'  The  question  of  the  proof  of 
knowledge  is  to  be  proven  l)y  the  circumstances,  and  such 
other  facts  as  will  be  of  snTlicient  j)robative  foi'ce  to  con- 
vince the  jury  beyond  ;i  rcasonnblc  donbt  llml  llic  accused 
had  sncli  l\'no\\'l('(lge. 

§  598.  Receivers  need  not  intend  to  acquire  an  inter- 
est in  the  property.  Again,  as  1o  tiic  inlcnl  of  iho  ac- 
cused, it   may  he  said  1o  he  Ihc  (h'dnctions  from  the  an- 

92— Htato  V.  Turner,  !!•  I.i.  Ill;  2(1.1;  Noiir.Ho  v.  Stato.  2  Tex.  App. 
RcRina  v.  Hill,  2  ('.  &  R.  27M.  :W4;   nvo   Iti-x.   v.   Wliitc.   I.    V.  Ik    F. 

03— Arcid   v.   Ktati",  2(1  Tex.   A]. p.       fiO.'). 


Larceny  567 

thorities,  that  it  is  not  necessary  to  the  intent  that  the 
accused  intend  to  derive  any  benefit  from  the  t^^oods  re- 
ceived, personal  to  himself,  yet  with  the  necessary  guilty 
knowledge,  he  receive  the  property  from  the  felon  with 
the  intent  to  derive  any  personal  benefit  from  it  will  be 
enough,  for  it  would  deprive  the  owner  of  it  and  thereby 
defraud  him.  The  concealing  of  the  goods,  or  holding 
them  for  the  reward  would  also  have  the  effect  of  de- 
frauding the  owner,  as  also  would  the  aiding  the  thief  to 
escape  by  secreting  the  property.  So,  also,  the  property 
must  be  received  with  the  consent  of  the  felon,  for  if  taken 
without  the  consent  of  such  person  or  his  agent  or  rep- 
resentative, it  may,  according  to  the  circumstances,  be 
theft  in  him.  At  the  common  law  the  mere  possession 
of  knowledge  of  the  fact  that  a  person  has  committed 
the  crime  of  theft  made  him  guilty  of  the  misprision." 


94 


§  599.  Stolen  goods  restored  to  owner.  A  statute  was 
created  during  the  reign  of  George  I  which  prohibited 
the  acceptance  of  stolen  goods  for  the  purpose  of  accept- 
ing a  reward  from  the  owner  for  the  return,  or  in  leading 
the  ow^ner  to  find  his  goods.  The  earliest  statute  creat- 
ing this  offense  provided,  that  unless  the  person  offering 
to  aid  the  owner  to  his  stolen  goods  should  cause  the 
thief  to  be  apprehended  and  brought  to  trial,  and  also  to 
give  evidence  against  him,  should  himself  be  guilty  of  a 
felony.^5  This  statute,  4  Geo.  I,  C,  ii,  perhaps  is  com- 
mon law  in  this  country,  but  the  nature  of  the  offense 
is  so  closely  allied  to  that  of  accessoiy  before  or  after 
the  fact,  that  it  would  be  indictable  as  such;  or  at  least 
indictable  as  a  receiver  of  stolen  goods. 

94 — See  following  cases:   State  v.  the    mere    knowledge    that    a    crime 

Guild,  149  Mo.  370,  73  Am.  St.  Eep.  has    been    committed    is    indictable, 

395;    Castleben-y   v.   State,   35   Tex.  see  note  to  Wright  v.  State,  26  Am. 

App.    382,    60    Am.    St.    Eep.    53;  Dec.  261. 
Cooper  V.  State,  29  Tex.  App.  8,  25  95—4  Blackstone  132. 

Am.  State  Rep.  712  and  note.    That 


568  Criminal  Law 

§  600.  English  statutes.  Receiving  stolen  goods,  know- 
ing them  to  be  stolen,  was  by  the  ancient  common  law 
a  misdemeanor,  and  was  a  substantive  and  independent 
offense.  But  at  a  later  period  of  our  judicial  history, 
3  and  4  AV.  &  M.,  c.  9  and  5  Ann.,  c,  31,  made  the  receiver 
an  accessory  to  the  principal  felon.  But  because  the 
common  law  accessory  after  the  fact  could  not  be  con- 
victed unless  the  principal  had  been  convicted  previous- 
ly, by  a  subsequent  statute  the  above  statutes  were  re- 
pealed, and  the  original  provisions  of  the  common  law 
were  reenacted.  This  statute  made  this  an  independent 
and  substantive  offense,  and  the  receiver  was  punished 
for  his  part  in  the  theft  of  the  property,  whether  the 
principal  offender  was  ever  convicted  or  not.^^  The 
offense  did  not  depend  upon  the  fact  whether  the  theft 
was  grand  or  petit  larceny. 

§601.  Theft-bote.  This  offense  was  defined  at  the 
common  law  to  be  where,  a  person  robbed  of  his 
goods  learns  w4io  stole  them  and  with  knowledge 
agrees  to  receive  the  goods,  or  payment  from  the  thief, 
and  withhold  prosecution.  This  offense  is  a  com- 
pounding of  the  larceny.  Misprision  and  the  com- 
pounding of  offenses,  were  at  common  hiw  an  offense, 
and  consisted  of  withholding  the  knowledge  from 
tlic  officers  of  the  law  ilml  a.  felony  had  ])0(Mi  coimnitted. 
The  com])()uii(ling  of  tlic  felony  is,  however,  distin- 
guished from  tliat  of  mis))risioii  in  this,  tliat  the  com- 
pounding consisted  in  the  owner,  or  llie  jx'i-son  against 
whom  the  offense  was  connnitted,  for  a  consideration  of 
some  cliar.'K'lor,  agreeing  witli  llio  f(^lon  not  to  ]n'osecnte 
him 


97 


on- 4      I'.l.-ukstonc      13.T;       FoHtcr  :U)!t ;    Dc.tc    v.    Wolf,    (If.    l:i.    32.    21 

.37.3.  N.   W.   108;    Ford    v.   Cliitty,   n'J    111. 

97—4    Hl:ickHtoiif    i:?:?;    4    Iil:ick  .il.H. 
stone  .30.3;  Stanley  v.  .Jones,  7   HiiiK- 


CHAPTER  XXXII 


LIBEL 


§  602.  Definition.  § 

§  603.  Justification. 

§  604.  Tendency     to     bring     on     a  § 

breach  of  the  peace. 

§  605.  Libel  per  se,  what  is.  § 
§  606.  What  is  indictable  libel. 

§  607.  Publication    of    the    proceed-  § 

lugs  of  court.  § 

§  608.  What  matters  are  privileged,  § 

in  court  proceedings.  § 

§  609.  As  to  legislature.  § 


610.  Communications  between  per- 

sons in  interest. 

611.  Inquiries  as  to  another's  char- 

acter. 

612.  Reports     of     mercantile 

agencies. 

613.  Candidates    for    office. 
615.  Public  officers. 

6~6.  Elements  of  the  offense. 

617.  What  constitutes  publication. 

618.  Criminal   slander. 


§  602.  Definition.  A  libel  is  a  malicious  publication, 
expressed  either  in  printing  or  writing,  or  by  signs,  pic- 
tures, effigies  and  the  like,  tending  either  to  blacken  the 
memory  of  one  dead,  or  the  reputation  of  one  alive,  and 
expose  him  to  public  hatred,  contempt  or  ridicule.^    The 


1— Com.  V.  Clap,  3  Am.  Dee.  212, 
4  Mass.  163,  3  Greenl.  Ev.  164.  Ac- 
cording to  Russell,  and  the  authori- 
ties to  which  he  refers,  the  crime 
of  libel  and  indictable  slander,  is 
committed  by  the  publication  of 
writings  blaspheming  the  Supreme 
Being,  or  the  doctrines  of  the  Chris- 
tian Religion,  into  contempt  and 
ridicule;  or  tending  by  their  immod- 
esty, to  corrupt  the  mind  and  destroy 
the  love  of  decency,  morality  and 
good  order;  or  wantonly  to  defame, 
or  indecorously  to  calumniate  econ- 
omy, order  and  the  constitution  of 
things,  which  make  up  the  general 
system  of  the  laws  and  government 
of  the  country;    to  degrade  the  ad- 


n)inistration  of  the  government  or 
of  justice;  or  to  cause  the  animosi- 
ties between  our  own  and  any  for- 
eign government,  by  personal  abuse 
of  its  sovereign,  its  ambassadors,  or 
other  public  ministers;  and  by  ma- 
licious defamation,  expressed  in 
printing  or  writing,  or  by  signs  or 
pictures,  tending  either  to  blacken 
the  memory  of  one  who  is  dead,  or 
the  reputation  of  one  who  is  living, 
and  thereby  expose  him  to  public 
hatred,  contempt  and  ridicule.  This 
descriptive  catalogue  embraces  all 
the  several  species  of  this  offense, 
which  are  indictable  at  the  common 
law. 


569 


570  Criminal  Law 

person  whose  character  is  maligned,  may  have  his  suit 
in  the  civil  tribunals  for  damages — which  may  in  a  sense 
compensate  him  for  his  wounded  feelings  and  loss  of 
reputation.  The  public  also  has  a  right,  which  lias  been 
violated  for  the  following  reasons:  1.  Because  such  acts 
are  calculated,  primarily,  to  bring  on  breaches  of  the 
public  peace,  and  disturbances  of  the  good  order  of  the 
community.  2.  Because  such  acts  have  a  tendency  to 
corru])t  public  morals.  3.  Because  such  acts  may  have 
a  tendency  to  hold  the  government  in  contempt  and  be 
therefore  subversive  of  good  order  and  quietude. 


2 


§  603.  Justification.  This  offense,  according  to  an 
eminent  judge,  consists  in  the  malice  of  the  i)ublication, 
or  the  intent  to  defame,  the  reputation  of  another.  In 
the  definition  of  libel  as  an  offense,  it  is  not  considered 
or  taken  into  account  that  the  publication  is  false;  be- 
cause a  person  may  maliciously  publish  the  truth  against 
another  with  the  intent  to  defame  his  character,  and  the 
pul)lication  even  if  it  is  true,  the  tendency  of  it  is  to 
inllame  the  passions,  and  to  excite  revenge.  The  defend- 
ant cannot  justify  himself  for  publishing  a  libel  by  merely 
proving  the  truth  of  the  statements  of  tlie  ])ublication.  If 
the  law  permitted  the  truth  of  the  woi'ds  to  be  a  justifica- 
tion the  effect  would  be  a  greater  injury  to  the  party  li- 
beled. Although  the  truth  of  words  is  no  justification  in 
a  ci'iminal  ])i-()S(H'uti()n  for  libel,  yet  tlie  defendant  may 

■J, — The  .statt-  takes  nutiru  (jf  a  lilu-l  lihol  may  t'oiilaiii  matter  in  dorofja- 

against   a   ])rivatL'   iiidividiial,    wliorc  tion  of  the  ("liristiaii  HcliKion,  or  of 

llir   laii>,'iiajje   is  a   mere   ilct'.iinal  imi  tlie    imMir    hmhuIs.      I'.ut    as  alroaily 

of  hiiiiHclf,  only  bt'causc   it    tends  to  said,    when    tlie    eli;i  i;i. I  eristics    are 

a  hr('a(di  of  the  peai-e.     The  moment  absent,  the  ffround  of  the  state's  in- 

the  individual  ceascM  to  be  an  abso-  terfi'icne.^  is  ttie  tendency  to  cause  a 

lute  i)rivate  person,  otiicr  reasons  aj)-  In  i  ath   of  the   |ieacc.     State  v.   Iler- 

j.ly,    for   if   ho   is   a   nienibcr  of   the  rick  (Wis.),.!  Cr.  Law  Mag.,  \).  177; 

jfovr-rnmcnt,  or  Minded   in  connection  State  v.  Haskins.   10!)  la.  (iHO,  80  N. 

witli    the    administration    of    ju.stice,  W.   lOC.'l,  77   A.  S.    1{.  ntiO,    17    1-.    U. 

the    essence    of    the    offense    may    be  A.   2'2:\  \   Com.   v.    Morris,    1    \a.   ("as. 

the  contemid    of  government,  <ir   the  17('),   "i    .\in.   Dec,  .il;>. 


Libel  571 

repel  the  charge  by  proving  that  the  publication  was  for  a 
justifiable  purpose,  and  not  malicious,  nor  with  the  intent 
to  defame.' 

§  604.  Tendency  to  bring  on  a  breach  of  the  peace. 

Where  the  alleged  libel  is  directed  to  a  private  individ- 
ual, the  gist  of  the  oifense  consists  in  the  tendency  to 
bring  on  a  breach  of  the  peace,  and  in  these  cases,  or 
in  case  the  libel  is  alleged  to  be  of  and  concerning  a 
person  dead,  no  truth  of  the  words  are  permitted  as  a 
justification,  because  the  tendency  to  a  breach  of  the 
peace  is  as  great  in  the  one  case  as  in  the  other.  And  in 
the  case  of  the  defamation  of  the  dead,  the  tendency 
would  be  greater  than  in  the  case  of  the  living.  The  rule 
has  a  ditferent  application,  however,  when  the  person 
alleged  to  be  libeled  is  a  public  officer  connected  with  ad- 
ministration of  the  government,  or  is  a  candidate  for 
office.*  The  rule  herein  given  is  the  rule  of  the  com- 
mon law,  and  of  course  in  those  jurisdictions  where  the 
common  law  is  the  rule  of  action,  this  would  be  the 
American  rule.  But  many  of  the  states  by  statute  and 
constitutional  provisions  allow  the  truth  of  an  alleged 
libel  to  be  proven,  in  negativing  malice.  In  some  cases 
there  is  authority  for  proving  malice  in  fact,  notwith- 
standing the  publication  is  a  privileged  one.  So,  where 
a  privileged  publication  is  made  from  malicious  motives, 
and  for  the  sole  purpose  of  injuring,  a  conviction  will  be 
sustained.^ 

3 — Com.  V.  Clap,  3  Am.  Dec.  212,  tondoneios    are    to    breaches    of    the 

4  Mass.  163,  Parsons,  Judge.  peace.      If  the   language   is   action- 

4 — Com.  V.  Clap,  3  Am.  Dec.  212.  able,    the    publication    is   then    pre- 

5 — 3  Greenl.  Ev.,  Sec.  177,  p.  151;  sumed    to    be   malicious,    unless    the 

Com.    V.    Clap,    supra.    Parsons,    J.,  occasion  rendered,  prima  facie  priv- 

says:   "But  the  publication  of  a  li-  ileged.     If  so,  then  the  legal  effect 

bel  maliciously  by  and  with  the  in-  of  the  privilege  is  to  rebut  the  legal 

tent   to   defame,  whether  it  be  true  inference  of  malice  arising  from  the 

or  not,  is  clearly  an  offense  against  words,   and   the   burden   of   proving 

the  law,  on  sound  principles,  which  malice  in  fact  or  express  malice,  is 

must  be  adhered  to  so  long  as  the  then  upon  the  plaintiff;   and  this  is 


572  Criminal  Law 

§  605.  Libel  per  se,  what  is.  AVlien  the  objectionable 
language  is  written  or  printed  and  published,  imput- 
ing to  another  any  act,  the  tendency  of  which  is  to  dis- 
grace him,  or  to  deprive  him  of  the  confidence  and  the 
good  will  of  society,  or  to  lessen  its  esteem  for  him,  is 
actionable  per  se,  and  a  foundation  for  an  indictment.^ 
Sometimes  the  matter  itself  is  not  the  basis  for  a  prose- 
cution for  libel,  but  comments  made  in  reference  thereto 
completes  the  libel.  As  in  the  case  of  the  publication  of 
the  proceedings  in  courts  of  justice.  Matters  before  the 
courts  for  judicial  detemiination,  and  the  proceedings 
therein  may  be  published,  if  accurately  and  truthfully 
done,  and  cannot  be  said  to  cast  reflection  upon  the  par- 
ties thereto  of  which  they  have  any  right  to  com- 
plain, but  if  comments  thereon  are  published,  together 
with  the  report  which  casts  insinuations  or  aspersions 
upon  a  man 's  character,  are  indictable  as  libel."^  It  seems, 
however,  that  criticisms  and  opinions  may  be  expressed 
n])()H  established  facts.  Attorneys  at  law  may  commit 
this  offense  by  setting  out  disgraceful  and  dishonorable 
conduct  in  their  pleadings,  when  such  allegations  are  not 
material,  or  are  improper." 

§  606.  What  is  indictable  libel.  At  common  hiw  tlio 
general  rule  was,  that  eveiy  malicious  publication  which 
was  calculated  to  bring  reproach  upon  another,  or  to 
discredit  him  in  society,  by  cliarging  him  witli  dislionor- 

not  .shown  by  the  mere  falsity  of  the  6 — State   v.    Smiley,   37    Ohio    St. 

publication,   in   the   absence   of   evi-  30,  41   Am.  Rep.  4S7. 

flence  that  the  publisher  knew  it  to  7 — Com.  v.  Blanding,  15  Am.  Dec. 

be  false."     Stewart  v.  Hall,  83  Ky.  210,   3   Pick.   304. 

,  33  S.  W.  420;  adopted  in  the  8— State    v.    Sherid:in,    14     idnlio 

case  of  Com.  v.  Smith,  33  S.  W.  420;  222,  03  P.  G.^d,  I.")  L.  H.  A.  (N.  S.) 

Com.  V.  Duonc  (Pa.)   1  Burney,  GOl,  497;    Palmer   v.   Concord,   48   N.   H. 

2    Am.    Dec.    497;    Baxter    v.    State,  211,    97    Am.    Dec.    GO.I ;    Squires    v. 

34  Tex.  App.  ."JlG,  31  S.  W.  394,  .13  State,   39   Tex.    App.    9G,   45    S.    W. 

A.  K.  S.  720;  Richmond  v.  State,  58  147,  73  A.  S.  R.  904;  State  v.  Brady, 

Tex.  App.  435.   12G   S.  W.   .50G,   137  44     Kiins.    435,    21     A.    S.    R.    29G; 

A.  S.  R.  973.  St;itc    v.    I'.iiriiliimi,   !•    N.    11.   ;M,   31 


Libel  573 

able  conduct,  whether  true  or  not,  was  indictable  libel. 
But  to  this  rule  there  were  some  exceptions,  and  the  truth 
of  the  charge  was  permitted  to  be  shown  in  justification. 
Thus,  summarized  by  Parker,  C.  J.:  "These  exceptions 
are  all  founded  in  regard  to  certain  public  interests, 
which  are  more  important  than  the  character  or  tran- 
quillity of  any  individual.  All  proceedings  in  legisla- 
tive assemblies,  whether  by  speech,  written  documents, 
or  otherwise,  are  protected  from  scnitiny  elsewhere  than 
in  those  places  themselves,  because  it  is  essential  to  the 
maintenance  of  public  liberty,  that  in  such  assemblies 
the  tongue  and  the  press  should  be  wholly  unshackled. 
So,  in  courts  of  justice,  in  which  the  reputation  of  in- 
dividuals may  be  involved,  are  to  be  free  from  ani- 
madversions, because  the  investigation  of  right  involves 
and  demands  the  utmost  latitude  of  inquiry,  and  men 
ought  not  be  deterred  from  prosecuting  or  defending 
these  by  fear  of  punishment  or  dangers.  The  right  of 
complaining  to  any  public  constituted  body,  if  the  mal- 
versation or  oppressive  conduct  of  any  of  its  officers  or 
agents,  with  a  view  of  redress  for  actual  wrong,  or  the 
removal  of  an  unfaithful  officer  may  be  justified,  because 
the  case  will  show  that  the  proceedings  do  not  arise 
from  malicious  motives,  or  if  it  does,  because  the  com- 
mon interest  requires  that  such  representations  should  be 
free.  And  there  are  cases  of  mere  private  import,  such 
as  an  honest,  though  mistaken  character  of  a  sei^ant, 
which  when  questioned  by  anyone  having  an  interest,  the 
law  considers  innocent.  These  cases  are  all  provided  for 
by  the  common  law,  and  they  go  far  to  render  hamiless 
that  much  descried  rule,  that  the  truth  is  no  defense  in 
a  prosecution  for  libel."  ® 

Am.  Dec.  217.     Yet  if  in  these   in-  able  to  the  law.     Com.  v.  Blanding, 

stances,      necessary     indulgence      is  supra. 

abused,  for  malicious  purpose,  a  pre-  9 — Com.  v.  Blanding,  15  Am.  Dec. 

tense  only  being  made,  of  the  form  218-219;    Lock    v.    King,    1    Smeed 

of  legislative  or  judicial  process,  the  131;  Ashley  v.  Young,  2  Burr  802; 

party  so  conducting  himself  is  amen-  Thorn  v.   Blancherd,   5   Johns.   508 ; 


574 


Criminal  Law 


§  607.  Publication   of  proceeding-  in   court.     By  the 

law  of  Eiigiaiid  at  one  time  the  publication  of  exparto 
affidavits,  and  other  proceedings  in  the  courts  of  an  ex- 
parte  nature,  was  an  exception  to  the  rule  that  proceed- 
ing in  the  courts  of  justice  might  be  published  without 
incurring  the  liability  of  libel.^"  The  reasons  assigned 
for  this  exception  of  the  rule  seems  to  have  been,  that 
the  party  against  whom  the  defamatory  language  had 
been  directed  had  not  had  an  opportunity  to  be  heard 
upon  the  matter  set  out  in  such  proceedings,  and  the  in- 
ference was,  that  he  was  slandered  without  the  oppor- 
tunity of  being  heard.  Preliminary  hearings,  deposi- 
tions taken  before  magistrates  and  the  like  included 
most  of  such  instances  in  which  tlie  exception  became 
operative.  This  rule  seems  not  to  any  groat  extent  have 
found  favor  in  the  courts  of  the  American  states,  at  least 
we  have  not  come  across  any  adjudication  sustaining  the 
doctrine  in  a  criminal  case."  This  nile  probably  does 
not   prevail   in   tlie  American  states  in  the  matters   of 


state  V.  Torbusgh,  32  S.   Uak.  .S70, 

143  N.  W.  279,  Ann.  Cas.  1916  A, 
424;   State  v.  Sefrit,  82  Wash.  520, 

144  P.  725;  Peoi>lc  v.  Stranch,  153 
111.  App.  544;  see  247  III.  220,  93  N. 
E.  126;  State  v.  Tolley,  23  N.  Dak. 
136  N.  W.  784. 

10 — Starky  on  .slaiuli  r,  2()"). 

11 — In  the  case  ol'  the  Cincinnati 
Gazette  v.  Tiinlierlake,  which  was  a 
suit  for  lihcl  for  the  ])ul)lication  of 
an  expartu  allidavit,  preliminary  to 
an  arrest,  the  court  lield,  that  an 
action  in  the  way  of  a  civil  suit 
coulrl  he  inaintainrd.  i'.ut  tin'  cdurt 
said:  "We  do  not  wish  to  he  uinier 
stood  as  denying  the  rifjht  to  ])ul)- 
ii'^h,  without  malice  a  fair  and  full 
H'port  of  judicial  proceedings  !"■ 
fore  examining  courts,  wher<'as  in 
this  country,  such  proceedings  arc 
held   iMildicly  in  the  presence  of  tin- 


party  accused,  and  with  full  oppor- 
tunity of  defense  on  his  part.  This 
question  we  neither  deny  nor  assert, 
for  that  question  is  not  before  us." 
78  Am.  Dec.  285,  10  Ohio  St.  548. 
Lord  Ellensborough  in  Rex  v.  Fisher, 
said:  "Trials  :it  l:nv  fairly  reported, 
althoiij^h  they  may  occasionally 
prove  injurious  in  individuals,  have 
been  held  to  be  i)rivileged.  Let  them 
continue  .so  i)rivile}ieil.  The  benefit 
they  produce  is  great  and  ])erjMiinent, 
,iimI  the  csil  tli;it  arises  from  tlicm  is 
i;irc  ;iiid  iiicHlmta  1.  Hut  these  i)re- 
liiiiinary  cx;!!!!)!),!!  ions  have  lu)  such 
privilege.  Their  only  tendency  is  to 
prejudge  those  whom  the  law  still 
presumes  to  be  innocent,  and  to  jioi 
sou  the  sources  of  justice.''  Cited 
in  the  case  of  Ciiicimiat  i  (lazette  v. 
Timlicrlake,  supni. 


Libel  575 

preliminary  trials  before  justices  of  the  peace,  and  other 
inferior  courts,  for  the  reason  that  defendants  in  these 
matters  have  ample  opportunity  to  defend  against  any 
charge.  In  Ireland  the  rule  was  denied  before  the 
Queen's  Bench,  for  a  newspaper's  publication  of  proceed- 
ings, althougli  the  same  reflected  upon  the  character  of 
the  defendant. 

§  608.  What  are  privileged  in  court  proceedings.    Any 

defamatory  testimony  given  l)y  a  witness  in  a  cause, 
when  the  statement  of  the  witness  is  a  material  matter 
in  the  cause  in  which  he  gives  it,  is  privileged. ^^  So  are 
the  pleadings  and  statements  by  attorneys  made  in  a 
cause  pending  in  a  court  having  jurisdiction."  So,  also, 
are  the  statements  of  the  judges  made  in  a  cause  then 
pending.^^ 

§  609.  As  to  legislatures.  The  legislative  bodies  of  the 
country,  organized  and  engaged  in  the  public's  business, 
are  by  reason  of  the  nature  of  the  business,  exempt  from 
criminal  liability  for  utterances  made  therein,  or  for  the 
publication  of  any  of  the  matters  before  them.  No  one 
shall  be  questioned  as  to  his  conduct  and  speech  therein, 
except  by  the  bodies  themselves.  This  limitation  is  of 
course  confined  to  the  duties  incident  to  the  public's  busi- 
ness. Where  remarks  or  statements  are  made  deroga- 
tory to  another,  unofficially,  it  loses  its  privileged  charac- 
ter. So,  also,  those  persons  who  publish  the  proceed- 
ing had  before  a  legislative  body  is  privileged  for  the 
same  reason  that  proceeding  before  the  court  are  privi- 
leged.^^ 

§  610.  Communications  between  persons  in  interest. 
Communications  made  by  one  to  another  in  and  concern- 

12—13  Eng.  &  Am.  Eucly.,  p.  408.  15— Com.  v.  Blanding,  15  Am.  Dec. 

13—13  Eng.  &  Am.  Eiiely.,  p.  40P  210;  Coffin  v.  Coffin,  4  Mass.  1,  1 
and  authorities  cited.  Kent  235. 

14 — Taylor  v.  Goodrich,  40  S.  W. 
(Tex.)  515. 


576  Criminal  Law 

ing  matters  of  which  they  are  mutually  interested,  or 
otherwise  pri^^'  are  privileged.  As  is  also  any  com- 
munication in  which  a  duty  or  obligation  is  due  the  pub- 
lic that  the  information  be  given." 

§  611.  Inquiries  as  to  another  character.  Answers 
made  to  inquiries  of  and  concerning  the  character  of 
another  person  under  circumstances  reasonably  indicat- 
ing that  the  inquiries  are  made  for  innocent  said  laud- 
able purposes,  are  privileged.  So,  where  a  person  in 
good  faith,  with  the  view  of  dealing  with  another,  makes 
inquiries  of  third  persons  concerning  his  character,  is  not 
criminally  libel.-^' 

§  612.  Reports  of  mercantile  agencies.  Reports  made 
by  mercantile  agencies  to  their  customers  of  the  finan- 
cial condition  of  other  persons  are  privileged,  if  there 
is  no  malice  and  no  defamation.  Such  communications 
and  reports  must  be  made  to  persons  that  are  interested 
particularly  in  the  matter  reported.  For  it  is  held  that 
it  is  not  a  privileged  communication  for  a  mercantile 
agency  to  report  generally  the  financial  and  personal 
character  of  a  person  which  may  go  to  all  its  subscribers 
alike." 

§  613.  Candidates  fcr  office.  Persons  who  become 
candidates  for  oilice  thereby  place  their  characters  and 
fitness  for  official  position  in  issue — it  being  a  matter  of 
])ublic  interest.  Where  a  written  statement  is  published 
effecting  one's  character,  fitness  and  qualifications  for 
such  positions,  done  in  good  faith  and  free  from  malice, 
for  the  ))ui])(>s('  of  infoi'ming  tlie  jniblic  oi"  the  electors 

IG— Vaiiwick  v.   As])cii\vall,   17   N.  18— State    v.    Loiisdalo,    4S    Wis. 

V.  190;   King  V.  Pattorsoii,  49  N.  .1.        348,  4  N.  W.  390;  Rradstn-ot  v.  (!ill 
L.  417.  60  Am.  Kcp.  ()2'J.  ('IVx.),  9  S.  W.  753. 

17_Stat(!  V.  Londale,  48  Wis.  348, 
4  \.  W.  390;  Storey  v.  Challeiuls, 
8  ('.  &  P.  23.4. 


Libel  577 

is  privileged. ^^  But  in  a  Texas  case,  where  the  prose- 
cutor was  a  nominee  of  the  Democratic  party,  and  the 
defendant  made  and  forged  a  writing  purporting  to  be 
the  act  and  writing  of  the  prosecutor,  setting  forth  and 
expressing  faith  in  the  third  party  platforai,  and  prom- 
ising to  become  one  of  their  number  for  the  next  suc- 
ceeding two  years,  and  a  further  expression  of  belief 
in  the  American  Protective  Association  as  the  coming- 
party,  the  communication  marked  ''confidential"  and 
directed  to  the  People's  Party  Club,  Texas;  was  held  to 
be  nonprivileged.^" 

§  615.  Public  officers.  Public  officers  and  their  offi- 
cial actions  may  be  commented  upon.  One  charging  an 
officer  with  official  misconduct,  before  the  accused  is 
entitled  to  the  defense  of  privileged  communication,  he 
must  show  the  truth  of  what  he  says.  "If  it  be  found 
that  the  occasion  was  of  itself  a  proper  one,  the  defend- 
ant may  justify  the  publication  by  proving  the  tiTith  of 
the  matter  alleged.  But  in  such  case  the  justification 
must  be  as  broad  as  the  charge.  It  seems  to  be  going 
quite  far  enough  for  any  useful  purpose,  to  hold  that 
an  individual  may,  without  actual  necessity,  publish 
what  is  false  of  another,  if  he  had  probable  cause  for 
doing,  and  was  actuated  by  good  motives.  The  authori- 
ties, it  is  believed,  will  carry  us  no  further. ' '  ^^ 

19 — Com.  V.  Clap,  3  Am.  Dec.  212 ;  port   in   the   election.      If    such    cir- 

Blanding  v.  Com.,  15  Am.  Dec.  210.  cular   was   true,   he   was   acting   the 

20 — "The  charge  that  the  prose-  part  of  a  hypocrite  and  a  traitor; 
cutor,  Walker,  while  ostensibly  a  and  certainly  in  our  opinion,  if 
Democrat  and  the  nominee  of  the  guilty  of  such  conduct,  it  was  cal- 
Democratie  Party,  had  written  and  culated  to  bring  him  into  disgrace 
signed  a  secret  circular,  and  sent  the  and  reproach  among  gentlemen,  arid 
same  abroad  to  certain  parties  ab-  should  justly  subject  him  to  the  con- 
negating  a  belief  in  the  principles  of  tempt  of  all  honorable  persons." 
the  party,  whose  cause  he  was  openly  Squires  v.  State  (Tex.),  45  S.  W. 
espousing,   and  professing  belief  in  147. 

the    Populist,   the    opposing   party;  21 — State    v.    Burnham,    31    Am. 

thus  treacherously  seeking  their  sup-  Dee.  223,  13  Am.  &  Eng.  Encly.  430. 

C.  L.— 37 


578  Criminal  Law 

§  616.  Elements  of  the  offense.  This  crime  is  com- 
posed of  three  elements,  which  is  required  by  the  govern- 
ment to  be  proven  before  a  con\T.ction  can  be  had.  (1) 
The  defamatoiy  matter  must  be  in  writing,  signs,  pic- 
tures, effigies,  or  in  some  other  form  of  like  character. 
(2)  The  said  defamatoiy  matter  must  be  published.  (3) 
Malice.  The  failure  to  prove  any  one  of  these  elements 
will  not  warrant  the  conviction.  The  mere  printing  and 
the  publication  will  not  in  all  cases  be  sufficient  to  con- 
vict. In  a  great  many  cases  the  publication  of  the  libel- 
ous matter  is  sufficient  to  establish  the  malice.  In  other 
words,  actual  malice  is  not  in  all  cases  required  to  be 
proven.  Yet  there  are  cases  w^here  the  actual  malice  is 
to  be  proven. 

§  617.  What  constitutes  publication.  Tlie  publication 
in  criminal  libel  is  sufhciont  if  the  same  is  read  and  seen 
only  by  the  one  defamed.^^  A  different  rule  it  seems 
prevails  in  civil  libel.  In  the  latter  the  publication  to 
be  the  basis  of  damages  must  have  been  published 
to  some  third  party.  The  mailing  a  defamatory  com- 
munication to  another  is  a  sufficient  publication,  the  pre- 
sumption being  that  it  w^as  received  by  the  party  to 
whom  it  was  directed  in  due  course  of  the  mails.'^^  The 
delivery  of  a  communication,  defamatory  in  its  nature, 
by  any  third  person,  even  unread  and  seen  ])y  him,  to 
one  for  wliom  it  was  intended,  is  sufficient.  So,  where 
one  pul)lishes  a  defamation  concerning  another,  and  who 
at  the  time  expresses  disbelief  in  its  truthfulness,  is  yet, 
nevertheless,  guilty  of  the  libel;  for  the  publication  is 
just  as  injurious  in  effect,  or  at  least  some  other  person 
may  believe  it  and  thereby  injure  the  party  libeled.  So, 
also,  where  one  being  the  part  owner  in  a  newspaper, 
in  wliicli  a  dofaniMiory  pnblicalion   appears  against  his 

22- -State  v.  Avery,  7  Conn.  226. 
23— Rtato  V.   Horrick,  3  Cr.  Law 
M'.iii.    179. 


Libel  571) 

wishes,  the  other  owners  who  publish  it  with  knowledge 
of  its  true  character  are  guilty  of  the  libel. "^ 

§  618.  Criminal  slander.  The  books  sometimes  speak 
of  criminal  slander,  but  this  may  be  explained  by  say- 
ing that  at  common  law  the  defamatory  statement  ver- 
bally made  was  not  criminally  punished.  The  term 
* '  criminal  slander ' '  can  only  have  reference  to  statutory- 
provision,  which  makes  certain  oral  statements  made 
of  or  concerning  the  character  of  another,  criminal.  Most 
of  the  states  have  statutes  which  in  terms  provide  that 
an  imputation  of  the  want  of  chastity  shall  be  punished 
criminally.  A  slander  at  the  common  law  had  reference 
to  oral  words  and  statements  made  of  another,  imputing 
to  him  some  disgraceful  conduct,  or  which  was  calcu- 
lated to  injure  his  standing  and  his  character,  or  which 
had  the  tendency  to  do  so,  or  which  injured  him  in  his 
business,  trade  or  profession.  Redress  consisted  in  a  suit 
for  damages  for  the  loss  of  reputation,  business  and  the 
like. 

24 — Com.  V.  Chambers,  3  Cr.  Law 
Mag.  543. 


CHAPTER  XXXIII 

KIDNAPPING  AND  FALSE  IMPRISONMENT 

§  619.  Definition.  §  623.  Indictment. 

§  620.  Kidnapping  and  false  impris-  §  624.  Form  of  indictment   of  false 

onment.  imprisonment    held    to    be 

S  621.  Of  false  imprisonment.  good. 

§  622.  The    person    must    be    taken 

against  his  will. 

§  619.  Definition  of  kidnapping.  Kidnapping  or  steal- 
ing by  force,  any  man,  woman,  or  child,  and  cariying 
them  from  their  country  to  another,  was  by  the  com- 
mon law  a  misdemeanor,  and  punished  by  fine  and  im- 
prisonment. The  common  law  confined  the  offense  to  be 
the  transporting  a  person  beyond  the  realm  or  beyond 
the  colonies.  '*  Kidnapping  is  unquestionably  a  very 
heinous  crime,  as  it  robs  the  king  of  his  subjects  and 
banishes  a  man  from  his  countiy.  "^  This  idea  of  the 
common  law  has  not  been  adopted  in  the  American  states, 
but  a  more  liberal  doctrine  has  been  adopted,  and  the 
offense  seems  to  be  complete,  when  the  person  coerced, 
is  forceably  carried  from  his  place  of  residence,  or  domi- 
cile to  that  of  another.  The  better  doctrine  is,  that  any 
power  brought  to  bear  which  produces  a  fear,  will  con- 
stitute the  crime. 

§  620.  Kidnapping  and  false  imprisonment.  False 
imprisonment  is  a  common  law  offense,  and  its  under- 
lying principles,  are  not  very  unlike  those  governing 
"man  stoaliiip:  or  kidnapping."  "It  is  treated  (speak- 
ing of  kidnapping),  as  an   aggravated  species  of  false 

1—4  I'.la.  21!t;  Click  v.  Stat.',  V.  :!7.S;  State  v.  Kollins,  H  .M.  II. 
.T  Tex.  2«2:   H.Mldrn  v.  I'mpl.-,  2.'  X.        .I.^d ;  Mooily  v.  People,  20  111.  .'nf). 

."380 


KiDXAPPiN'G  AND  False  Imprisonment  581 

imprisonment.  All  the  ingredients  in  the  definition  of 
the  latter  offense  being  necessarily  comprehended  in  the 
former,  with  the  additional  ingredient  of  carrying  the 
person  imprisoned  out  of  his  own  country  and  beyond 
the  protection  of  its  laws."  ^ 

§  621.  Of  false  imprisonment.  We  have  grouped 
"kidnapping  and  false  imprisonment,"  together  in  dis- 
cussion because  the  principles  are  almost  the  same  as 
stated  in  a  preceding  page.  "Every  confinement  of  a 
person  is  imprisonment,  whether  it  be  in  a  common 
prison,  or  in  a  private  house,  or  in  the  stocks,  or  by 
forcibly  detaining  in  the  streets. ' '  ^  When  the  imprison- 
ment is  shown  to  have  existed,  then  it  is  incumbent 
upon  the  defendant  to  show  that  he  did  not  imprison,  or 
to  show  some  kind  of  justification  for  the  arrest  or  de- 
tention.* The  crime  of  false  imprisonment  is  made  out 
when  it  is  shown  that  the  defendant  arrested  another 
under  an  illegal  warrant.  So  it  seems  that  if  the  arrest 
is  upon  legal  authority.  Init  the  party  is  detained  for  a 
longer  time  than  is  necessary,  this  will  make  the  false 
imprisonment.^  One  who  arrests  must  do  so  at  his  peril, 
for  if  his  authority  is  not  in  confonnity  to  the  law,  the 
detention  is  false  imprisonment.^  So.  also,  if  one  is  act- 
ing as  an  assistant  of  an  officer  he  does  so  at  his  peril, 
for  he  is  required  to  ascertain  for  himself  that  the  offi- 
cer is  authoiized  to  act."'  But  a  person  who  as  a  mere 
obsei-ver  stands  by  and  witnesses  the  arrest  of  another 
person,  is  not  guilty  if  he  does  nothing  to  prevent  it. 
So,  an'esting  another  by  authority  of  an  invalid  munic- 
ipal ordinance  is  false  uuprisonment  in  the  officer.' 

2 — ^Note  to  People  v.   DeLeon,  4  5 — Lavina  v.  State,  63  Ga.  513. 

Am.    St.   Eep.    447;    People   v.    De-  6 — Mitchell  t.  State,  12  Ark.  50. 

Leon,  109  X.  Y.  226,  16  N.  E.  46,  4  7— Mitchell  v.  State,  12  Ark.  50. 

A.  S.  B.  444.  8 — State  v.  Hunter,  106  N.  C.  796, 

3— Floyd  V.  State,  12  Ark.  43.  11  S.  E.  366. 

4 — Floyd  V.  State,  12  Ark.  43. 


582  Ckiminal  Law 

§  622.  The  person  must  be  taken  against  his  will.  At 
the  common  law  kidnapping  seems  to  have  been  such  a 
taking  as  was  by  actual  force  and  against  the  positive 
will  of  the  party,  and  carried  beyond  the  seas,  or  beyond 
the  reahii.  The  reason  of  the  crime  seems  also  to  have 
been  based  upon  two  causes:  1.  That  it  was  an  offense 
against  the  person  and  personal  liberty.  2.  That  by 
such  an  act  the  king  lost  a  subject.  Anciently  the  sub- 
jects of  the  British  Government  were  not  pennitted  to 
leave  the  kingdom  without  the  consent  of  the  king  or 
his  officers.  At  the  common  law  it  was  an  essential  in- 
gredient that  the  person  be  taken  from  the  realm.  To 
take  him  by  force.  To  take  him  and  place  him  in  a  se- 
cret prison  within  the  kingdom  was  false  imprisonment 
and  not  kidnapping.  The  crime  of  kidnapping  the  per- 
son must  be  carried  beyond  the  realm,  in  the  false  im- 
prisonment he  need  not  be.^  Taking  a  child  under  the  age 
of  discretion,  non  compos  mentis,  lunatics,  and  persons 
otherwise  unconscious  and  incapable  of  giving  a  con- 
sent, was  by  the  common  law  equivalent  to  taking  against 
the  will  of  the  party.  So,  under  the  terms  of  a  statute 
of  New  York  using  the  words  ''seizes,  confines,  inveigles 
or  kidnaps  another  with  intent  to  cause  him,  without 
authority  of  law,  to  be  secretly  confined  or  imprisoned 
within  the  state,  or  to  bo  sent  out  of  the  state,  or  to  be 
Hokl  as  a  shivo,  or  in  any  way  he  held  to  service,  or  kei)t 
oi-  liold  against  his  will,"  one  who  by  false  and  fraudu- 
lent representations  induces  another  to  go  beyond  the 
state,  such  consent  is  equivalent  to  "against  her  will."  ^° 
"Any  tlircats,  I'l-aiid  or  ai)peal  to  the  fears  of  the  indi- 
vidual, which  subjects  the  will  of  the  person  abducted 
as  fully  to  tlie  control  of  the  other  as  if  actual  forc(^  was 

9—4   Bla.219,   1   Kast  P.  <;.  4.10.  10— I'eoplo    v.    DeLeon,     109    N. 

Heo  State  v.   IJollins,  8  N.   II.  r>.10;        Y.  226,  4   Am.   St.  Rpp.   444.   Ifi  N. 
Clirk  V.  State,  3  Tex,  280.  I-.    If.. 


Kidnapping  and  False  Imprisonment  583 

employed  will  make  the  offense  as  complete  as  by  the 
use  of  physical  force  and  violence. ' ' " 

§  623.  Indictment.  For  our  present  purpose  no  bet- 
ter statement  of  the  requisite  of  the  indictment  can  be 
made  than  the  following:  ''The  requisites  in  an  indict- 
ment for  kidnapping  at  common  law  would  seem  to  be: 
1.  An  averment  of  an  assault.  2.  The  cariying  away  or 
transporting  of  the  party  injured,  from  his  own  country 
into  another,  unlawfully  and  against  his  will. ' '  ^^  The 
indictment  should  state  specifically  the  fact  and  circum- 
stances which  constitutes  the  offense.  The  statute  may 
be  followed,  but  the  general  rule  will  apply  in  the  case 
as  in  others,  that  if  the  statute  is  not  specific  enough, 
then  the  pleader  will  be  required  to  plainly  set  out  the 
offense  so  as  to  come  within  the  term  of  the  statute  and 
the  principles  of  the  offense. 

§  624.  Form  of  indictment  of  false  imprisonment  held 

to  be  good.    That  C  D  on  the day  of 184 — , 

with  force  and  anus,  at ,  in  and  upon  A  B  in  the 

peace,  etc.,  did  make  an  assault,  and  him,  the  said  A  B, 
did  then  and  there  beat,  wound  and  ill  treat,  etc.,  and 
him,  the  said  A  B,  then  and  there  unlawfully  and  in- 
juriously against  the  will,  and  without  the  consent  of 
him,  the  said  A  B,  without  any  legal  warrant,  authority 
or  justifiable  cause  whatsoever,  did  imprison,  confine 
and  detain,  for  a  long  time,  to  wit:  three  days,  and  etc., 
against  the  peace  and  dignity  of  the  state  of  Arkansas.*' 

11— Moody  V.  People,  20  111.  315;  13— Floyd  v.   State,    12   Ark.   43; 

Note   to   People   v.   DeLeon,  4  Am.       Mitchell  v.  State,  12  Ark.  50. 
St.  Eep.  444. 

12 — Note    to    People    v.    DeLeon, 
4  Am.  St.  Rep.  449,  and  cases  cited. 


CHAPTER  XXXIV 

MALICIOUS  MISCHIEF 
§  G25.  The   offense   at   common   law.       §  626.  The    intent. 

§  625.  The  offenses  at  common  law.  There  is  some 
doubt  whether  this  ol'feiise  was  punishable  at  common 
law.  At  least  it  is  doubtful  whether  it  is  considered  so 
in  the  several  jurisdictions.  The  court  in  an  Arkansas 
case  says  that,  "It  is  difficult  to  state  with  minute  pre- 
cision what  is  necessary  to  constitute  malicious  mischief 
at  common  law.  It  has  been  so  much  legislated  upon, 
and  at  such  an  early  day,  that  its  common  law  limits 
are  indistinct,  Bhickstone  classes  it  along  with  larceny 
and  forger}^,  and  after  treating  of  larceny,  says,  'mali- 
cious mischief,'  or  damage,  is  the  next  species  of  injury 
to  private  property  which  the  law  considers  a  public 
crime.  This  is  such  as  is  done  animo  furandi,  or  with 
an  intent  of  gaining  by  another  man's  loss,  which  is 
some,  though  a  weak  excuse,  but  either  out  of  a  spirit 
of  wanton  cruelty,  or  black  and  dial)olical  revenge,  in 
wliicli  it  bears  a  new  i-clalioii  to  the  crime  of  arson;  for 
as  that  affects  tiie  liabilalion,  so  this  does  the  other  prop- 
erty of  individuals.  And,  therefore,  any  damage  aris- 
ing for  this  mischievous  disposition,  though  only  tres- 
pass at  coiimioii  law,  is  now,  ])y  a  niuKihKh'  of  slalules, 
7]ia(h!  penal  in  the  highest  degi'ee.  Some  judges,  relying 
on  this  passagi',  and  tiie  understanding  the  woi'd  'tres- 
pass' tlierein  according  to  its  modern  signification,  liave 
denied  that  the  olTense  of  malicious  tnischie!"  existed 
under  the  coiinnon  law  of  this  country.  Hut  upon  a 
cai'eful  reading  it  is  obxious  that  the  word  Mres])ass'  is 
used  li_\'   I  >hi('l<stone  in  this  passage  in  the  sense  of  'niis- 

584 


Malicious  Mischief  585 

demeanor.'  Without  further  discussion  it  is  sufficient 
to  say,  that  according  to  the  weight  of  authority,  and 
the  better  and  prevailing  opinion,  the  offense  of  malicious 
mischief  exists  under  the  common  law  of  this  country."  ^ 
There  is  other  authority  sustaining  this  conclusion  of 
the  court,  and  we  believe  that  it  may  be  prosecuted  in 
the  absence  of  a  statutoiy  prohibition  under  the  com- 
mon law.  Practically,  it  is  of  very  little  importance, 
whether  we  consider  it  a  crime  at  common  law,  for  the 
statutes  of  the  states  provide  by  minute  particulars  what 
shall  constitute  the  crime. 

§  626.  Intent.  It  is  very  evident  that  at  the  common 
law,  and  by  the  early  statutes  upon  this  subject,  the 
character  of  injury  to  the  private  property  of  the  in- 
dividual was  a  very  material  matter  in  determining  the 
intent.  The  intent  must  have  been  predicated  upon  some 
ill  will  against  the  owner  of  the  property,  and  not  against 
the  property  itself.^  This  is  also  true  in  a  large  propor- 
tion of  the  statutes  of  the  states.  The  mere  willful  kill- 
ing the  stock  of  another  for  the  purpose  of  preventing 
trespassing  is  not  malicious  mischief.  There  are  statutes 
however  making  it  a  penal  offense  to  cruelly  abuse  ani- 
mals, the  ingredients  of  which  is  not  dependent  upon  an 
intent  to  do  the  owner  any  injury,  but  to  prevent  the 
cruelty  to  the  animal.  The  act  of  abuse  is  sufficient  to 
cover  the  intent.  In  order  to  prevent  trespass  and  injury 
to  property,  the  owner  may  in  the  defense  of  his  property 
totally  destroy  such  trespassing  property.  Thus,  where 
the  statute  used  the  phrase  '' unlawful  and  willful  de- 
struction," etc.  The  court  says  that,  "If  it  was  intended 
that  the  act  alone  should  constitute  the  crime,  irrespective 

1— state  V.  Watts,  48  Ark.  56,  3  State,    51    Miss.    353;     Newton    v. 

Am.   St.   Eep.   216.     See  Wright  v.  State,  3  Tex.  App.  245.     See  eases 

State,   76   Am.   Dee.   656   and  note.  compiled  14  Am.  &  Eng.  Encly..  p. 

2— Wright   V.   State,   30   Ga.   325,  11. 
76    Am.    Dee.    656;     Thompson    v. 


586  Criminal  Law 

of  the  motive,  then  I  do  not  think  the  legislature  would  in 
enacting  the  section  have  used  the  expression  'unlaw- 
fully.' It  would  have  been  sufficient  to  have  said  Svill- 
fully.'  The  intent  to  destroy  undoubtedly  existed;  but  if 
the  jury  should  believe  to  be  shown  by  evidence  that  the 
act  was  in  the  defense  of  the  possession  of  property,  the 
criminality  was  lacking  which  constitutes  the  punishable 
offense  against  the  people. ' '  ^ 

3— People  V.  Kane,  131  N.  Y. 
Ill,  27  Am.  St.  Eep.  575,  29  N.  E. 
1015. 


CHAPTER  XXXV 

MAYHEM 

§  627.  Defined.  §  630.  What     included     under     the 

§  628.  Early   English    Statutes.  statutes. 

§  629.  What   was   included    at    com-  §  631.  As  to   the   intent, 

men  law.  §  632.  The  indictment. 

§  627.  Offenses  at  common  law  defined.  j\Iayliem  at 
common  law  is  defined  to  be,  violently  depriving  another 
of  the  use  of  his  members,  as  may  render  him  less  able  in 
fighting  either  to  defend  himself  or  to  annoy  his  enemy.^ 
This  offense  at  common  law  confined  itself  to  those  mem- 
bers and  parts  of  the  body  which  are  used  in  the  defense 
of  one's  person  from  a  violent  assault.  To  cut  off  the 
nose  or  the  ear,  the  absence  of  which  only  disfigures  and 
does  not  weaken  the  body,  was  not  mayhem  at  common 
law.^  It  can  be  gathered  from  all  the  ancient  authori- 
ties that  originally  mayhem  extended  to  those  parts  of 
the  body  more  or  less  suited  for  the  defense  of  the  reaJm, 
and  not  to  those  limbs  used  in  defense  of  the  person 
only;  but  however  this  may  be,  there  are  many  statutes 
which  seem  to  be  common  law  with  us,  with  provisions, 
such  as  cutting  out  the  tongue,  putting  out  the  eye, 
slitting  the  nose,  cutting  off  the  nose,  castration,  etc., 
which  was  mayhem,  and  punished  as  a  felony. 

§  628.  Early  English  statutes.  The  first  of  these  stat- 
utes, 5  Henry  IV,  C.  5,  created  to  remedy  the  mischief 
of  beating,  wounding  or  robbing  a  man,  putting  out  his 
eye,  cutting  out  his  tongue  to  prevent  him  from  giving 
evidence  against  the  perpetrator,  may  be  common  law 

1_4  Bla.  205.  2—4  Bla.  205  aJid  206. 

587 


588  Criminal  Law 

with  us.  37  Henry,  provides,  that  any  man  who  mali- 
ciously and  unlawfully  cuts  off  the  ear  of  any  of  the  king 's 
subjects,  shall  forfeit  tribble  damages  to  the  party  ag- 
grieved, and  also  the  further  punishment  of  fine  and 
imprisonment  at  the  suit  of  the  king.  Another  statute, 
said  by  Blackstone  to  be  known  as  the  Coventry  Act, 
22  and  23,  Charles  II,  is  enacted,  that  if  any  person  shall, 
with  malice  aforethought,  lying  in  wait,  unlawfully  cuts 
out  or  disable  the  tongue,  puts  out  the  eye,  slits  the  nose, 
or  slits  or  cuts  off  or  disables  any  limb  or  member  of  any 
other  person,  with  the  intent  to  maim  or  disfigure,  such 
person,  his  counselors,  aiders  and  abettors  shall  be 
guilty  of  felony,  without  the  benefit  of  clergy.  All  the 
foregoing  were  repealed  by  9  Geo.  IV,  c.  31,  and  7  and  8 
Geo.  rV,  27.  Whether  or  not  all  or  any  of  the  above  stat- 
utes are  common  law  with  us,  appears  to  make  no  dif- 
ference, since  quite  all  of  the  states  have  statutes  enlarg- 
ing or  curtailing  them,  but  all  are  modeled  after  these 
English  examples.' 

§  629.  What  was  included  at  common  law.  It  may  be 
deduced  with  a  degree  of  certainty,  that  at  common  law 
the  offense  of  niayhem  included  only  those  limbs  or 
members  of  the  body  used  in  the  defense  of  one's  per- 
son, or  such  other  parts  of  the  body,  the  loss  of  which 
tended  to  decrease  the  courage  and  manhood  of  the 
individual.  Anciently  it  was  a  misdemeanor,  and  as  such 
in  this  country  is  punished  by  fine  and  imprisonment,* 
in  some  instances,  l)ut  very  often  is  a  felony  and  pun- 
ished by  imprisonment  in  the  penitentiaiy. 

§  630.  Of  what  is  included  in  the  crime  under  the  stat- 
utes.    At  the  connnon  law,  the  cutting  off  the  ear  or  the 

3—4  Bla.  205,  207,   1    East  P.  ('.  IIIkIi    v.    Rtatc,    20    Tex.    App.    545, 

393,  394,  1  Hawks.  P.  C.  108;  Green  10  S.  W.  238,  8   A.   S.  R.  488. 
V.    State,    151    Ala.    14,   44   So.    194,  4—4  Bla.  20.''),  .'!  Bla.   145. 

125   A.   S.    H.    17,    15   Am.   Cna.   81; 


Mayhem  589 

nose,  or  the  mere  wounding  of  the  body  of  another  was 
not  mayhem.  "Maiming"  as  used  in  the  statutes  is 
synonymous  with  the  common  law  ''mayhem,"  and  are 
but  equivalent  words,  the  difference  being  in  the  orthog- 
raphy and  not  in  meaning.^  So,  under  the  terms  of  a  stat- 
ute providing  it  a  felony  to  cut  out  or  disable  the  tongue, 
put  out  an  eye,  slit  a  nose,  bite  oif  or  cut  off  a  nose  or  lip 
or  cut  off  or  disable  any  limb  or  member  of  any  person, 
with  intent  to  maim  or  disfigure,  an  ear  could  not  be  dis- 
abled within  the  meaning  of  the  statute,  and  was  not 
included  therein.^  At  the  common  law  the  wounding  or 
the  injury  of  any  part  of  the  body,  so  as  to  have  the  ef- 
fect to  abate  or  lessen  the  courage,  the  physical  and  men- 
tal ambitions,  such  as  castration,  or  the  permanent  in- 
jury to  the  organs  of  generation,  was  sufficient  to  con- 
stitute the  offense.  So,  under  a  statute  making  it  may- 
hem to  ''willfully  and  maliciously  to  injure,  wound,  or 
disfigure  the  private  parts  of  another  with  the  intention 
to  maim  or  disfigure,  the  malicious  injuring  the  private 
parts  of  a  female  was  held  to  amount  to  the  crime  of  may- 
hem.''^ To  maliciously  deprive  another  of  a  front  tooth, 
or  to  maliciously  shoot  off  the  toe,  constitutes  the  crime. ^ 
As  we  have  seen  at  the  common  law  the  offense  was  con- 
stituted, only  where  a  person  was  rendered  less  able  to 
defend  himself  or  to  be  impaired  in  his  ability  to  annoy 
his  enemy,  by  a  permanent  injury  to  those  parts  and  mem- 
bers of  his  body  which  lessened  his  physical  prowess,  or 

5— state  V.  Johnson,  58  Ohio  St.  8— Baker    v.    State,    4    Ark.    56; 

flep.  417,  51  N.  E.  40,  65  Am.   St.  State   v.   Briley^   8   Port.    412.      See 

Eep.     770;     Websters'     Unabridged  note   to   State   v.   Johnson,    65    Ajn. 

Dictionary.  St.    Rep.    770;    State    v.    Ma    Foo, 

6— United     States    v.     Askins,     4  110   Mo.   7,   33    Am.   St.   Eep.   415; 

Cranch.  C.  C.  98;   Molette  v.  State,  State  v.  Bowers,  24  Tex.  App.  542, 

49    Ala.    18;    People   v.    Golden,    62  5  Am.  St.  Rep.  901;  Davis  v.  State, 

Cal.    542;     State    v.    Conahan,    10  22    Tex.   App.   45. 
Wash.    268. 

7— Kitchens  v.  State,  80  Ga.  812; 
Moore  v.  State,  4  Chand.  170. 


590  Criminal  Law 

dimiuislied  his  courage.  The  question  of  the  mere  dis- 
figurement of  his  person  did  not  enter  into  the  elements 
of  the  crime.  But  under  the  statutes,  the  common  law 
is  enlarged  so  as  to  include  those  injuries  which  mar  the 
beauty,  comeliness  and  completeness  of  the  body.  So, 
generally  it  may  be  said  that  our  statutes  make  any  cut- 
ting off  of  the  lip,  the  cutting  off  of  the  ear,  the  slitting  or 
biting  off  of  the  nose,  cutting  off  the  finger,  the  arm, 
the  hand,  the  toe,  foot,  the  leg,  or  any  member  of  the 
body,  or  of  injury  to  the  organs  of  generation,  or  the  put- 
ting out  the  eyes,  or  the  injury  thereto,  mayhem.^ 

§  631.  As  to  the  intent.  There  must  be  a  willful  and 
malicious  intent  to  injure  the  person  in  the  manner  pro- 
vided by  the  statute,  it  is  not  required  to  have  been  done 
with  premeditation.  The  intention  is  to  be  presumed 
from  the  manner  and  the  means  of  inflicting  the  injury. 
A  willful  act  is  one  committed  with  an  evil  intent,  with- 
out reasonable  grounds  to  believe  it  lawful,  and  without 
legal  justification.  A  malicious  act  is  one  done  in  a  state 
of  mind  which  shows  a  heart  regardless  of  social  duty, 
and  fatally  bent  on  mischief.  A  wrongful  act  intention- 
ally done  without  legal  justification  or  excuse.  Under 
the  statute  of  the  state  of  New  York  a  premeditated  de- 
sign, is  necessary  to  the  conviction,  and  it  must  be  pleaded 
and  proved.  And  under  such  statute  it  appears  that  the 
premeditation  will  not  be  presumed  from  the  act  itself.^** 
But  this  rule  stands  in  conflict  with  great  weight  of 
authority. 

§  632.  The  indictment.  It  is  a  safe  rule,  in  most  cases, 
to  follow  tlie  statutes  in  the  matter  of  drawing  indict- 
ments, but  this  is  not   nHpiii-ed  as  an  alisolute  rule  of 

9_Bower8  v.  State,  24  Tex.  A]>\).  4  Ark.  50;   Statr  v.   ll.iir,  ?,7  Miini. 

542;    id.  5   Am.  St.   I?cp.  901;   Pen-  .351. 

pie  V.  WriRlit,  3  Cal.  5G4;   Staff  v.  10— 'I'lill.v  v.  Pcoi)l(',  07  N.  V.  ir>; 

Skidmoro,  87  N.  C.  509;   Molette  v.  State  v.  Cody,  18  Or.  50G. 
State,   49   Ala.   18;    Baker  v.   State, 


Mayhem  591 

pleading,  for  any  other  way  of  stating  the  constituents 
of  a  crime,  if  it  is  clearly  and  definitely  stated  and  free 
from  ambiguity  is  enough.  The  statement  of  the  facts 
constituting  the  crime  must  be  clearly  brought  within 
the  meaning  of  the  terms  of  the  statute,  for  if  not,  there 
will  arise  the  question  of  variance;  as  where  an  indict- 
ment charging  the  biting  to  have  been  done  with  the  in- 
tent to  maim,  it  is  not  supported  by  evidence  of  biting 
with  intent  to  disfigure. ^^  This  same  authority  holds 
that,  where  the  indictment  fails  properly  to  charge  the 
mayhem,  that  a  conviction  for  an  assault  and  battery 
either  of  the  simple  or  the  aggravated  kind  may  be  had. 
The  indictment  must  allege  the  intent  with  which  the 
act  was  committed,  and  under  most  statutes,  it  is  not 
necessary  to  allege  that  the  act  was  premeditated  and 
deliberately  designed,  but  that  it  was  willfully  and  ma- 
liciously done.  It  is  not  necessary  to  employ  the  word 
"feloniously"  done.  Where  the  statute  is  in  the  dis- 
junctive, the  indictment  must  be  in  the  conjunctive.  This 
is  a  common  and  universal  rule  of  pleading  in  a  crim- 
inal cause. ^^ 

11— state  V.  Johnson,  58  Ohio  St.       45;    State    v.    Vowels,    4    Or.    325; 
417,   65  Am.   St.  Eep.   770.  Tully  v.  People,  67  N.  Y.  15. 

12— Davis  V.  State,  22  Tex.  App. 


CHAPTER  XXXVI 

MISPRISIONS 
§  633.  At   common   law.  §  634.  What   constitutes. 

§  633.  At  common  law.  Misprisions  are  common  law 
offenses.  There  are  misprisions  of  treasons  and  felonies. 
Owing  to  the  provisions  of  the  constitution  and  the  stat- 
utes we  have  no  misprisions  of  treason  in  the  United 
States,  except  such  as  is  provided  by  the  Statutes  of  the 
United  States.  In  the  absence  of  statute  or  constitutions 
in  the  several  states  the  common  law  may  be  resorted  to 
for  indictment.  Misprision  is  where  any  person  having 
knowledge  that  a  felony  or  a  treason  has  been  committed 
refuses  or  neglects  to  inform  the  government,  through  its 
officers,  that  such  crime  has  been  committed.  The  books 
hokl,  that  merely  having  knowledge  of  the  commission 
of  any  of  tliese  offenses  puts  upon  one  the  duty  of  dis- 
ch)siiig  it.  This  doctrine  of  the  common  law  is  sound 
and  just  for  many  reasons.  And  especially  is  it  true  as 
lo  ilie  crime  of  treason,  for  the  diiiy  to  ])reserve  tlie  gov- 
ernment is  the  paramount  duty  of  every  citizen  in  re- 
turn for  the  protection  of  life,  the  preservation  of  prop- 
erty and  the  personal  security  which  it  guarantees  to 
hliii.  'i'lie  same  duly,  l»ut  in  a  less  pressing  degree,  rests 
ui)oii  him  in  tlie  case  ol"  IVloiiy.  But  wlu^re  he  lias  only 
a  passing  knowledge  of  llic  commission  of  a  felony,  there 
seems,  fi'oin  11h'  weiglil  of  reason  ;iii(l  I  lie  nutlioi'ities 
themselves,  that  no  jjositlNc  duty  exists  to  seek  out  tiie 
ollicers  and  inform  tiicni  of  tiic  crime,  but  a  refusal  to 
disclose  such  kiH)\vl(Mlg(',  wiicii  called  upon  to  do  so, 
wonid  be  an  in<lic1;iMc  ofrciisc,^  for  this  wonhl  ph-icc  liini 
in  the  .'ittiliidc  of  ;in  ncces.soiy  .'iflci'  the  fact. 

1  —  1    lilackslotir    llil. 

592 


Misprisions  593 

§  634.  What  constitutes.  Misprisions  appear  to  denote, 
generally,  any  concealment  of  a  crime,  and  it  may  apply 
to  any  considerable  misdemeanor,  which  has  no  specific 
name  given  to  it,^  by  law.  The  offense  of  misprision  is  a 
misdemeanor.  By  the  laws  of  England,  misprision  of 
treason  was  punished  as  treason,  principally,  we  suppose, 
because  treason  has  no  accessories,  either  before  or  after 
the  fact,  all  being  principals  who  had  anything  to  do 
with  it.  In  this  crime  the  doctrine  of  intent  does  not  ap- 
pear to  accord  with  the  general  doctrine,  in  this  that,  the 
mere  failure  to  give  information,  becomes  criminal  with- 
out the  least  action  in  the  commission  of  the  substantive 
offense.  A  person  who  may  happen  to  know  of  the  com- 
mission of  the  crime,  and  who  could  not  have  avoided 
the  knowledge,  is  held  responsible  for  the  failure  to  dis- 
close it.^  From  the  nature  of  the  offense,  no  conviction 
could  be  had  until  the  substantive  offense  is  proven.  This 
crime  is  in  the  nature  of  an  accessory  after  the  fact.  Al- 
most all  the  states  in  the  United  States  have  statutes  cov- 
ering and  defining  as  a  substantive  offense  the  act  of 
aiding  and  abetting  the  escape  of  one  charged  with  crime. 
This  offense  has  almost  become  obsolete,  the  statutes  of 
the  several  states  having  taken  the  place  of  the  common 
law  misprision.  Yet  in  the  absence  of  a  statute  the  com- 
mon law  may  be  resorted  to  and  enforced. 

2—3  Coke  Inst.  36;   4  Blackstone       Melton  v.  State,  43  Ark.  367;  State 
119.  V.   Davis,   14  E.   I.   281. 

3 — Cooper  v.  Johnson,  81  Mo.  483; 


C.  K— 38 


CHAPTER  XXXVII 

MONOPOLIES 

Forestalling,  Eegrating  and  Enqeossing 

§  635.  Old  statutes  of  England  may 
be  common  law  here. 

§635.  Old  statutes  of  England  may  be  common  law 
here.  Some  old  statutes  of  England  prohibited  monop- 
oly in  any  trade  or  business.  Those  statutes,  however, 
appear  to  be  common  law  with  us.  In  another  connec- 
tion we  have  seen  that  any  combination  to  raise  the  price 
of  products,  or  to  restrict  trade,  or  to  cripple  the  free 
conduct  of  business,  is  at  the  common  law  a  criminal  con- 
spiracy. So  the  common  law  offenses  of  forestalling,  re- 
grating  and  engrossing  might  be  indictable  when  ac- 
complished through  a  conspiracy.  There  appears  to 
be  no  reason  why  we  should  not  indict  under  the 
common  law  principles  any  attempt  to  forestall  a 
market  whereby  it  is  intended  to  raise  the  price  of  any 
commodity  where  such  forestalling  or  engrossing  would 
have  the  effect  to  cheat  or  coerce  persons  to  purchase  at 
the  price  set  by  such  forestaller  or  engrosser,  by  monop- 
olizing the  market,  or  acquiring  all  or  such  a  quantity 
of  the  thing  desired  as  to  take  from  the  purchaser  the 
right  to  purchase  from  whom  and  where  he  desired. 
Where  tlie  circumstances  are  such  as  to  put  it  in  the 
power  of  a  person,  or  a  combination  of  persons,  to  compel 
and  coerce  the  community,  or  any  great  number  of  per- 
sons, to  buy  any  article  at  more  than  a  fair  price,  by  buy- 
ing all  of  such  commodity  with  the  intent  to  hoard  or 
witliliohl  it  from  tlie  market,  until  such  time  as  an  ;i<l- 
vanoe  in  tiio  [jricc  could  bo  obtained,  is  an  olTcnsc  and 
could  1m'  indidcd  al  coininoii  law.     Modern  corporal  ions, 

594 


Monopolies  595 

syndicates,  trusts  and  monopolies,  as  operated,  are  very- 
much  similar  in  their  elTects,  as  the  acts  which  were 
intended  to  be  regulated  by  the  common  law  indict- 
ments under  the  offenses  of  forestalling,  regrating  and 
monopolies.  The  main  difference  appears  to  be  in  the 
scope  and  the  harmful  results,  rather  than  in  prin- 
ciple. These  modem  combinations  of  trade  are  more 
oppressive  and  hurtful  to  the  community,  for  the  reason 
that  a  greater  number  of  persons  are  effected  by  it.  An 
application  of  the  common  law  to  the  conditions  of  our 
country  by  a  sound  and  broad  minded  judiciary  could, 
in  our  opinion,  meet  all  the  violations  of  the  restraints 
of  trade  and  suppress  monopolies.^ 

1 — 5   and   6   Edward   VI   and   all       the  Common  Law  crimes  appears  to 
other  statutes  of  England   affecting       have  been  repealed,  7  and  8  Vict. 


CHAPTER  XXXVIII 

NUISANCES 

§  636.  Subdivisions.  §  645.  Exposure  in  private  place. 
§  637.  Bawdy  and  disorderly  houses       §  646.  Statutes. 

defined.  §  647.  Gaming  and  gaming  houses. 

§  638.  Gossip,    scandal,   etc.  §  648.  Obstruction  of  highways,  ne- 
§  639.  Married   women.  cessity  justifies. 

§  640.  Common  scolds.  §  649.  Custom    will    not    justify. 

§  641.  Offensive    trades.  §  650.  Public  shows. 

§  642.  Public  health.  §  651.  Drunkenness,    punished    as    a 
§  643.  Eavesdropping.  nuisance. 

§  644.  Exposing  the  person. 

§636.  Subdivisions.  Under  the  general  terai  ''Nui- 
sances" many  ofl'enses  are  indictable,  such  as  "Bawdj^ 
Houses, "  " Common  Scolds, "  " Disorderly  Houses, '"' Of- 
fensive Trades,"  ''Eavesdropping,"  "Exposing  the  Per- 
son in  an  Indecent  l\[anner,"  "Gaming  Houses,"  and 
"Public  Shows"  and  the  like.  All  of  these  are  common 
law  offenses  and  indictable  in  the  absence  of  statutory 
provisions  regulating  them.  We  shall  in  the  following 
pages  briefly  discuss  each  of  these  in  subheads  as  follows, 
viz.:  (1)  Bawdy  and  Disorderly  Houses;  (2)  Common 
Scolds;  (3)  Offensive  Trades;  (4)  Eavesdropping;  (5) 
p].\p{)sing  the  Person  in  an  Indecent  Manner;  (6)  Gam- 
ing Houses;  (7)  Pul)lic  Shows;  (8)  Obstructing  Public 
Highways;  (9)  Drunkenness. 

BAWDY  AND  DISORDERLY  HOUSES 

§637.  Defined.  A  disorck'ily  liouse  is  defined  to  bo  one 
kept  ill  sucli  a  way  as  to  disturb  or  scandalize  the  public 
generally,  or  the  inhabitants  of  a  particular  neighbor- 
liood,  or  the  passersby.^  There  is  very  little  difference  be- 

1— state;  V.   .M;.rtii.,  77  N.  .1.   I>:iw  N.  .1.    Law   7.  M   All.    ifc]..  (iC).     Si>.- 

(\r)2,  73   Atl.   Rep.  .148,  24   L.   U.  A.  Vol.   .I,   Amcr.   and   Eng.   Encly.   L., 

rN.   S.)    r,()7,   134   A.   S.   R.   814,   18  page     603;     and     authorities     Ihoro 

AniH.tiitr.l  Code-;   Moore  v.  Berk,  71  cif.-.l.     Sl:iti'  v.  Wilson,  it.t  N.  ('.  (iOH. 

r)9(; 


Nuisances  597 

tweeii  a  disorderly  house  and  a  bawdy  house.  So,  for 
this  reason  we  have  grouped  them  together.  A  disorderly 
house  may  be  any  house  where  the  inmates  behave  so 
badly  as  to  become  obnoxious  and  offensive  to  the  neigh- 
borhood, or  to  the  public  generally,  and  this  includes  in 
its  scope  a  bawdy  house  and  houses  where  gaming  is  car- 
ried on.  Thus  it  is  said  a  disorderly  house,  in  its  more 
restricted  sense,  is  a  house  where  persons  abide  and  to 
which  they  resort,  and  the  manner  in  which  they  conduct 
themselves,  disturbs  the  quiet  of  the  neighborhood;  in 
its  more  enlarged  sense,  includes  bawdy  houses,  gaming 
houses  and  places  of  like  character  to  which  people  resort 
promiscuously  for  purposes  injurious  to  the  public  morals 
or  the  public  health,  convenience  or  safety.  Nor  is  it 
essential  that  there  be  any  disorder  or  disturbance,  in 
the  sense  that  it  disturbs  the  public  peace  or  the  quiet  of 
the  neighborhood.  It  is  enough  that  the  acts  there  done 
are  contrary  to  sound  morality.^ 

§  638.  Gossip,  scandal,  etc.  From  the  observations  of 
the  preceding  section,  the  rule  may  be  gathered  that  if 
the  inmates,  or  inhabitants,  are  engaged  in  doing  those 
things  which  are  calculated  to  subvert  the  morals  of  the 
community,  or  which,  or  the  tendency  of  which,  is  disturb- 
ing to  the  quiet  and  repose  of  the  community,  by  creating 
gossip  and  scandal,  the  offense  is  committed,  whether  the 
inmates  are  guilty  of  disorderly  and  noisy  conduct  or  not. 
Hence  a  bawdy  house  is  a  disorderly  house  whether  the 
acts  of  the  inmates  are  disorderly  or  not.  If  the  acts 
are  contrary  to  and  inimical  to  good  morals,  or  are  im- 
moral in  fact,  although  acts  are  quietly  and  peaceably 
done,  the  offense  has  been  committed  nevertheless.  A 
woman  who  lives  by  herself  and  is  accustomed  to  receive 
men,  for  illicit  intercourse,  is  not,  merely  because  she  is 
unchaste,  guilty  of  keeping  a  bawdy  house.    Nor  does 

2— Vol.      5,      Amer.      and      Eng.       89;    Clark    v.    Com.,    79    Ky.    359; 
Enely.   L.,  page   693;    Wait  v.   Peo-       Fletcher   v.   State,   48    Ark.   60. 
pie,  40   Colo.  136,   104  Pacific  Eep. 


598  Criminal  Law 

a  single  act  of  intercourse,  nor  the  habitual  intercourse 
of  the  same  persons,  constitute  the  crime  of  keeping  a 
bawdy  house.® 

§  639.  Married  women.  Ordinarily,  as  we  have  in  an- 
other connection  shown,  a  married  woman  could  not  be 
guilty  of  committing  a  crime  in  the  presence  of  her  hus- 
band, or  where  her  husband  was  so  near  to  her  as  to  raise 
the  presumption  that  he  exercised  an  influence  over  her, 
yet  in  the  offense  before  us,  because  of  its  nature,  which 
in  many  instances  can  be  committed  by  females  only,  or 
largely  so  by  them,  the  wife  has  been  held  responsible 
criminally  for  keeping  a  bawdy  house,  notwithstanding 
her  husband  lived  with  her.*  Any  person  who  establishes 
or  maintains  a  house  of  ill-fame  is  responsible.  So 
if  one  knowingly  penults  his  house  to  be  used  by  prosti- 
tutes for  the  purpose  of  plying  their  vocations,  will  be 
guilty  of  keeping  a  bawdy  house.* 

§  640.  Common  scolds.  This  offense  consists,  in  the 
loud,  bickering,  scolding,  obscene,  indecent  and  scof- 
fing language  of  a  woman,  under  such  circumstances  as 
to  become  offensive,  and  disturbing  to  the  public,  and  as 
such  is  a  common  nuisance.  In  some  of  the  states  where 
the  common  law  is  in  force  it  is  indictable  as  a  com- 
mon luiisance.^  But  in  the  American  states  it  may  be 
said  that  the  offense  lias  become  obsolete,  the  same 
having  been  superseded  by  other  statutory  crimes.  Tliis 
offense  was  regarded  l)y  our  T^ni'ilan  fathers  as  very 
grave  in   oui'  own   coiiiilrw  and   i<    was  for  a  long  time 

3—5    Ainer.    &    Eng.    Encly.    L.,  .1— King  v.  IVoplc,  S:?  N.  Y.  587; 

page   G9.j;    State  v.   Evans   Ired   N.  Scarhiougli    v.    State,    46    Ga.    2G; 

C,  page  G03;   Caldwell  v.  State,   17  Drake  v.  State,  14  Nob.  535,  17  N. 

Conn.    467;    Com.    v.    Loiirhcrt,    112  SV.   117. 

Allen   (MasH.)    177.  6— .Tames  v.  Com.,  12  S.  &  R.  236; 

4— Com.     V.     (nicncy,     114     Mass.  Com.    v.    Molin,   52    Pa.    St.    243,  91 

281;    Com.    v.     Hopkins,    43     Aiiicr.  Anii'rican   Decisions  153.     Tlio  court 

Kep.    527,    13.''.    Mass.    3«;    ("oni.    v.  in     tliis    case    did     nut     piinisli     llic 

Oaks,   113   Mass.   8.  Dncking    Stool. 


Nuisances  599 

after  the  landing-  of  the  Pilgrim  Fathers  before  the  same 
was  discontinued.  It  was  regarded  as  so  reprehensible, 
that  the  ordinary  punishment,  fine  and  imprisonment, 
was  denied  the  victim,  and  a  rude  and  barbarous  con- 
trivance known  as  the  ducking  stool  was  devised  by  some 
lover  of  human  rights,  whereby  she  was  strapped  and 
pinioned  and  ducked  in  a  pond. 

§  641.  Offensive  trades.  Offensives  trades  or  occupa- 
tions, where  the  effect  is  to  disturb  the  public  comfort, 
or  to  impai'r  or  injure  the  health  of  the  community,  are 
indictable  offenses.''^  Examples  appear  in  tlie  business 
of  operating  slaughter  pens  and  houses,  soap  factories 
and  the  like,  which  emit  offensive  odors,  to  such  an  ex- 
tent as  to  have  the  effect  of  producing  unhealthfulness 
and  discomfort  in  the  community.  The  keeping  and  the 
maintaining  a  powder  house,  so  close  to  the  habitation 
of  another,  or  in  the  vicinity  where  other  persons  are 
at  work,  or  where  they  may  lawfully  go  for  the  purpose 
of  recreation  or  business,  is  indictable,  because  the  same 
becomes  a  menace  to  the  safety  of  such  persons. 

§  642.  Public  health.  Indictments  will  lie  at  common 
law  for  the  sale  of  unwholesome  foods,  such  as  tainted 
meats,  adulterated  wines,  milk,  etc.  As  early  as  the 
51  Hen.  Ill,  6,  the  sale  of  unwholesome  meats,  or  cor- 
rupted wines,  and  flesh  bought  from  a  Jew  was  pro- 
hibited. The  law  is  not  confined  to  unwholesome  meats 
and  the  like,  but  may  extend  to  any  and  all  acts  that 
may  tend  to  or  does  in  fact  endanger  the  health  of  the 
public.  It  is  clearly  a  criminal  offense  to  place  a  person 
afflicted  with  a  contagious  disease  in  a  public  street,  or 
other  public  place,  where  the  disease  might  be  communi- 
cated to  other  persons.    To  corrupt  a  fountain  or  a  well 

7— Com.  V.  Upton,  6  Gray  473; 
Stetson  V.  Faxon,  31  Am.  Dec.  133, 
and  note. 


600  Criminal  Law 

of  water;  to  expose  unwholesome  and  noxious  poisons 
and  gasses  in  such  a  manner  as  to  become  offensive  and 
promotive  of  the  ill  health  of  the  community,  are  indict- 
able. Also,  noxious  trade  or  business  conducted  in  such 
a  w-ay  as  to  affect  the  public  health  to  its  hurt,  by  be- 
coming offensive  to  the  sight,  hearing  or  smell,  are  com- 
mon nuisances  and  were  at  the  common  law  indictable.^ 

EAVESDROPPING 

§643.  Defined.  The  common  law  for  the  purpose  of 
maintaining  inviolate  those  things  relating  to  the  do- 
mestic life  free  from  the  intrusion  of  strangers,  punished 
by  fine  and  imprisonment,  any  person  guilty  of  stealthy 
listening  to  the  conversation  taking  place  in  another's 
house.®  This  offense  is  known  as  ''eavesdropping,"  and 
is  said  to  consist,  particularly,  in  listening  at  a  man's 
window,  or  wall,  or  other  part  of  his  house,  in  order  to 
hear  what  is  going  on  in  the  inside,  and  make  it  the  gos- 
sip of  the  neighborliood.^"  The  cases  are  very  rare*  and 
it  is  doubted  that  a  single  case  in  recent  years  could  be 
found.  In  one  case  it  was  held  that  where  one  was  em- 
ployed by  the  husband  to  listen  to  the  conversation  of 
the  wife  witli  another,  on  the  inside  of  the  house,  while 
he  was  stationed  at  her  window  on  the  outside,  did  not 
constitute  the  offense.  This  was  so  decided  upon  the 
theory,  that  a  man  has  the  right  to  ascertain  the  conduct 
and  conversation  of  his  wife,  by  a  resort  to  such  means 
if  lie  so  desired."  Looking  in  the  house  would  not  con- 
stitute ihe  offense,  but  listening  in  a  stealthy  manner 
\v(inl(l,  foi-  the  gist  of  the  criinc  is  the  stcnlihy  listiMiing.*'' 

EXPOSING  THE  PERSON 

§  644.  Defined.    This  offense  consists  in  the  exposure  of 
the  naked  peison,  or  a  part  of  it,  in  a  public  place  in  a 

8 — i    Bliickstono    ir.2,    2    Enst    P.  Ins.   Co..    l'JL>   (i:i.    1!>(».  r.l)   S.    H.  68, 

C.   822,  0  East,   1.33;    3    Gn-rf.    181;  (i!)   L.   I{.  A.    KH.   Kh)   A.  S.   K.   1042. 

Com.  V.  Tipton,  G  Gray  47.3.  11— ('(.tn.  v.  hov.tt,   I  <'l.irk  cn. 

9_4    pljifkHtonc    168.  12— Com.    v.    MniiKc),    1    Cl.nk    (i. 

10 — Pavcsicli   V.   New   Engl;inii    L. 


Nuisances  601 

manner  and  under  circumstances  reasonably  calculated  to 
shock  the  feelings  of  refinement  and  chastity,  or  which 
is  calculated  to  corrupt  the  moral  sensibilities  of  those 
witnessing  it.  The  exposure  must  be  intentional,  and  it 
may  be  shown  by  a  negligent  or  willful  act.  If  a  person 
by  accident  expose  his  naked  body  it  can  be  no  offense, 
however  shocking  to  the  sensibilities  it  may  be  to  those 
who  witness  it.  Public  shows,  theaters,  and  like  exhibi- 
tions, which  for  the  occasion  permit  the  unnecessary  ex- 
posure of  the  naked  body,  is  an  indictable  offense.^' 

§  645.  Exposure  in  private  place.  At  the  common  law 
there  is  no  offense  where  the  exposure  occurred  in  a  pri- 
vate place.  The  exposure  must  be  in  a  public  place,  and 
must  have  been  seen  by  other  persons.  There  appears 
to  be  a  conflict  in  the  authorities,  whether  the  offense 
could  be  committed  if  seen  only  by  one  person.  In  a 
comparatively  recent  case  the  court  held,  that  at  the 
common  law,  the  offense  could  not  be  committed  unless 
the  exposure  could  have  been  seen.^*  It  also  further 
declared,  that  the  offense  at  the  common  law  was  punish- 
able because  it  was  a  public  nuisance,  and  hence  the 
nuisance  could  not  be  committed  unless  seen  by  someone. 
It  was  declared  in  the  same  case,  that  the  indecent  ex- 
posure in  a  private  house  to  one  person  only,  being  a 
female,  was  sufficient  to  constitute  the  crime.  Substan- 
tiallj^,  the  same  is  held  in  another  case,  where  a  man 
made  an  indecent  exposure  of  his  person  to  a  woman, 
and  at  the  time  solicited  carnal  intercourse,  she  opposing 
and  objecting.^^ 

§  646.  Statutes.  What  conditions  and  circumstances 
will  constitute  this  offense  within  the  meaning  of  the 

13— Knowlcs  V.  State,  3  Day  103-  15— State  v.  Millard,  18  Vt.  574, 

108.  46   Am.  Dec.  170. 

14— Com.    V.   Warden,    128    Mass. 
52,   35   Am.   Eep.   357. 


602  Criminal  Law 

law  depends  upon  the  facts  of  the  particular  case.  The 
statutes  of  the  several  jurisdictions  sufficiently  describe 
the  kind  of  place  in  which  it  would  become  an  offense  to 
expose  one's  person.  Ordinarily,  all  stores,  shops,  offices, 
streets,  alleys  and  highways,  all  theaters,  shows  and  ex- 
hibitions of  all  kinds,  and  any  other  place  where  people 
resort  for  business  or  pleasure.  The  common  law  nui- 
sance has  been  almost  superseded  by  the  statutes.  The 
law  governing  the  same  is  to  a  great  extent  controlled 
by  the  local  statute. 

§647.  Gaming  and  gaming  houses.  The  keeping  a 
house  where  persons  connnonly  resort  for  the  pui*poses 
of  gaming,  was  at  the  common  law  a  nuisance,  and  pun- 
ishable as  a  misdemeanor  by  fine  and  imprisonment. 
Upon  the  principles  announced  in  the  discussion  of  the 
offense  of  "disorderly  houses,"  the  keeping  and  main- 
taining a  gaming  house  would  be  a  disorderly  house. 
Permitting  single  acts  of  gaming  in  one's  house  does 
not  make  the  offense.  So,  the  keeping  and  maintaining 
an  inn  or  a  tavern,  or  a  tippling  shop,  or  the  like  place, 
where  disorderly  and  noisy,  indecent,  oi-  disturbing  eon- 
duct  is  carried  on  will  constitute  the  same  a  disorderly 
house,  and  a  common  nuisance. ^^ 

OBSTRUCTiONR   TO   HIGHWAYS 

§648.  Necessity  may  justify.  The  obstruction  of  tiic 
coinmon  Iiigliways,  where  by  the  free  use  of  same  for 
the  iiuipitscs  of  travel  is  by  any  means  impeded  or  im- 
jtaircd,  is  at  llic  common  law  a  pubFur  nuisance,  and 
iiidiclabh'  as  sncli.  Xol  cxciy  obstruction  of  street  or 
higliway  will  consiilulc  llic  crimen  although  it  might 
tend  to  inconvenience  the  traveling  public  Wliei-e  one 
lives  in  a  city,  those  artieU'S  from  necessity  reciuiivd  to 
he    placed    upon    tin'    pulilic    streets,    in    oi'(h'i'    that-    they 

Ifi-  ClMik  V.  Couu,  7a  Ky.  ^nn ;  .S|;itc,  S  Ul.ickl.  (hid.)  12(1.1;  IIuIht 
1     Ilruvk     V.    C.    093;     nionliiifl'     v.        v.   Stnfc,   '2r,    liwl.    175. 


Nuisances  603 

may  be  removed  by  the  owner  to  such  places  as  he  wants 
to  keep  them,  such  use  of  the  streets  will  not  make  the 
offense.  Thus,  in  one  case  the  court  says:  ''That  it  is 
true,  that  necessity  justifies  actions,  which  would  other- 
wise be  a  nuisance."  It  is  also  true,  that  this  necessity 
need  not  be  absolute;  it  is  enough  if  it  be  reasonable. 
No  one  has  the  right  to  throw  wood  or  stone  in  the  streets 
which  has  the  effect  of  obstructing  the  travel  in  the 
same.  Public  necessity  sometimes  justifies  this  action, 
as  the  case  of  building  liouses,  the  material  may  be  placed 
in  the  street  provided  it  be  done  so  as  to  cause  the  least 
inconvenience.  Merchants  and  others  engaged  in  vend- 
ing merchandise  have  no  right  to  obstruct  the  public 
streets  and  sidewalks  for  the  purpose  of  showing  their 
wares." 

§  649.  Custom  will  not  justify.  A  public  nuisance  can- 
not be  legalized  by  custom  or  by  the  permissive  use  for 
a  long  time  of  the  streets  or  highways  for  any  purpose 
not  for  travel  and  convenience  of  the  public.  Thus,  where 
a  constable  had  gathered  the  goods  of  several  execu- 
tion debtors,  and  placed  them  on  the  sidewalk,  as  had 
been  the  custom  of  the  officers  for  many  years  prior 
thereto,  the  court  held,  that  it  was  an  obstruction  to  the 
free  passage  of  travelers,  and  therefore  criminal.^* 

§  650.  Public  shows.  The  exhibition  of  the  nude  body 
in  shows  and  theaters  and  entertainment  of  like  char- 
acter, is  an  indictable  offense  as  a  common  nuisance, 
where  the  exposing  of  the  nude  person  was  obnoxious  to 
decency  and  shocking  to  the  moral  sensibilities.  Any 
public  show  or  exhibition  tending  to  corrupt  the  good 

17 — Com.  V.  Passamore,  1  S.  &  R.  19 — People    v.    Cunningham.     43 

219;  People  v.  Cunningham,  43  Am.        Am.  Dec.  717. 
Dec.  709  (N.  Y.),  1  Denio  524;  Peo- 
ple V.  Harton,  64  N.  Y.  620;   Judd 
V.  Fargo,  107  Mass.  267. 


604  Criminal  Law 

morals  of  the  community,  or  to  shock  the  sense  of  re- 
tinement  of  those  persons  witnessing,  is  a  common  nui- 
sance at  common  haw.  It  seems  that  the  offense  is  made 
if  the  thing  itself  is  indecent  or  immoral  or  will  have 
the  effect  of  producing  immorality  or  a  tendency  thereto. 
Thus,  if  the  thing  exhibited  is  indecent  or  vulgar,  as  the 
exhibition  of  a  picture  of  a  naked  man  full  of  eruptive 
sores.^® 

DRUNKENNESS 

§  651.  This  offense  is  punished  as  a  nuisance.  Drunk- 
enness is  an  indictable  offense  at  the  common  law.  A 
limitation,  however,  was  placed  upon  the  drunkenness 
when  committed  in  private — that  is,  private  drunken- 
ness was  no  crime.  The  common  law  permitted  the  in- 
dividual to  drink  all  the  liquor  he  wanted,  this  being  a 
question  of  his  own.  The  criminal  law  does  not  under- 
take to  notice  the  degree  of  moral  tui'pitude  in  the  prac- 
tice of  drunkenness,  aside  from  the  bad  effects  it  is  cal- 
culated to  have  upon  public  morals,  and  the  tendency 
toward  the  disturbance  of  the  peace.  Drunkenness  in 
a  public  place  is  a  crime  because  the  conduct  of  a  drunken 
man  in  a  public  place  is  disturbing  to  the  quiet  and  the 
good  order  of  the  community,  provocative  of  breaches 
of  the  peace,  corruptive  of  the  morals,  and  calculated 
to  produce  terror  and  alarm  in  tlic  inhabitants.  Tiie 
coniiiioii  h'lw  ])unished  it  more  as  a  conmion  nuisance 
tliaii  a  spccilic  offense.^*  We  have  seen  that  where  a 
man's  conduct  is  such  as  to  become  oppressive,  obnox- 
ious, distui])iiig,  ci-caliiig  or  calculated  to  disturb,  ter- 
rorize or  alai-iii  oliicrs  in  a  piil)lic  phicc,  is  a  })iil)lic  nui- 
sance. So,  also,  any  act  that  has  a  tendency  to  corrupt 
the  morals  of  the  conmninity  is  a  pul)lic  nuisance,  and 

20— People    V.    Miillcr,    itC)    N.    V.  21—3  Orool.   184;  Smitli  v.  State, 

408,    48    Am.    Hop.    635;    People    v.  1     nimipli.    .'{96;    Com.    v.    Boom-,    2 

Eastman,    188   N.   Y.   478,   8   N.    JO.  Gntv    7);    State    v.   Waller,   3    Mur. 

4.'J0,  11   Ann.  Can.  302,  and  note.  220. 


Nuisances  605 

as  such  is  punishable  as  crime.  Drunkenness  notoriously 
indulged  in  is  a  crime,  and  in  the  absence  of  a  statute 
punishing  the  acts  of  drunkenness,  may  be  prosecuted 
as  a  public  nuisance.  Cursing,  swearing,  loud  and  boister- 
ous and  indecent  language  blasphemously  engaged  in 
a  public  place  is  also  indictable  as  a  nuisance.^^ 

22— state  v,  Powell,  70  N.  C.  68.  v.  Graham,  3  Sneed.  (Tenn.)  134; 
See  following  cases:  State  v.  Brown,  State  v.  Locker,  50  N.  J.  L.  512, 
38    Kan.    390,    16    Pac.    259;    State       14   Ayl.   749. 


CHAPTER  XXXIX 


PERJURY 


§  652.  Defined.  §  661. 

§  653.  Was      anciently      a      misde- 
meanor. 

§  654.  An  oath  must  have  been  ad-       §  662. 
ministered     in     accordance 
with    the   established    form       §  663. 
or  substance  of  the  law. 

§  655.  Corporeal  oaths  distinguished 

from  others.  §  664. 

§  656.  Oath    must    be    properly    ad- 
ministered. §  665. 

§  657.  Must  be  administered  in  con- 
formity to  the  law.  §  666. 

§  658.  No    difference    whether    wit- 
ness voluntarily  or  involuu-       §  667. 
tarily  appear  and  testify. 

§  659.  Administering    oath,    statute       §  668. 
must  be  followed. 

§  660.  Oath  must  be  administered  by       §  669, 
one  authorized  to  do  so. 


Who  was  empowered  at  com- 
mon law  to  administer 
oaths. 

Oath  must  be  administered 
in  the  officer's  jurisdiction. 

Court  must  have  jurisdiction 
of  the  person,  subject  mat- 
ter. 

Must  be  prosecuted  in  the 
Federal    Court,    when. 

Testifying  to  fact  believed 
to  be  true,  is  not  perjury. 

Testimony  must  have  been 
wilful  and   corrupt. 

Must  have  been  matter  ma- 
terial to  issue. 

Witness  compelled  to  testify 
against  himself  not  perjury. 

Rule  as   to   corroboration. 


§652.  Perjury  defined.  Perjury  is  an  offense  which 
specifically  affects  the  administration  of  justice.  Con- 
sists in  the  willful  and  corrupt  false  oath  taken  in  the 
course  of  justice,  touchiiii;-  some  material  point  at  issue. 
Defined  by  Mr.  Bishop:  "Perjury  is  the  willful  giving 
under  oatli  in  a  judicial  proceeding  or  course  of  justice 
of  false  testimony  material  to  the  issue  or  point  of  in- 


quiry. 


M   1 


§  653.  Was  anciently  a  misdemeanor.    At  common  law 
lliis  orfciisc  was  a  misdenicaiior,  but  at  one  time  by  some 

1— other    definitions;      1    Hawks.        164,   4    Bin.    137,   3    Green   Ev.    188, 
P.   C,   p.    429;    Lord    Coke,   3    Inst.       2   Husa.  on  Cr.  596. 

606 


Perjury  607 

of  the  earlier  statutes  was  punished  with  death.  In  the 
American  states  it  is  punished  universally  as  a  felony 
by  statute.  In  general,  at  the  common  law,  perjury  was 
confined  to  the  willful  and  corrupt  testimony  given  in 
any  judicial  proceeding,  or  in  the  course  of  administra- 
tion of  justice,  and  was  limited  to  such  acts  as  was  re- 
quired to  be  made  in  connection  with  a  cause  then  pend- 
ing, or  of  one  that  would  in  all  probability  be  pending 
at  some  future  time.  The  statutes  have  in  many  instances 
extended  the  crime  to  all  false  oaths.  The  crime  may  be 
said  to  contain  the  following  elements:  1.  An  oath  must 
have  been  administered  in  accordance  with  established 
form  or  substance  of  the  laAv.  2.  It  must  have  been  ad- 
ministered by  one  authorized  by  law  to  do  so.  3.  That 
the  testimony  must  be  false.  4.  That  the  testimony  must 
have  been  given  willfully  and  corruptly.  5.  That  the 
testimony  must  have  been  of  some  matter,  material  to 
the  issue  or  point  in  controversy.  6.  That  the  testimony 
or  false  oath  must  have  been  relating  to  some  matter 
pending  in  the  course  of  justice,  or  in  some  proceeding 
that  was  likely  to  come  up  in  the  course  of  justice.^ 

§  654.  An  oath  must  have  been  administered  in  ac- 
cordance with  the  established  form  or  substance  of  the 
law.  An  oath  is  a  solemn  appeal  to  God,  made  in  the 
presence  of  one  authorized  by  law  to  administer  it,  to 
witness  the  truthfulness  of  testimony  about  to  be  given 
touching  any  matter  of  fact  to  be  inquired  about  in  any 
judicial  proceeding  or  course  of  justice.  Lord  Coke  in 
institutes:  ''An  oath  is  an  affiiTQation  or  denial  by  any 
Christian  of  anything  lawful  and  honest,  before  one  or 
more  that  have  authority  to  give  the  same,  for  the  ad- 

2— O'Eeeley  v.  People,  86  N.  Y.  S.  K.  684;    People  v.    Teal,   196  N. 

154,  40  Am.  Kep.  525.     See  follow-  Y.  372,  80  K  E.  10S6,  17  Am.  Cas. 

ing  cases  bearing  upon  the  question  1175,  25  L.  R.  A.  (N.  S.)  120;  State 

perjury  and  which  in  the  main  con-  v.  Dayton,  23  N.  J.  L.  40,  53   Am. 

firms     the     text.        McDonaugh     v.  Dec.    270;     State    v.    Shupe,    16    la. 

State   (Tex.),  84  S.  W.  594,  122  A.  36,   85   Am.   Dec.   485. 


608  Cbiminal  Law 

vancement  of  truth  and  right,  calling  Almighty  God  to 
witness  that  his  testimony  is  time."  Anciently  there 
was  no  fomi  of  a  legalized  oath,  except  under  the  sanc- 
tion of  the  Christian  religion,  calling  upon  God  to  wit- 
ness the  truthfulness  of  the  testimony.  By  modem  in- 
dulgence, those  holding  religion  differing  from  common- 
ly recognized  Christianity,  are  permitted  to  affirm  as  to 
tiie  truthfulness  of  their  testimony.  An  affinnation  is 
the  same  as  an  oath,  except  that  the  appeal  is  not  made 
to  God  or  the  Supreme  Being  to  witness  the  truthful- 
ness of  the  oath.  An  affirmation  is  to  be  administered 
in  a  manner  most  binding  upon  the  conscience.  The 
right  to  affinn  is  a  statutoiy  provision,  amendatoiy  of 
the  common  law  oath,  and  is  designed  to  meet  the  views 
of  all  persons,  who  from  religious  reasons,  prefer  to 
make  an  affirmation.  It  was  originally  designed  to  meet 
the  views  of  those  who  believed  that  it  was  in  violation 
of  scriptural  ordinances  to  swear.  Among  these  w^e  find 
the  Quakers,  ^Moravians,  Separatists  and  others  unneces- 
sary to  mention. 

§  655.  A  corporeal  oath  distin^ished  from  others.    A 

corporeal  oath  is  distinguished  from  other  oaths  in  this, 
that  fonnerly  it  was  required  to  lay  the  finger  or  hand 
upon  the  Holy  Bible,  or  to  kiss  it  in  confinnation  of  the 
truthfulness  and  sacredness  of  the  asseveration.^  This 
was  called  the  corporeal  oath,  from  the  fact  of  bodily  tak- 
ing hold  of  the  Bible.  But  now  the  tenn  *' corporeal 
oath"  and  the  term  "oath"  arc  used  indiscriminately, 

6_The  terms  "Con'orcal  Oaths"  J'oopio,  ;"!(  liarl..  581.  The  term 
anrl  "Solemn  Oath"  arc  used  "Corporeal  Oath"  must  he  consid- 
s.vnonymously,  and  the  oath  that  is  cred  as  applying  to  any  bodily  as- 
taken  with  uplifted  hand  may  he  sent  to  llie  oath  of  the  witness. 
proi)erly  described  l>y  either  term.  State  v.  Norris,  supra,  Hf)  Am.  Dec. 
.Faekson  v.  State,  1  Ind.  184;  State  49(5  and  note  State  v.  Slmi.,-,  ]t\  I:i. 
V.    Norris,    !)    X.    II.    !•*■>;     Burns    v.  126. 


Perjury  f)09 

and  it  is  only  a  matter  of  form  to  require  the  kissing 
of  the  bible.  And,  so  far  as  the  pains  and  penalties  of 
perjury  are  concerned,  the  consequences  are  the  same. 
The  practice  of  kissing  the  Bible  has  fallen  into  disuse, 
except  in  some  of  the  Federal  courts  the  practice  is  still 
followed,  apparently  for  the  purpose  of  giving  a  greater 
solemnity  to  the  proceedings.  It  is  more  in  accordance 
with  American  plans  and  institutions  to  disregard 
this  formula  of  the  common  law.  It  is  familiar  to  those 
who  have  opportunities  of  observation  that  an  affiraia- 
tion  is  as  likely  to  elicit  the  truth  as  the  corporeal  oath. 

§656.  Oath  must  be  properly  administered.  Where 
one  had  prepared  and  signed  an  affidavit  and  presented 
it  to  an  officer  of  the  law  who  was  authorized  to  admin- 
ister oaths,  and  the  officer  affixed  his  jurat  thereto,  but 
did  nothing  else  toward  having  the  same  sworn  to,  the 
court  held,  that  perjury  could  not  be  predicated  upon  it, 
because  the  same  had  not  been  properly  administered. 
And  for  the  further  reason,  that  some  form  of  oath  has 
always  been  required  in  order  that  the  sworn  may  be 
distinguished  from  the  unsworn,  and  the  sanction  of 
religion  add  its  binding  and  solemn  force  to  the  act.' 

§  657.  Must  be  administered  in  conformity  to  the  sub- 
stance of  the  law.  The  binding  effect  of  the  oath  con- 
sists in  its  being  administered  in  conformity  to  the  sub- 
stance of  the  law.  It  is  not  essential  to  the  validity  of 
an  oath,  that  it  was  not  administered  in  conformity  to 
any  special  form.  It  is  not  even  necessary,  where  the 
statute  prescribes  the  form  of  the  oath,  to  follow  the 
exact  Avording,  verbatum,  of  the  oath,  but  if  the  sub- 
stance of  the  oath  is  given,  then  the  mandates  of  the  law 
are  complied  with.®  It,  of  course,  is  better  to  always 
follow  the  wording  of  the  statute. 

7_0'Eeilly  v.  People,  40  Am.  270;  Faith  v.  State,  32  Tex.  375; 
Eep.  526,  1  Phil,  on  Ev.  15.  State  v.  Kane,  26  Me.  33. 

8 — State  V.  Dayton,  53  Am.  Dec. 
C.  L.— 39 


610  Criminal  X^aw 

§  658.  Those  who  voluntarily  appear  on  same  plane 
with  those  involuntarily  appearing.  All  persons  who 
appear  and  testify  in  a  cause  are  bound  under  the  law 
to  speak  the  truth  concerning  the  matters  of  which  they 
testify,  and  it  makes  no  difference  whether  the  appear- 
ance was  involuntary  or  voluntaiy.  So,  where  one  testi- 
fies voluntarih^  to  a  statement  of  facts  without  objec- 
tion, to  which  he  might  have  interposed  a  plea  of  privi- 
lege, upon  the  grounds  that  he  could  not  be  compelled 
to  testify  to  matters  which  would  have  the  effect  or  the 
tendency  to  incriminate  himself,  is  guilty  of  perjury  if 
he  gives  false  testimony.®  So,  also,  where  he  is  an  in- 
competent witness.^"  This  latter  refers  particularly  to 
that  class  of  persons  who  are  qualified  to  testify,  except 
where  the  law  has  placed  disabilities  upon  them  in  par- 
ticular instances,  as  where  the  husband  and  wife  are 
not  permitted  to  testify  against  each  other,  or  that  a 
party  shall  not  testify  in  his  own  behalf,  etc.  But  the 
rule  would  not  apply  to  persons  in  totem  in  capax,  such 
as  infants  and  insane  persons. 

§  659.  What  the  statutes  require  must  be  done.  In  gen- 
eral, where  the  statutes  require  a  thing  to  be  done, 
then  in  the  main,  it  must  be  performed  in  the  man- 
ner directed.  Statutes  veiy  often  i)rovide  who  shall 
administer  oaths,  in  particular  matters  and  under 
what  circumstances  they  may  be  given,  and  how  taken, 
and  where  such  is  the  case  there  can  be  no  perjury  unless 
the  statute  lias  been  followed  in  a  substantial  manner.^^ 
Thus,  if  it  is  provided  that  the  oath  should  be  admin- 
istered by  a  certain  ofhcer,  it  will  be  no  perjury  unless  it 
was  administered  as  directed.    If  the  aflfidavit  is  to  be 

0 — Mnckin  v.  Pcoiilc,  Fti]  Am.  Rep.  discussion  of  llir  coinpi'toiiry  of  Wit- 
IB?,  nosscs. 

10 — rii;riiilMTlaiii  V.   ]'.•(. J. Ic,  S.'}  N.  11— Htiitc  v.  D.'ivton,  .IM   Am.  Doc. 

.1.   S.-i,   80    Am.    Doc.    2ri5;    Pmtt.   v.  270;    State  v.  Gates,  17  N.  H.  37.3; 

Price,  11  Wend.  128;  United  Slntos  Rfato  v.  Trask,  42  Vt.  152;  Com.  v. 

V.    Grunkcnd,    30    Fed.    672,    for    a  Carol,   105  Mass.  582. 


Pebjuey  611 

taken  under  certain  circumstances,  tlien  tiie  conditions 
should  be  complied  with;  as  where  the  statute  requires 
that  an  affidavit  should  be  reduced  to  writing,  it  is  no 
perjury  to  swear  to  the  facts  unless  in  writing.^^ 

§  660.  The  oath  must  have  been  administered  by  one 
authorized  to  do  so.  There  is  no  validity  or  binding 
force  to  an  oath  in  law  unless  it  is  administered  by  one 
whom  the  law  has  conferred  the  authority  to  administer 
it.  The  authority  is  not  acquired  by  implication,  but 
must  be  by  express  authority  of  law.  At  the  common 
law  perjury  was  assigned  upon  oaths  taken  in  some  ju- 
dicial proceeding,  but  under  our  statutes  it  is  not  con- 
lined  to  judicial  proceedings  only,  but  to  all  oaths  which 
the  particular  statute  declares  to  be  perjury  or  false 
swearing.  Under  this,  the  authority  may  very  properly 
be  arranged  under  three  heads.  1.  The  officer  or  person 
administering  the  oath  must  be  authorized  to  adminis- 
ter the  oath  as  the  law  directs.  2.  The  officer  or  person 
administering  the  oath  must  administer  the  same  within 
the  territorial  jurisdiction  conferred  by  the  law.  3.  The 
court  in  which  the  false  oath  is  given  must  have  juris- 
diction of  the  subject  matter  and  of  the  persons.^' 

§  661.  Who  empowered  to  administer  oath  at  common 
law.  At  the  common  law  the  judge,  or  the  clerk  under 
the  direction  of  the  judge,  could  administer  the  oaths  in 
the  proceeding  before  the  court.  But  the  statutes  of 
the  several  jurisdictions  provide  specifically  who  shall 
administer  oaths,  and  where  such  is  the  case  the  person 
or  officer  so  named  must  administer  it.  But  it  has  been 
held,  that  where  one.  without  authority  administered  an 
oath  in  the  presence  of  the  court  or  judge,  that  perjury 

12 — Covey  v.  State,  23  Tex.  App.  and   note;    Melford   v.    Teonton,    10 

388,  5  S.  W.  283.  Okla.  741,  63  Pae.  958,  54  L.  E.  A. 

13— United  States  v.  Hall,  131  U.  513;   State  v.  Townley,  67  Ohio  St. 

S.  50,  33   (M.  S.  L.  Ed.)   97;  State  21,   65  N.  E.   149,  93   A.   S.   R.   636 

V.  Shupe,  16  la.  26,  85  Am.  Dec.  496  and   note. 


612  Criminal  Law 

could  be  assigned  upon  the  false  testiinonv  given  under 
it.^*  In  another  case,  however,  the  court  held,  that  where 
a  deputy  administered  the  oath  that  he  was  not  under 
the  circumstances  of  the  particular  case  the  mouthpiece 
of  the  judge,  and  hence  the  perjury  is  groundless.^^  Offi- 
cers de  facto,  as  well  as  officer  de  jure,  have  authority  if 
they  are  the  officers  designated  by  the  law  to  administer 
oaths.  Not  so,  however,  an  usurper,  who  without  right, 
assumes  to  perform  the  duties  of  an  officer.^^  So,  an  arbi- 
trator, upon  whom  the  law  has  not  conferred  express 
authority  to  administer  an  oath  to  a  witness,  false  testi- 
mony is  not  perjury,^''^  nor  where  a  notary  public  admin- 
isters the  oath,  when  the  law  provides  that  it  shall  in  the 
particular  case  be  administered  by  a  court  or  justice  of 
the  peace." 

§  662.  The  oath  must  be  administered  in  the  territorial 
jurisdiction  of  the  officer.  AVhore  the  officer  is  limited 
by  the  law  to  a  certain  territorial  jurisdiction  in  which 
he  has  authority  to  act,  an  oath  administered  by  him  in 
any  other  place  than  the  law  provides  would  not  sub- 
ject one  to  perjuiy  for  false  swearing.  An  oath  without 
authority  is  void  and  perjury  is  not  assignable  upon  it 
for  the  reason  that  if  no  authority,  then  no  injuiy  can 
occur  by  the  false  oath.  Perjur%^  is  criminal  because 
the  effect  of  false  swearing  is  to  injure  another  against 
whom  it  is  directed.  For  we  have  been  told  by  Sir  Wm. 
Blackstone,  that  if  a  perjurer  by  his  testimony  convicts 
another  of  a  capital  offense,  he  is  himself  guilty  of  the 
capital  offense.  It  is  self-evident  that  a  state  or  county 
officer  would  have  no  authority  to  administer  oaths  in 

14 — Stevens  v.  State,  1  Swan.  157.  17— State  v.  Jackson.  36  Ohio  St. 

15— People  V.  Cohen,  118  Tal.  74,  281. 

50   Pac.   20.  18— State  v.  McClusky,  8  McCord 

16- Morford  v.  Territory,  10  Okl.i.  J-.  308. 
741,    .54    L.    R.    A.    513.      Ex    part.' 
Warrl,  173  V.  8.  452. 


Perjury  613 

till'  territorial  jurisdiction  of  another  state.  So,  ordi- 
narily, notaries  public  are  confined  to  the  limits  of  the 
county  of  their  residence,  and  so  all  county  officers  are 
confined  to  their  own  counties.^^ 

§  663.  The  court  must  have  jurisdiction  of  person  and 
subject  matter.  As  we  have  seen,  the  court  before  whom 
the  alleged  oath  has  been  taken  must  have  jurisdiction 
of  the  person  and  the  subject  matter  of  the  controversy 
in  order  that  perjury  may  be  assigned  upon  the  false 
testimony.  In  the  preceding  section  we  have  called  at- 
tention to  the  fact  that  an  officer  must  not  go  beyond 
the  limits  of  the  subdivision  over  which  he  has  jui'is- 
diction  to  perfoiTQ  the  act  of  administering  an  oath,  and 
in  the  present  section  we  confine  ourselves  to  the  juris- 
diction of  the  court,  where  it  is  dependent  upon  the  au- 
thority over  the  parties  to  the  action  and  to  the  authority 
over  the  subject  matter.  Of  course,  there  is  no  general 
rule  which  will  meet  all  eases,  for  the  several  statutes 
iiave  different  provisions  covering  the  circumstances  in 
which  the  several  courts  obtain  jurisdiction  over  the 
parties  to  the  suit,  and  also  over  the  matter  in  contro- 
versy. But  no  judgment  can  be  properly  rendered 
a^-ainst  a  person  unless  he  is  within  the  jurisdiction  of 
the  court  in  accordance  with  the  statute,  or  where  he 
has  waived  his  rights.  It  is  elementary  that  in  suits  of 
a  civil  nature  the  defendant  may  waive  his  right 
as  a  non-resident,  and  may  place  himself  within  the 
jurisdiction  of  the  court,  but  Avhere  the  defendant  does 
not  appear,  no  judgment  of  a  personal  nature  can  be 
rendered  against  him,  and  the  same  would  be  void  for 
the  want  of  jurisdiction  of  the  court  over  the  person, 
and  perjury  committed  by  him  in  a  trial  of  the  matter 
would  not  be  subject  of  conviction.    So,  if  the  court  has 

19— Boss  V.  State,  55  Ga.  192,  21  State,  90  Tenn.  501,  17  S.  W.  107. 
Am.  278;  People  v.  Kelley,  38  Cal.  25  A.  S.  R.  700,  15  L.  R.  A.  381, 
145,    99    Am.    Dec.    360;    Exum    v.       S.  W.  25,  A.  S.  R.  703. 


614  Criminal  Law 

no  jurisdiction  of  the  subject  matter,  then  the  judgment 
is  void,  and  false  swearing  in  the  proceeding  would  not 
be  perjuiy.  If,  however,  the  judgTQent  has  been  rendered 
irregularly,  then  perjury  may  be  assigned  upon  the  false 
oath.  So,  the  rule  may  be  stated  generally,  that  if  the 
judgment  is  in  a  court,  for  any  reason  having  no  juris- 
diction, the  proceedings  are  void,  and  the  false  swearing 
is  not  perjury.^** 

§  664.  What  perjury  must  be  prosecuted  in  the  federal 
courts.  Any  false  oath  taken  in  a  matter  affecting  the 
United  States  is  prosecuted  in  the  federal  courts.^^ 
There  are  a  great  many  matters  over  which  the  United 
States  has  jurisdiction,  the  oaths  affecting  which  are 
administered  by  state  officers,  or  officers  whose  authority 
is  derived  from  state  laws,  are  under  the  laws  of  the 
federal  government  empowered  to  administer  oaths  in 
particular  instances,  with  alike  binding  force  as  if  they 
were  in  fact  federal  officers.  In  such  cases  perjury  is 
prosecuted  in  the  federal  courts.^^  All  perjury  arising 
in  a  state  jurisdiction,  of  and  concerning  matter  over 
which  the  state  government  has  jurisdiction  is  prose- 
cuted in  the  state  court.  So,  also,  if  by  the  laws  of  one 
state  the  officers  of  another  state  are  empowered  to  ad- 
minister oaths  effecting  matters  in  controversy  in  the 
former,  the  latter  has  jurisdiction  over  the  prosecution  of 
the  perjury.^' 

20 — For  a  full  discussion  of  the  ford  v.  Territory  of  ()kl;i..  in  ()kl;i. 
subject  of  the  text  see  following  741,  54  L.  I\.  A.  :nui  tho  note  there- 
cases:    Buell  V.  State,  45  Ark.  330;  under. 

People  V.  Cohen,  118  Cal.  74,  50  Pac.  21— Brown  v.  U.  8.  Circuit  Court, 

20;  Fcrfoot  v.  Com.,  89  Ky.  174,' 12  May,    1875. 

8.  W.  189;   Butler  v.  State,  36  Tex.  22— U.   S.   v.   Bailey,  9   Pet.  238; 

App.   483,  38   S.  W.   787;    State  v.  State  v.  Adams,  4  Black.  14G;  Peo- 

Gallimon,  24  N.  C.  (2  I.  Red.)  374;  pie  v.  Kelly,  38  Cal.  145,  99  Am.  Dec. 

Steinson    v.    State,    6    Yearp.    531;  360;  Ex  parte  BriRjjs,  2  Woods  428 ; 

State  V.  Wimbcrly,  40  La.  Ann.  460,  State's   courts   have   no   jurisdiction 

4  So.   161  ;   Maynard   v.   People,  135  arising  under  an  act  of  congress. 

III.  416,  25  N.  E.  740;  State  v.  Mc-  23— Stewart  v.  State,  22  Ohio  St. 

Cone,  59  Vt.    117.  7   Afl.  4(16;    Mor-  477;    People   v.    Martin,    175   N.   Y. 


Perjury  615 

§665.  Testifying^  to  facts  believed  to  be  true  is  not 
perjury.  The  oath  must  be  false. .  If  the  witness  testi- 
fies to  what  he  believes  to  be  true,  it  is  not  perjury, 
although  it  was  in  fact  false.  In  fact,  it  appears  to  be 
the  rule,  that  if  the  accused  makes  oath  that  he  believes 
a  statement  to  be  true,  when  there  is  not  a  reasonable 
ground  to  warrant  such  belief,  he  nevertheless  will  be 
guilty  of  the  perjury.^*  As  to  this  there  is  a  conflict  of 
authority.  But  it  would  no  doubt  be  perjury  if  the  state- 
ment is  known  to  be  false  at  the  time  of  making  the 
statement  on  oath,  that  he  believed  it  to  be  true.  If 
there  is  any  inadvertence  in  making  the  oath,  such  as 
negligence  in  ascertaining  the  true  facts,  without  any 
intention  of  making  a  false  statement,  it  is  not  perjury. 
But  if,  however,  the  testimony  is  recklessly  and  wantonly 
given  in  total  disregard  whether  the  statement  is  true 
or  false,  it  is  quite  clear  that  perjury  might  be  assigned. 
Thus,  if  a  witness  makes  a  statement  as  true,  when  in 
fact  he  does  not  know  whether  it  is  true  or  false,  he  is 
guilty  of  perjury.''^ 

§666.  The  testimony  must  have  been  given  willfully 
and  corruptly.  This  proposition  is  essentially  contained 
in  the  preceding  subdivision.  Perjury,  in  common  with 
all  other  crimes,  must  be  assigned  upon  a  criminal  in- 
tent a  malo  animo.  Thus,  for  a  witness  to  seek  legal 
advice  as  to  the  propriety  of  testifying  to  certain  facts, 
and  thereupon  being  advised  that  he  may,  without  testi- 
fying falsely,  testify  to  such  facts  honestly  and  in  good 
faith,  it  is  not  perjury.  So,  also,  where  one  swears  to 
an  affidavit,  prepared  by  one  in  whom  he  has  confidence, 
upon  a  statement  made  by  him,  known  to  be  true, 
will  not  be   guilty  of  the  false   swearing  if  he  hon- 

315,  67  N.  E.  589,  96  Am.  St.  Eep.  U.  S.  v.  Adkins,  Sprague,  558;  State 

628.  V.  Cruikshank,  6  Black.  62;  Pattrick 

24 — 3  Greenl.  Sec.  200;  see  note,  v.   Smoke,   3   Straub.   147;    State  v. 

page  169.  Knox,  Phill  (N.  C.)  312;  People  v. 

25— U.  S.  V.  Shellmire  Bald,  370;  McKinney,  3  Park  Cr.  Law  570. 


61 G  Criminal  Law 

estly  believed  he  was  in  fact  swearing  to  the  truth,  al- 
thongh  in  fact  it  was  false.^^  AMiere  a  person  does  a 
thing  upon  a  mistake  of  the  facts,  he  cannot  be  said  to 
have  done  it  with  a  criminal  mind.  Thus,  a  false  state- 
ment made  through  inadvertence  or  under  agitation,  or 
by  mistake,  is  not  perjury,  although  the  statement  may 
have  been  willfully  made,^''  under  the  conscientious  belief 
at  the  time  that  he  was  speaking  the  truth. 

§  667.  The  testimony  must  be  of  some  matter  materiaJ 
to  the  issue  or  point  in  controversy.  If  the  fact  or  facts 
testified  to  are  immaterial  in  the  matter  at  issue,  al- 
though false  and  deliberately  testified  to,  it  is  not  per- 
jyjy  28  r^i-^Q  question  of  the  materiality  of  the  alleged 
false  testimony  is  a  question  of  law  for  the  court  to 
determine,  and  not  one  of  fact  for  the  jury.  It  is  not 
necessary  that  the  evidence  be  believed,  or  that  it  in 
fact  had  any  bearing  upon  the  final  results  of  the  con- 
troversy.^^ It  seems,  that  it  is  sufficient  if  it  might  have 
had,  and  was  given  pui-posely  and  with  the  intent  to 
deceive.  An  extrajudicial  oath,  being  one  not  author- 
ized by  law,  altliough  it  may  be  regarded  as  binding 
u})()n  the  conscience,  is  not  the  basis  of  perjury,  although 
false.  Incompetent  testimony,  although  erroneously  ad- 
mitted by  the  court  in  the  exercise  of  his  legal  judg- 
ment, being  false,  is  subject  of  perjury.^® 

26 — U.   S.   V.   Stanley,   6   McLean  Nelson     v.     State,     47     Miss.     621  ; 

409;  State  v.  Conner,  3  McLean  573;  Beadier  v.  Anderson,  45  ]\Iicli.  543, 

Tuttlc  V.  People,  36  N.  Y.  431.  8  N.  W.  539;   State  v.  Meadow,  54 

27— Garza  v.  State,  47  S.  W.  983  Vt.  126. 

(Tex.):      There    arc     numerous    au-  29 — llaiii])crs    CaKe,   3    Lean    230; 

thoritics  which  .support  this  doctrine.  Wood  v.  I'eople,  59  X.  V.  117;   I'ol- 

See    2    Ed.    Kn(,'.    &    Am.    Encly.   22  lard  v.  People,  69   111.   1  IS. 

title   Perjury.  30— U.    S.    v.    (irotlkau,    30     I'ed. 

28— Martin  v.  MilKr,  L's  Am.  Dec.  Rep.  672;   Sliarj)  v.  White,  21    Teiin. 

342,  4  Mo.  47;  People  V.  McDerniott,  434;     Vuii    Stmihcrj,^    v.     Kotz,     m 

8  C'al.  288;   Com.  v.   Parker,  2  Cusli,  .Johns.    lOO;    CJi.-milMTliiiii    \.    l'io|,l.', 

212;    frum]!.    v.    Coin.,    75    Vu.   922;  23    N.    V.   K5. 


Peejuey  617 

§  668.  Witness  compelled  to  testify  against  himself, 
false  testimony  is  not  perjury.  We  have  incidentally 
mentioned  in  other  places  that  a  party  may,  in  matters 
pending  before  the  courts,  or  in  the  course  of  adminis- 
trative justice,  waive  certain  of  his  rights  personal  to 
himself.  Such  as  his  right  or  privilege  to  be  sued  in 
the  county  or  state  of  residence,  his  right  to  interpose 
his  plea  of  fomier  conviction  or  acquittal,  his  right  to 
a  jury  trial  in  misdemeanors,  his  right  that  a  jury  in  a 
felony  case,  of  which  he  is  a  defendant,  may  separate 
before  a  verdict,  unless  he  interpose  an  objection;  to 
these  and  many  other  rights  or  privileges  which  are  per- 
sonal to  him  he  is  taken  as  having  consented  to,  that  is, 
waived  his  privilege.  So,  where  a  witness  has  a  privi- 
lege of  not  testifying  in  a  cause,  he  may  interpose  this 
upon  the  ground  that  his  testimony  may  tend  to  crimi- 
nate him,  but  if  he  fails  to  do  so  with  full  knowledge 
that  he  has  such  right,  and  he  testify  falsely,  he  is  guilty 
of  perjury.  As  where  he  is  defendant  in  a  criminal 
prosecution  he  is  not  compelled  to  testify,  but  he  may 
waive  this  right  or  privilege  and  thereby  become  guilty 
of  perjury.^^  If,  however,  he  is  compelled  to  testify 
against  himself,  and  make  statements  that  are  untrue, 
he,  it  appears  is  not  guilty  of  perjury.^^ 

§  669.  Rule  as  to  corroboration.  The  ancient  rule  was, 
that  in  the  case  of  perjury,  the  testimony  of  two  wit- 
nesses to  the  alleged  false  oath  was  necessary  to  a  con- 
viction.^^ This  has  been,  however,  modified,  and  it  seems, 
that  in  the  absence  of  a  statute  peiTuitting  it,  one  cor- 

31— Mackin    v.    People,    115    111.  United  States,  231  U.  S.  710,  58  L. 

312,  56  Am.  Eep.   167.  Ed.  448. 

32— See     following     cases     which  33—4    Black.    358;     2    Euss.    on 

illustrate  the  rule  and  the  principle:  Crimes    179;    1    Greenl.    356;    State 

People  V.  Cohill,  193  N.  Y.  232,  20  v.  Peters,  107  N.  C.  876. 
L.  E.  A.   (N.  S.)   1084;   Cameron  v. 


618  Criminal  Law 

roborated  by  evidence  aliunde,  is  sufficient.'*  The  old 
rule  was  founded  upon  the  assumption,  that  the  oath  of 
one  man  was  as  likely  to  be  true  as  that  of  another,  and 
hence  the  oath  of  but  one  witness  only  balanced  the 
oath  of  the  defendant.  The  logic  of  the  rule  has  been 
recognized  by  the  judicial  literature  of  the  whole  coun- 
try. Even  the  statutes  require  that  one  witness  be  cor- 
roborated by  some  kind  of  evidence  which  strengthens 
him.  Under  the  penal  code  of  Texas,  which  requires  that 
no  conviction  can  be  had  unless  by  the  testimony  of  two 
credible  witnesses,  or  one  credible  witness  strongly  cor- 
roborated, it  has  been  held,  that  if  only  one  witness  has 
testified  without  corroboration,  the  court  must  instruct 
the  jury  to  acquit.*^  Where,  however,  there  is  any 
corroboration,  the  matter  rests  with  the  jury  as  to  the 
credibility  of  the  witness  and  the  sufficiency  of  the  cor- 
roboration. 

34 — 1    Greenl.   375;   IJnderhill   on      See  18  Tex.  App.  134,  26  Tex.  App. 
Ev.  382.  14,   30    Tex.   App.   284;    Gartner   v. 

35— Cox  V.  State,  3  Tex.  App.  479;       State,  16  Tex.  App.  215. 


CHAPTER  XL 

PREVENTIVE  JUSTICE 

S  670.  'J'lie  law  as  at  coniuion  law.  §  674.  Considered  under  the  statutes. 

§  671.  Security     may     be     required       §  675.  The  extent  of  the  threat  and 
after  conviction.  the   probable    cause   of   in- 

§  672.  At  common  law  was  confined  jury, 

to  gross  misdemeanors. 

§  673.  At  common  law  was  not  re- 
garded as  punishment. 

§  670.  The  law  as  common  law.  Another  principle  of 
the  common  law  which  inflicts  a  kind  of  negative  pun- 
ishment is  known  in  the  books  as  ^'preventive  justice." 
The  punishment  is  not  for  what  actually  takes  place  as 
the  result  of  a  violation  of  the  criminal  law,  but  is  for 
what  is  in  anticipation  only.  Where  it  is  known  that 
an  offense  is  about  to  be  committed,  or  there  is  a  just 
cause  to  believe  that  one  will  be  committed,  founded 
upon  some  threat  against  the  life  of  another,  or  to  do 
some  great  harm,  or  commit  some  gross  misdemeanor, 
the  magistrate  is  authorized  under  the  common  law  to 
cause  the  person  to  be  apprehended,  and  require  him 
to  enter  into  security  that  he  will  not  commit  the  things 
charged  against  him,  and  upon  his  failure  or  refusal 
to  enter  into  the  security,  he  may  be  committed  to  prison 
at  the  discretion  of  the  court,  in  order  that  the  threat- 
ened injury  may  be  averted.^  It  is  not  sufficient  that 
a  mere  suspicion  exist  that  an  offense  or  threatened 
injury  will  be  inflicted;  there  must  be  something  more 
tangible;  there  must  be  sufficient  evidence  to  satisfy  the 

1—4  Black.  252-255;  State  v.  Gil- 
liland,  51  W.  Va.  278,  41  S.  E.  131, 
90  Am.  St.  Rep.  793. 

619 


620  Criminal  Law 

magistrate  that  a  crime  will  be  committed,  or  that  the 
threats  are  of  such  a  serious  nature  as  to  make  it  prob- 
able that  the  threatened  injury  will  be  inflicted,  unless 
prevented.  The  common  law  in  this  respect  has  rarely- 
been  resorted  to  in  this  country  for  authority  to  pro- 
ceed in  the  matter  of  preventing  the  commission  of  of- 
fenses. There  seems  to  be  only  a  few^  cases  where  the 
common  law  alone  has  been  resorted  to.  The  reason  for 
this  is,  of  course,  because  the  states  have  provided,  by 
statute,  means  to  reach  all  matters  of  this  kind. 

§  671.  Security  may  be  required  after  conviction.  Th'e 
principles  of  the  common  law  did  not  confine  the  right 
and  power  of  the  courts  to  prevent  the  commission  of 
an  offense  in  the  first  instance,  but  was  empowered  to 
prevent  the  repetition  of  the  same  offenses  or  offense  of 
the  same  or  like  kind  after  the  conviction  and  the  assess- 
ment of  the  punishment  under  the  judgment  of  the  court 
for  the  offense  committed.  There  has  been  some  ques- 
tion in  this  country,  whether  this  imposition  of  the  court 
upon  the  defendant  after  the  commission  of  the  offense, 
and  in  addition  to  the  punishment  imposed  for  its  vio- 
lation, could  be  legally  done,  and  the  most  recent  case 
has  held,  that  where  the  offense  is  a  common  law  offense, 
and  the  punishment  is  a  connnon  law  punishment,  it  may 
be  done.  But  where  the  statute  has  provided  for  the 
punishment  of  crimes,  that  punishment  must  be  inflicted 
only;  as  in  the  case  of  selling  liquor  without  a  license 
from  the  state,  the  judgment  of  the  court  was  that 
Die  defendant  pay  the  sum  of  fifteen  dollars  and  the 
costs  of  the  prosecution,  and  in  addition,  that  he  give 
bond,  with  good  security,  in  the  penalty  of  five  hundred 
dollars,  conditioned  to  be  of  good  behavior  towards  all 
tlio  citizens  of  the  state,  and  not  to  sell  intoxicating 
drinks  for  a  period  of  hvcKc  iiioiillis.  'I'liis  power  of  the 
couils  at  tlie  cominon  law  seoniod  to  bo  a  discrotionai'v 
one.  and  fliat  it  was  not  always  iiidiclcd  except  where  the 


Preventive  Justice  621 

court  thought  that  it  would  be  for  the  best  interests  of 
the  couiitiy,  or  where  he  thought  that  from  the  nature 
of  the  crime,  or  the  inclination  of  the  particular  defend- 
ant, the  crime  would  be  repeated,  or  attempted,  to  the 
annoyance  of  the  people,  or  even  of  particular  persons. 
This  discretion  must  be  a  legal  one,  and  not  arbitrary, 
on  the  same  plane  and  governed  by  the  same  authority 
which  a  court  of  justice  has  in  any  case  to  deteiTnining 
a  matter  which  is  by  the  law  submitted  to  his  somid 
judgment.^ 

§  672.  At  the  common  law  power  was  confined  to  gross 
misdemeanors.  The  evidence  appears  at  this  time  very 
meager  why  the  common  law  only  granted  the  right  after 
conviction  to  require  the  giving  security  against  the 
repetition  of  the  convicted  crime.^  It  is  most  probable 
that  it  was  confined  to  gross  misdemeanors,  for  the  rea- 
son that  the  punishment  for  the  commission  of  a  felony 
was  death,  and  because  the  misdemeanors  of  the  les- 
ser grades  were  not  of  sufficient  magnitude  to  warrant 
the  apprehension  of  any  serious  consequences  from  the 
repetition.  For  in  the  nature  of  the  punishment  for  the 
felony,  the  accused  being  executed,  could  not  as  a  matter 
of  fact  recommit  the  offense,  and  that  in  the  misdemean- 
ors of  the  lesser  grades  no  great  harm  could  follow  the 
repetition.  The  power  of  the  courts,  where  there  was  a 
threatened  injury,  was  not  confined  to  gross  misdemean- 
ors merely,  but  extended  to  felonies  as  well,  for  there 
was  a  greater  apprehension  in  a  threatened  felony  than 
there  possibly  could  be  in  that  of  gross  misdemeanors. 
''If  a  person  has  been  convicted  of  a  misdemeanor,  it  is 
usually  part  of  the  judgment  that  he  shall  find  security 
for  his  good  behavior  for  some  time." 

2— state  V.  Gilliland,  51  W.  Va.  3— State  v.  Gilliland,  51  W.  Va. 

278,  90  Am.  St.  Eep.  793,  and  note.       278,  90  Am.  St.  Rep.  793.     See  note 
See  following  cases:  1  Cox  C.  C.  413.       to   this   ease. 


622  CEiMiNAii  Law 

§  673.  At  the  common  law  was  not  regarded  as  punish- 
ment. Blackstoiie  in  liis  commentaries  did  not  regard 
this  power,  or  rather,  this  exercise  of  power  of  the  court 
punishment.  But  under  the  statutes  it  appears  to  be 
considered  by  the  courts  as  a  punishment.  This  is  no 
doubt  the  correct  view.  There  is  strong  reason,  from 
a  close  reading  of  the  commentaries  of  Sir  William 
Blackstone,  that  he  regarded  it  as  a  punishment.  This 
view  is  strongly  supplemented  by  the  effect  of  the  judg- 
ment in  this,  that  in  the  failure  or  refusal  to  give  the  bond 
or  the  security  as  required,  the  alternative  judgment  is 
imposed  that  the  defendant  be  imprisoned  until  he  com- 
ply with  it.* 

§  674.  Considered  under  the  statutes.  It  has  been  held 
constitutional  for  the  legislature  to  enact,  that  the  judge 
or  the  court  tiying  a  case,  in  addition  to  the  punishment 
provided  by  the  statute,  may  at  his  discretion,  impose  the 
I'oqniroment  that  the  defendant  enter  into  security  to 
refrain  from  commission  of  like  offenses,  and  insure  his 
good  behavior  for  a  term  of  years,  or  in  default,  to  be 
committed  to  prison  until  security  is  given.^  In  a  Penn- 
sylvania case  it  was  held  that  even  where  the  defendant 
had  been  acquitted  that  the  court  may  for  the  purpose 
of  preventing  a  repetition  of  the  crime  impose  the  pen- 
alty of  security.^  Tlio  powers  generally  possessed  by 
the  courts  under  the  various  statutes  are  that  the  magis- 
trate or  judge  upon  whom  the  jurisdiction  is  conferred 
have  a  summary  discretion.  That  as  a  rule  there  is  no 
appeal  from  tlie  judgment  of  tlie  magistrate.  From  the 
]iatui-('  of  the  olrject  intended  to  be  corrected,  it  is  neces- 
sary that  the  magistrate  have  suiiiinary  powers  and  au- 
thority, foi-  if  it  wcj-e  otherwise,  tlie  ci-ime  intended  to 


Black.  2.')2.  6— n.-nnl.or    v.    Com.,     lo    I'.i.    St. 

5— State    V.    Chnndlcr,    .31     Knns.       .339. 
201,  1  P.ic.  787;  State  v.  Pamcntcr, 
f>0  KnnH.  Hr,7,  .56  T'ac.  1132. 


Preventive  Justice  623 

be  prevented  would  in  all  probability  be  committed  be- 
fore the  remedial  processes  of  the  law  could  be  placed 
in  operation.''  The  courts  appear  to  be  almost  unani- 
mous in  holding  that  it  is  within  itself  in  the  nature  of 
a  crime  but  the  defendant  is  not  entitled  to  all  rights  in- 
cident to  other  crimes.  Such  as  the  riglit  to  an  appeal, 
juiy  trial  and  tlie  like.  The  proceeding  is  usually  begun 
by  affidavit  of  the  party  against  whom  threats  of  injury 
have  been  made,  and  then  upon  a.  warrant  of  arrest  issued 
by  the  magistrate  based  upon  it.  The  initiation  may 
be  made  by  the  state  in  its  name.  The  manner  of  pro- 
ceeding in  the  matter  is  controlled  by  the  statute,  and  the 
terms  thereof  should  be  substantially  complied  with.® 

§  675.  The  extent  of  the  threat  and  probable  cause  of 
injury.  We  have  seen  that  the  justice  or  the  magistrate 
must  exercise  a  sound  and  legal  discretion  in  the  mat- 
ter of  requiring  the  security.  This  discretion  must  be 
founded  upon  evidence,  and  not  upon  the  private  and 
independent  opinion  of  the  justice,  unless  the  same 
comes  within  his  knowledge  as  facts.  But  usually  the 
statutes  require  that  some  proceeding  be  begun  before 
the  justice  by  the  affidavit  of  the  person  injured  or  some 
person  for  him.^  This  may  usually  be  done  by  some  one 
who  occupies  the  relation  of  protector  of  another.  The 
essentials  of  the  affidavit  is  provided  by  the  statute,  and 
the  same  should  be  followed  in  its  language,  unless  there 
is  some  reason  requiring  clearer  allegations.  The  facts 
of  the  particular  case  may  require,  in  order  to  reach 
the  intents  or  the  probable  execution  of  the  evil  inten- 
tions of  the  accused,  allegations  to  extend  to  the  varied 
transaction  of  the  parties.^**    Under  the  Indiana  statute 

7— Howard  v.  State,  121  Ala.  23,  9— State  v.  Sargent,  74  Minn.  245, 

25  So.  1000;   State  v.  Locut,  93  N.  76   N.   W.   1129;    State   v.   Bass,   75 

C.  577.  N.  C.  139. 

8— State   V.    Sayer,   35   Ind.    379;  10— Reg.  v.  Dunn,  12  A.  &  F.  599; 

State  V.   Steward,  48  Ind.   146.  State  v.  Bass,  75  N.  C.  139. 


624  Criminal  Law 

it  is  sufficient  to  allege  that  the  affiant  has  just  cause 
to  fear  that  violent  injury  to  his  person  will  be  inflicted 
by  the  respondent;  that  the  affiant  has  just  cause  to 
fear,  and  does  fear,  that  the  defendant  "will  kill  and 
murder"  him.^^  The  investigation  must  be  made  with 
the  view  of  preventing  an  injury  which  is  imminent  or 
probably  so. 

11— Beckwith  v.  State,  21  Ind. 
225;  State  v.  Davis,  138  Ind.  11,  37 
N.  E.  397. 


CHAPTER  XL  [ 

PRISON  BREACH,  ESCAPE  AND  RESCUE 

§  676.  Defined.  §  682.  Whon  a  prisoner  may  be  di.s- 

§  677.  What     the     indictment     must  charged. 

show.  §  683.  Voluntary  escapes  defined. 

§  678.  Officers  neglect  of  duty.  §  684.  Resisting  the  service  of  legal 

§  679.  Prisoners    escaping.  process. 

§  680.  Defendant  may  break,  when. 
§  681.  Prisoner  must  be  held  by  legal 

warrant. 

§  676.  Prison  breach,  escape  and  rescue,  defined.    Each 

of  these  is  a  distinct  offense  from  the  other,  but  are  very 
closely  allied,  and  it  presents  some  nice  distinctions,  to 
determine  the  elements  of  each.  The  principles  governing 
them  seem  to  be  obscured  by  the  lapse  of  time.  The  books 
contain  a  frequent  reference  to  them,  but  are  so  limited 
in  the  discussion  that  it  is  difficult  to  discover  with 
accuracy  the  principles  which  control  them.  In  the 
absence  of  statutoiy  provisions  covering  these  offenses 
the  common  law  could  no  doubt  be  resorted  to.  Most 
of  the  states  have  ample  provisions  covering  such  con- 
ditions, and  it  is  improbable  that  it  will  be  necessary  to 
be  controlled  by  the  common  law,  except  in  rare  instances. 

§  677.  What  the  indictment  must  show.  It  is  neces- 
sary,  in  order  to  convict  one  for  escaping  from  prison, 
to  allege  in  the  indictment,  and  this  sustained  by  proof, 
that  the  imprisonment  was  legal.  If  one  is  unlawfully 
placed  in  prison  his  escape  therefrom  is  no  crime.^  But 
if  placed  there  upon  legal  process,  it  is  no  defense  to 

1 — state  V.  Leach,  18  Am.  Dee. 
118 ;  Com.  v.  Barker,  133  Mass.  399 ; 
State  V.  Beebe,  13  Kans.  589. 

c.  L.— 40  625 


626  Criminal  Law 

show  that  the  accused  was  afterw^ards  acquitted  of  the 
crime  for  which  he  was  confined  at  the  time  of  the 
escape.  The  escape  is  a  substantive  crime,  and  the  law 
for  the  good  of  society  enforces  the  restraint  of  those 
charged  with  crime,  until  such  time  as  the  truth  of  the 
matters  may  be  legally  inquired  into  and  judgment  there- 
on had.  It  therefore  becomes  of  the  utmost  importance 
that  the  defendant  to  a  criminal  charge  be  compelled  to 
appear  at  the  time  of  the  investigation,  and  that  he  be 
punished  if  he  is  found  to  be  guilty.  So,  the  court  in 
one  case  says:  "He  escaped  from  his  imprisonment  for 
an  alleged  burglaiy,  and  lias  never  been  convicted  of 
such  burglary.  His  offense  then  comes  within  the  let- 
ter of  the  statute.  When  a  party  is  in  legal  custody  and 
commits  an  escape,  w^e  do  not  depend  upon  some  future 
contingency  as  to  whether  such  an  escape  is  an  offense 
or  not. ' '  ^ 

§  678.  Officers  negligent  of  duty.  At  the  common  law 
an  officer  who  negU'cled  to  i)i'rform  his  official  duties  was 
guilty  of  a  misdemeanor,  and  punished  by  fine  and  im- 
prisonment. This  is  known  in  the  books  as  non- 
feasance. It  simply  means  tliat  the  officer  charged  by 
law  to  do  a  certain  thing  has  failed  to  do  it.  The  law 
looks  upon  an  omission  by  an  officer  to  do  what  the  law 
requires  him  to  do  as  criminal,  for  the  reason  that  if 
those  through  whom  the  functions  of  the  government 
are  performed  failed  to  do  their  duty,  the  government 
itself  would  come  to  naught.  Hence,  the  intent  need  not 
be  will  Fill  Of  malicious.^  I^)ut  an  officer  who  purposely 
and  (M)i-i-uptly  does  a  thing  in  connection  with  his  offi- 
cial duties,  which  is  not  allowed  by  law,  or  does  such 
acts  as  do  not  come  within  the  exercise  of  a  reasonable 
discretion,  is  guilty  of  a  comnion  law  misdemeanor.  The 
name  of  this  offense  is  ''nialfcasancej' 

2— state  V.  Lewis,  T.»   Kmiih.  200.  3—2  Hi.sh.  976;   4  Hlack.   111. 


Prison  Breach,  Escape  and  Rescue  627 

§  679.  Prisoner  escaping".  A  prisoner  who  voluntarily 
and  without  force  escapes  from  an  officer,  or  his  place 
of  confinement,  was  indictable  at  common  law,  and  the 
punishment  was  by  fine  and  imprisonment.*  Prison 
breach  and  rescue  is  a  common  law  felony,  where  the 
prisoner  was  convicted  as  a  felon.  And  it  also  seems 
to  have  been  the  law,  that  if  the  prisoner  was  convicted 
of  a  misdemeanor,  then  in  that  case  the  person  who 
aided  the  escape  was  guilty  of  a  misdemeanor.  These 
crimes  are  surrounded  by  very  great  obscurity,  and  a 
very  few  cases  can  be  found  that  will  throw  any  great 
light  upon  the  subject.  The  offenses  seem  to  be  defined 
separately,  thus:  prison  breach  is  where  one,  being  a 
prisoner  confined  in  prison,  breaks  the  walls  or  bars  of 
his  prison  and  makes  his  escape.  Rescue  appears  to 
be  that  where  the  prisoner's  escape  is  effected  by  a  third 
person  by  fOrce.  This  was  a  treason,  a  felony  or  a  mis- 
demeanor, according  to  the  charge  against  the  prisoner.^ 

§  680.  DefendaJit  may  break,  when.  The  defendant 
may  in  the  proper  case  break  and  escape  from  prison 
without  incurring  the  penalty  of  the  law;  as  where  it  is 
necessary  to  preserve  life,  or  free  himself  from  infec- 
tious diseases.  But  it  was  held  in  one  case,  that  an 
escape  for  the  purpose  of  avoiding  and  on  account  of 
uncleanliness,  filth  and  vermin,  was  no  justification  in 
the  absence  of  an  application  to  the  sheriff,  to  clean  the 
jail.« 

§  681.  Prisoner  must  be  held  by  a  legal  warrant  to 
arrest.  One  charged  and  arrested  for  crime  must  be 
held  by  virtue  of  a  legal  and  valid  warrant  of  arrest. 
If  an  officer  arrests  another,  and  confines  him  without 
proper  legal  authority,  he  has  no  right  over  the  personal 
liberty  of  the  defendant,  and  the  defendant  not  only  has 

4—4  Black.  130 ;  4  Black.  131.  6 — State  v.  Davis,  14  Neb.  439. 

5 — State  V.  Lewis,  19  Kans.   266. 


628  Criminal  Law 

the  right  of  escape  from  such  confinement  by  peaceable 
means,  but  may,  in  the  exercise  of  legal  self-defense,  free 
himself  by  any  force  found  necessary  to  accomplish  his 
freedom^ 

NEGLIGENT  ESCAPE 

§  682.  When  may  a  prisoner  be  discharged.  Prisoners 
in  the  custody  of  the  law  legally  must  be  so  held  until 
properly  discharged  by  due  course  of  law.  In  another 
connection  we  have  briefly  discussed  the  liability  of  an 
officer,  or  other  persons,  who  were  the  legal  custodians 
of  a  prisoner.  It  is  the  duty  of  the  officer  to  securely 
hold  all  prisoners  and  cannot  be  heard  to  say  in  his  de- 
fense that  the  escape  occurred  without  his  knowledge  or 
consent.  It  appears,  that  at  the  common  law,  an  escape 
under  any  circumstances  other  than  that  of  an  act  of 
God,  or  some  calamity  over  which  the  jailor  could  have 
no  control,  would  constitute  the  negligent  escape.  It  was 
not  necessary  that  there  was  any  affinnative  acts  of 
negligence  on  the  part  of  the  jailor,  but  he  was  at  his 
peril  required  to  have  the  prisoners  safely  kept.  A 
negligent  escape,  as  the  same  is  generally  construed  in 
the  books,  means  any  escape  of  a  prisoner,  who  is  imme- 
diately pursued  and  captured.  Keepers  of  prisoners  are 
not  permitted  to  defend  an  escape  on  the  ground  that  the 
prison  house  is  defective,  which  thereby  facilitate  the 
escape  of  the  prisoners.^ 

7 — In   the   case    of   the    State    v.  necessary  to  effect  his  object.     This 

Leach,  7   Conn.   452,  the  court  .snys  imprisonment    is    confessed    to   have 

in  part:   "The  act  of  the  prisoner  been  illegal.     Hence  it  results  that 

was  so  far  from  being  a  high  crime  the  kei-per  of  the  jail,  is  vested  with 

and  misdemeanor  that  it  was  justi-  no  authority;  the  l)uikliiig  in  which 

fiable;  and  here  it  is  not  intended  to  tlie   prisoner   was   confined   is   not   a 

suggest   that   a   prisoner   might   not  jail,  but  as  to  liim,  a  mere  private 

do   acts,   which   would   be   unjustifi-  tiuilding,  and  hence,  he  might  ri-gain 

able,  in  order  to  escape  from  unlaw-  that  lil>crty  of  wliich  he  wns  unjustly 

ful    imprisonment.      He    might    not,  deprived.'' 

for   example,   kill   the   jailor,  or  set  8 — If   sheriffs   were   pcrmitlod    to 

the  prison  on  fire,  or  t<it:i]ly  domolisli  be  excused    for  escapes   on   tlie  ])lea 

it;    for  the  acts   niiglit    not    be  iit    ;ill  (if  (Icfcct  ivc  jiiils,  it   would   be  ecpiiv- 


I 


Prison  Breach,  Escape  and  Rescue  629 

voluntary  escapes 
§683.  Same,  defined.  A  voluntary  escape,  is  where 
an  officer  having  the  custody  of  a  prisoner  charged  with 
crime,  knowingly  and  willingly  grants  him  his  liberty. 
*'A  negligent  escape  as  contradistinguished  from  a  vol- 
untary escape,  is  where  the  party  arrested  or  imprisoned, 
escapes  against  the  will  of  him  in  whose  custody  or 
prison  he  is  lawfully  detained,  and  is  not  taken  before 
he  is  lost  sight  of."  It  is  voluntary  escape  to  allow 
the  prisoner  to  go  at  large  upon  his  promise  to  appear, 
although  he  fulfills  his  promise.  It  appears,  that  if  the 
custodian  acts  in  good  faith,  believing  that  he  is  acting 
as  the  law  authorizes,  this  may  be  pleaded  as  a  justifi- 
cation.^ 

§  684.  Resisting  the  service  of  legal  process.  Purpose- 
ly and  willfully  resisting  the  service  of  legal  process  is 
an  indictable  offense  at  common  law.  It  is  known  as 
an  offense  against  justice  and  the  due  administration 
of  government  for  the  reason  that  the  courts  could  not 
carry  out  the  purposes  for  which  they  are  created  unless 
the  power  was  given  somewhere  to  enforce  the  obedience 
to  its  process.  It  is  an  indictable  crime  with  us.  The 
crime  is  very  reprehensible  for  the  reason  that  a  resis- 
tance of  the  process  of  the  court,  and  of  the  officers  of 

alent  to  a  judicial  or  legislative  re-  the  rule  had,  from  the  very  earliest 

lease,   of   all   responsibility,   for   the  time,   in  England,  in  both  criminal 

safety  of  prisoners,  especially  in  the  and  civil  causes,  been,  that  the  sher- 

present  condition  of  our  society,  to  iff  could  not  excuse  himself,  for  an 

ensure  escapes,  it  Avould  only  be  nee-  escape,   except   where    the   same    re- 

essary  for  the  sheriff  and  jailor  to  suited  from  an  act  of  God  or  public 

retire  to  rest  and  sleep  at  night.    If,  enemy.     It  also  announces  the  fact 

in  the  morning  their  prisoners  were  that  no  Other  case  in  the  American 

found  to  be  gone,  they  would  only  reported  cases  could  be  found  involv- 

have  to  plead  a  defective  jail,  and  ing  this  question. "    State  v.  Hunter, 

thus  would  society  be  at  the  mercy  94  N.  C.  829. 

of    criminals,    irresponsible    officials,  9 — Merhan  v.   State,  46  N.  J.  L. 

and   disorderly  persons.      The   court  355;   Ex  parte  Eittenhouse,  4  N.  J. 

announced  also  in  this  opinion  that  L.  230. 


630  Ceiminal,  Law 

the  government,  prevent  or  tends  to  prevent  the  due 
administration  of  the  laws  and  thwarts  the  ends  of  jus- 
tice. This  is  a  misdemeanor,  and  was  punished  by  fine 
and  imprisonment."  An  officer  has  the  right  to  use  force 
in  the  execution  of  the  writ  and  process  placed  in  his 
hands  to  execute.  The  force,  however,  must  be  only  com- 
mensurate with  the  needs  of  the  case,  otherwise  the  ofii- 
cer  will  be  a  trespasser. 

10 — Lawson's  Case  simplified,  page       ci\-il   process   would    have   the   right 
101.      The    circumstances   would   be       to  use  force  in  serving  it. 
very  grave  where  an  officer  serving 


CHAPTER  XLII 

RAPE 

§  685.  Definition.  §  690.  Assault    to     rape    under    the 

§  686.  The  character  of  force  neces-  statutory  age. 

sary.  §  691.  Assault  may  be  committed  by 

§  686a.  Aijplication   of   the    doctrine  husband   upon  wife,   when, 

of  force.  §  692.  Boy   under   age   of   fourteen 

§  687.  Consent,    resistance,    the    ex-  may  commit  assault. 

tent   thereof.  §  692a.  At     common     law     emission 

§  688.  By  whom  committed.  and   penetration   necessary. 

§  689.  Of  the  force  necessary  to  as- 
sault to  rape. 

§  685.  Rape,  definition  of.  Mr.  Wharton  defines  rape 
as  follows :  ' '  Rape  is  the  act  of  a  man  having  unlawful, 
carnal  intercourse  or  carnal  knowledge  of  a  woman  with- 
out her  conscious  and  voluntary  permission."  Mr. 
Greenleaf  in  his  work  on  evidence :  ' '  Rape  is  the  unlaw- 
ful carnal  knowledge  of  a  woman  by  force  and  against 
her  will."  ^  Mr.  Harris  in  his  criminal  work  defines  the 
offense  to  be  the  ' '  carnal  knowledge  of  a  woman  against 
her  will."  Sir  Wm.  Blackstone:  "Rape  is  the  carnal 
knowledge  of  a  woman  forcibly  and  against  her  will. ' '  ^ 
Lord  Hale :  * '  Rape  is  the  carnal  knowledge  of  any  woman 
above  the  age  of  ten  years  against  her  will,  and  of  a 
woman  child  under  the  age  of  ten  years,  with  or  against 
her  will."  This  offense,  by  the  ancient  common  law, 
was  punished  by  the  infliction  of  death.  Other  defini- 
tions are:  ''Rape  is  the  unlawful  carnal  knowledge  of 
a  woman  by  force  and  against  her  will."  "It  seems, 
therefore,  that  rape  is  an  offense  in  having  unlawful  and 
carnal  knowledge  of  a  woman  by  force  and  against  her 

1—3    Greenl.    on   Ev.    209.  2—4  Bla.  210. 

631 


632  Criminal  Law 

will.  "^  "Kapc  has  been  defined  to  be  the  having  un- 
lawful and  carnal  knowledge  of  a  woman  by  force  and 
against  her  will."  * 

§  686.  The  chajacter  of  force  necessary  to  constitute 
the  crime.  The  burden  of  this  crime  consists  in  the  sense 
of  shame,  degradation  and  humiliation  consequent  upon 
the  act,  and  the  forceful  violation  of  the  person  and  the 
insult  to  virtue.  Anciently,  the  idea  prevailed,  that  rape 
could  not  be  committed  by  any  other  means  than  force, 
or  threats  of  physical  violence.  A  general  American 
definition  of  rape  may  be  ventured  ''as  the  unlawful 
carnal  knowledge  of  a  woman,  without  her  consent,  ac- 
complished by  force,  threats  or  fraud.  At  the  common 
law,  in  certain  instances,  rape  could  not  be  committed 
where  the  female  gave  her  free  and  voluntary  consent 
to  the  act  of  intercourse  where  her  consent  was  obtained 
by  ti'ick,  subterfuge  or  fraud.^  Such  as  where  one  rep- 
resents himself  to  be  the  husband  of  the  female  under 
such  circumstances  as  deceives  her  as  to  that  fact,  and 
obtains  her  consent  to  an  act  of  intercourse.  An  in- 
dictment for  rape  chai'ging  force,  proof  is  admissible  to 
show  that  the  unlawful  intercourse  committed  upon  a 
woman  was  under  some  trick,  or  fraud,  which  caused 
her  to  give  consent  to  the  act,  believing  that  tlie  defend- 
.iiil  was  her  husl)an(l.*^  Bnt  we  believe  that  the  weight 
<»f  the  .-nithoTities  are  lo  the  effect  that  an  act  of  carnal 
inlci-coiiisc  iiidnccd  l)y  Ihc  tVaud  of  the  defendant,  who 
p('i"S()ii;i1('S  Ihc  husband,  is  ikiI  Ihe  force  necessary  to 
constilntc  the  ofrcnsc^     P.nt  where  the  act  of  inlerconrse 

3  —  1   Hawks.  J',  r.    lijl  !•;   (.iiiro  v.  .'.—:{  (Jroriil.  Kv.  Lill. 

Statp,    119   Ga.   418,   46   R.    E.    671,  G— Payne  v.   State.  .^S   Tex.   App. 

100  A.  S.  K.  182;  Crosswoll  v.  State,  494,  70  Am.  St.  Rep.  760,  40  S.  W. 

i:i    Midi.    427,    87    Am.    Dec.    774;  604,  76   A.   S.   "R.   712. 

State  V.  Tuttlo,  67  Ohio  St.  440,  6(i  7-  Lewis  v.  St:it.'.  lid   Al;i.  M,  OS 

N.  E.  524,  93  A.  S.  U.  689;  State  v.  Am.  Dec.   Hit;   I'mviu-  v.  Sl.-itr,  citci 

LiiiiK,  21    Ncv.  209,  28  Pnc.  235,  37  alicne.     Stale  v.   Miirplic.v.  luild   Hiat 

.\.    S.    !{.    505.  con.seTit  oht.'iiiied    liy   jn'isoiiat  ion   of 

4  1    l.'nss.  (Ill  <'r.,  '.',   Ivl.  675.  tlie  Inisbaml   i.H  rape.     See  following 


Rape  633 

is  committotl  upon  a  woman  insensible  from  the  effects 
of  intoxicating  li(iuor  o-ivon  her  by  the  defendant,  or 
where  she  is  in  that  condition  not  by  the  act  of  the  de- 
fendant,^ or  where  she  is  in  such  deep  sleep  as  to  be  un- 
conscious of  the  act;  or  where  her  powers  of  resistance 
have  been  overcome  by  chloroform,  or  other  drugs  of 
like  character,  such  as  ether,  force  is  implied.^  One  court 
has  said:  "It  is  true  that  the  element  of  force  need  not 
be  actual,  but  may  be  constructive  or  implied.  If  the 
woman  is  mentally  unconscious  from  drink  or  sleep,  or 
from  other  cause  is  in  a  state  of  stupefaction,  so  that 
the  act  of  the  unlawful  carnal  knowledge  on  the  part  of 
the  man  was  committed  without  her  conscious  and  vol- 
untary permission,  the  idea  of  force  is  necessarily  in- 
volved in  the  wrongful  act  itself — the  act  of  penetration. 
But  even  in  cases  of  this  kind  the  intent  to  use  force, 
if  necessary  to  accomplish  the  offense,  is  essential  to 
criminality."  Whether  intercourse  with  non-resisting 
or  non-consenting  idiotic  or  insane  woman  is  rape  de- 
pends upon  her  capacity  and  the  nature  of  the  act.^** 
Fraud,  as  by  personating  the  woman 's  husband ;  or  where 
she  consents  to  the  act  under  the  belief,  fraudulently 
induced  by  the  defendant,  that  it  is  necessary  medical 
treatment,  does  not  supply  the  want  of  force." 

§  686a.  In  the  application  of  the  doctrine  of  force.  Some 
question  may  be  found  in  the  authorities  to  the  etfect 
that  if  the  act  of  copulation  took  place  while  the  woman 

cases:    Eex    v.    Clark,    6    Cox    C.    C.  10— State   v.   Lung,   21   Nev.   209, 

413;   Eeg  v.  Barrow,   11   Cox  C.   C.  37  Am.  St.  Eep.  505,  28  P.  235,  37 

191;   Eeg  v.  Williams,  8  Cox  C.  C.  A.  S.  E.  505;  McQuirk  v.  State,  84 

223;     Wyatt     v.     State,     2     Swan.  Ala.  435,  5  Am.  St.  Eep.  381,  4  So. 

(Tenn.)   394.  775,  5  A.  S.  E.  381. 

8— Com.  V.  Burke,  105  Mass.  376,  11— State  v.  Lung,  21  Nev.  209,  37 

7   Am.   Eep.   531.  Am.   St.   Eep.   506,  28   P.   235;   Don 

9— Payne  v.  State,  40  Tex.  App.  Moran  v.  People,  25  Mich.  12,  Am. 

202,  76  A.  S.  E.  712,  49  S.  W.  694;  Eep.    283;     People    v.    Coswell,    13 

Lewis  V.  State,  30  Ala.  54,  68  Am.  Mich.  433,  87  Am.  Dec.  774;  Eegina 

Dec.  113.  V.  Barrett,  12  Cox  C.  C.  498. 


634  Criminal  Law 

was  asleep,  that  such  act  of  copulation,  standing  alone, 
did  not  present  a  sufficient  amount  of  force  to  consti- 
tute the  crime  of  rape  by  force.  There  appears  to  be  a 
great  want  of  harmony  in  the  authorities,  but  in  the 
case  of  Payne  'v.  State,  a  case  from  the  state  of  Texas, 
the  court  in  discussing  this  phase  of  the  case  says:  "The 
second  position  urged  by  the  state  is  that,  the  woman 
being  asleep  when  penetrated,  rape  is  the  result,  though 
no  greater  force  is  used  than  that  involved  in  the  act. 
We  have  given  this  proposition  thorough  investigation. 
Our  researches  leads  us  to  this  conclusion:  if  the  statute 
defines  rape  to  be  carnal  knowledge  of  a  woman  by  force 
and  'without'  her  consent,  then  the  proposition  above 
stated  is  correct.  If,  on  the  other  hand,  the  statute  de- 
fines rape  to  be  the  carnal  knowledge  of  a  woman  by 
force,  and  'against'  her  consent,  then  the  proposition 
is  not  correct.  We  are  not  inclined  to  make  the  dis- 
tinction between  the  terms  'without  consent'  and 
'against  consent,'  because  we  believe  there  is  really,  in 
effect,  no  difference  between  the  expressions.  If  the 
female  is  asleep,  of  course,  she  cannot  give  her  consent, 
but  if  she  is  willing  to  the  act,  there  is  tacit  consent,  and 
there  need  not  be  express  consent;  so  that  in  the  final 
analysis  the  act  must  be  against  her  will  and  consent, 
and  the  force  used  is  only  such  force  as  may  be  used 
ill  tlio  act  of  copulation."  ^'^  From  our  investigation  of 
the  authorities,  we  believe  the  view  of  the  court  in  this 
case,  i)resents  the  correct  analysis  of  the  authorities,  at 
least  is  in  accordance  with  the  highest  dictates  of  jus- 
tice." 

§  687.  Consent  and  the  resistance,  the  extent  thereof. 
The  act  of  intercourse  iiiust  be  without   tiie  consent  .•iiid 

12 — Payne  v.  Stato,  40  Tox.  Apj).  Ill— Sep  I'ollowiiijr  cases:     Com.  v. 

202,  76  Am.  St.  Rep.  713,  28  P.  235,  Biirko,    105    Mass.    :\7(];     K'-K'na    v. 

37  A.  R.  R.  SO.');  Lewis  v.  State,  30  Young,    14   Cox   C.    C.    114;    Kex    v. 

Ala.   .'4,  i]H   Am.   Dec.    \^'^.  Mayers,    12   Cox   C.   C.   311;   People 


Rape  635 

against  the  will  of  the  woman  in  order  to  constitute  the 
crime  of  rape.  As  we  have  seen  in  the  preceding  pages, 
that  if  the  female  is  in  such  a  condition,  mentally,  that 
she  cannot  give  rational  consent  and  acquiescence  to 
the  act,  then  there  is  no  consent,  and  the  act  of  inter- 
course would  be  against  her  will;  as  where  she  is  so 
soundly  asleep,  or  in  a  state  of  stupefaction  produced 
by  the  act  of  the  defendant,  or  known  by  him  to  exist 
at  the  time  of  the  act.  So,  a  consent  induced  by  such 
an  array  of  force  as  to  overcome  the  resistance  of  the 
woman,  taking  into  consideration  the  conditions  and 
the  relative  strength  of  the  female  and  the  ravisher,  is 
not  consent.^*  There  must  be  a  consent  in  good  faith, 
free  from  any  compulsion.  We  do  not  believe  that  the 
law  is  that  a  woman  should  resist  to  her  utmost  physi- 
cal ability;  when  the  circumstances  are  such  as  to  ap- 
peal to  her  reason  that  if  she  resists  further  that  she 
will  suffer  some  serious  bodily  harm,  then  her  yielding 
to  the  act  is  not  a  consent.  The  consent  must  not  be 
controlled  or  dominated  by  fear.  ''A  consent  obtained 
by  a  fear  of  bodily  hami,  or  personal  violence,  is  no 
consent;  and,  though  a  man  lay  no  hands  on  a  woman, 
yet,  if  by  an  array  of  physical  force,  he  so  overpowers 
her  mind  that  she  dares  not  resist,  he  is  guilty  of  rape 
by  having  the  unlaw^ful  intercourse."  When  the  propo- 
sition is,  that  the  crime  was  accomplished  by  force  or 
threats,  the  threats  employed  must  be  such  as  might 
create  a  just  fear  of  death  or  of  serious  bodily  harm, 
taking  into  consideration  the  relative  strength  of  the 
parties,  the  condition  of  health,  and  other  circumstances 
of  the  case,  showing  the  mind  of  the  female.  But  where 
force  is  used,  it  appears  that  it  is  not  essential  to  con- 
stitute the  crime,  to  show  that  the  female  had  a  reason- 

V.  Griffin,   117   Cal.   583,  49   P.   711,  39   Fla.   155,  63   Am.   St.  Rep.  159; 

59  A.  S.  E.   216.  Eice  v.  State,  35  Fla.  236,  48  Am. 

14— Bailey  v.   Com.,   82  Va.   107,  St.   Eep.    245;    Whittaker   v.    State. 

4  Am.  St.  Rep.  88;  Boyle  v.  State,  50  Wis.  518,  36  Am.  Eep.  856. 


636  Criminal  Law 

able  apprehension  of  death  or  serious  bodily  harm  if 
she  did  not  yield;  it  must  appear  to  her,  that  if  she  had 
not  yielded,  that  he  would  have  accomplished  his  pur- 
pose regardless  of  her  resistance.  It  is  not  required  of 
the  woman  that  she  use  all  power  of  resistance  at  her 
command;  it  is  sufiicient  that  she  resisted  as  long  as 
under  the  circumstances  she  believed  her  personal  safety 
would  permit. ^^ 

§  688.  By  whom  can  the  crime  of  rape  be  committed. 

The  husband  has  the  legal  right  to  the  enjoyments  in- 
cident to  the  marriage  relation,  and  for  this  reason  is 
incapable  of  committing  the  crime  of  rape  upon  his  own 
wife  in  person.^®  He,  however,  may  be  convicted  as 
principal  in  standing  by,  aiding  and  abetting  another 
in  the  crime  upon  her.  Thus,  where  the  husband  stood 
by,  and  refused  to  aid  the  wife,  while  another  raped 
her,  whom  he  had  employed  to  seduce  her  for  the  pur- 
pose of  securing  evidence  to  support  a  decree  of  divorce, 
it  was  held  that  he  was  guilty  of  rape."  So,  also,  a 
woman  herself  is  incapable  of  committing  the  crime, 
yet  it  has  been  held  that  she  may  be  convicted  as  a 
princi})al  in  the  second  doi^ree.  So,  also,  for  the  same 
reason,  a  male  person  under  the  age  of  fourteen  years 
of  age,  where  it  is  shown  that  he  possesses  a  mischievous 
understanding,  may  be  convicted  as  principal  in  the  sec- 
ond degree. ^^  At  tlie  common  hiw  a  boy  under  the  age 
of  fourteen  yoars  of  age  was  iiicai)al)l('  of  connnitting 
the  Clinic  of  rape,  because  he  was  conclusively  presumed 
to   be   |)liysi('ally   iii('a])abh'  of  consunnnating  the   act.^® 

15— HaKcriii.-in    v.    State.    47     la.  .Midi.   2H0,  4    Am.   St.    \iv\\   H57,   28 

151;    Ban»    v.    State,    15    Tex.    App.  N.  W.  80G. 

62;  Fitzlicrald  v.  State,  20  Tex.  App.  18— Law   v.  Com.,  7;"i   Va.  88."),  40 

280.  Am.   Hep.   750. 

16— State    V.    Dowrll,     100    X.    <\  19— Stevens  v.  State,   11    (ia.  22.1 ; 

570,  11  S.  E.  525.  State  v.  PiikIi,  7  .Jones   (N.  ('.)   61; 

17_Notc  Sniitli   v.  State,  80  Am.  Williams  v.  State,   14  Ohio  St.  4()() ; 

Dec.    36.3;    People    v.    Chapman,    02  Cow.    v.    Crccn,   2    Pick.    .■?8(l;    State 


Rape  637 

This  rule,  at  the  common  law,  appears  to  have  been 
arbitrary,  and  never  was  relaxed.  It  was  founded  upon 
the  universal  experience  of  the  peoples  who  formed  and 
constituted  the  system  of  ''common  law,"  that  male  per- 
sons under  the  age  of  fourteen  years  of  age,  were  physi- 
cally incapable  of  propagating  his  kind.  Scientifically, 
it  appears,  that  the  power  of  male  persons  to  reproduce 
his  kind  is  dependent  upon  climatic  conditions,  and  that 
of  the  peculiarity  of  the  race,  to  some  extent  at  least, 
to  which  he  may  belong.  That  the  age  of  puberty  is 
higher  or  lower,  accordingly,  as  we  proceed  toward  the 
tropics,  or  the  colder  latitudes.  Upon  these  considera- 
tions some  of  the  states  of  the  Union  depart  from  the 
rule  of  the  common  law,  holding  that  the  presumption 
may  be  rebutted  by  proof  of  capacity  or  existing 
puberty.^"  The  rule  in  one  of  the  states  is,  that  the  com- 
mon law  rule  has  no  application  whatever.  In  those 
states  where  the  common  law  rule  is  adhered  to,  a  male 
person  under  the  age  of  fourteen  is  conclusively  pre- 
sumed to  be  incapable  of  committing  an  attempt  to  com- 
mit rape.  Some  others,  that  it  is  incumbent  upon  the 
prosecution  to  prove  the  capacity  of  the  defendant  to 
commit  rape,  to  authorize  the  conviction  for  the  assault 
or  the  attempt.  Generally,  we  believe  the  application  of 
the  rule  of  the  common  law  in  the  states  of  the  Union, 
is  in  keeping  with  our  conditions,  and  the  policy  of  our 
laws. 

ASSAULTS  WITH  INTENT   TO  COMMIT   RAPE   OR   ATTEMPTS   TO 

COMMIT  RAPE 

§  689.  Of  the  force  necessary  to  constitute  assault  to 
rape.  To  authorize  a  conviction  for  an  assault  w^ith 
intent  to  rape,  it  must  be  shown  that  the  intention  of 

V.  Cunningham,  100  Mo.  382;  Foster  4  Am.  St.  Rep.  207;  Gordon  v.  State, 

V.   Com.,    96    Va.    306,    70    Am.    St.  93  Ga.  531,  44  Am.  St.  Rep.  189,  21 

Rep.  846,  31  S.  E.  22.  S.  E.  54. 
20— Healman  v.  Com.,  84  Ky.  457, 


638  Criminal  Law 

the  defendant  was,  if  it  became  necessary,  to  force  com- 
pliance with  his  desires  at  all  events  and  regardless  of 
any  resistance  the  woman  might  offer.^^  The  force  used, 
or  attempted  to  be  used,  must  be  such  as  might  reason- 
ably be  supposed  sufficient  to  overcome  resistance,  tak- 
ing into  consideration  the  relative  strength,  the  age  of 
the  prosecutrix,  and  the  other  circumstances  surround- 
ing the  transaction.^^  In  some  of  the  states  the  offense 
is  constituted  by  showing  threatening  gestures,  or  by 
words  accompanying  them,  an  immediate  intention, 
coupled  with  the  ability  to  enforce  his  desires.^^  To 
constitute  this  crime  two  elements  are  essential.  The 
first  is,  that  there  must  be  an  intent  to  commit  the  crime 
of  rape,  and  the  second  is,  that  the  rape  shall  be  com- 
mitted by  force.  The  crime  of  rape  is  committed  in 
three  different  ways.  The  first  by  force.  The  second 
by  fraud.  The  third  by  threats.  The  first  and  the  third 
of  these  may  be  the  force  necessary  to  commit  the  crime 
of  rape,  and  it  may  be  that  the  fraud  in  some  instances 
may  also  be  the  force,  or  at  least  the  constructive  force 
necessary  to  constitute  the  crime.  As  a  distinction  be- 
tween an  '* assault  with  intent"  and  the  ''attempt"  to 
commit  rape  is,  that  in  the  former,  it  is  necessary  that 
the  element  of  assault  made  upon  the  person  of  the  fe- 
male be  present  with  the  intent  to  commit  the  crime 
of  rape,  while  in  the  latter,  it  is  not  necessaiy,  in  all 
cases,  that  there  should  be  the  force  or  the  assault.  As 
where  the  statute  provides,  that  rape  may  be  committed 
by  obtaining  the  consent  of  the  female  by  some  trick 
()!•  frnud,   llic  ;i11('iii))<   iiiiglit  be  effectual  without  any 

21— state  V.  Preston,  74  Mo.  24;  23— State   v.   Lung,   21   Nov.   209, 

Shiclfls  V.  State,  .32  Tex.  App.  498;  37  Am.  St.  I?op.  nn.") ;   See  Glovor  v. 

Saddler  v.  State,  12  Tex.  App.   194.  Com.,   86   Va.   382;    CunniiiRham   v. 

22— Jone,s  v.  State,   18  Tex.  App.  Com.,   88   Va.   37;    State   v.   Dalton. 

48.5;   Rurney  v.  State,  21  Tex.  App.  106  Mo.  463;   State  v.  Schoyer,  104 

565;   Miller  v.  State,  23   Tex.   App.  M<..  441,  24   Am.  St.   IJcp.  344. 
204;  Thomas  v.  State,  16  Tex.   App. 
535;    Iruin  v.  State,  9  Tex.  Apj..  66. 


Rape  639 

element  of  actual  force.  This  is  instanced  where  some 
stupefying  drug  is  administered,  or  where  the  accused 
obtains  consent  of  the  female  under  circumstances  which 
induces  her  to  believe  that  it  is  her  husband,  or  where 
the  crime  is  committed  while  the  female  is  asleep.  The 
attempt  to  commit  the  crime  is  complete,  when  the  ac- 
cused, with  the  intent  to  have  carnal  intercourse  of  a 
female  under  the  circumstances  provided  by  the  statute, 
does  any  act  which  it  would  be  necessaiy  to  do  in  ac- 
complishing his  purpose,  aside  from  acts  of  mere  prepa- 
ration. One  court  says,  that  an  attempt  to  commit  a 
crime  can  only  be  made  under  circumstances,  which, 
had  the  attempt  succeeded,  would  have  been  the  entire 
substantive  offense.  The  result  we  gather  from  these 
principles  is,  that  for  a  man  to  be  guilty  of  an  attempt 
to  commit  rape,  he  must  have  intended  to  have  used  the 
force  necessary  to  accomplish  his  purpose,  notwithstand- 
ing the  woman's  resistance,  or  in  the  case  of  the  con- 
structive force,  to  either  destroy  her  power  to  resist  him 
by  the  administration  of  liquor  or  drugs,  or  to  take  ad- 
vantage of  the  fact  that  she  was  already  mentally  or 
physically  unable  to  resist.  There  must  have  been  some 
act  done,  and  a  concurring  intent,  to  constitute  the 
attempt. 

§  690.  Assaults  to  rape  under  statutory  age.  There  is 
a  great  want  of  harmony  in  the  authorities  upon  the 
question  whether  an  assault  with  intent  to  rape  can  be 
perpetrated  upon  a  female  under  the  statutory  age  of 
consent.  One  line  of  the  American  authorities,  and  it 
appears  the  unanimous  holdings  of  the  English  courts, 
sustain  the  negative,  while  perhaps  the  weight  of  the 
American  authorities,  the  affirmative.  Wliere  a  statute 
defined  rape:  ''Rape  is  the  carnal  knowledge  of  a  woman, 
without  her  consent,  obtained  by  force,  threats,  or  fraud, 
etc.,  or  the  carnal  knowledge  of  a  female  under  the  age 
of  fifteen  yeai-.,  other  than  the  wife  of  the  person,  with 


640  Criminal  Law 

or  without  her  consent,  and  with  or  without  force, 
threats,  or  fraud."  The 'court,  after  a  very  elaborate 
discussion,  held,  that  the  female  consenting,  there  could 
not  be  an  assault  with  intent  to  rape — that  the  consent 
in  fact,  took  from  the  act,  the  essential  element  of  the 
assault,  and  that  such  consent  could  not  be  superseded 
by  the  lack  of  power  to  give  a  legal  consent.  Upon  the 
authority  of  this  case  the  clause  'Svith  or  without  con- 
sent" presupposes  that  the  female  could  give  consent 
in  fact  to  the  act,  notwithstanding  the  consummated 
crime — the  rape — is  committed  whether  she  give  her 
consent  or  not  to  the  act.  It  was  also  further  held,  that 
it  could  not  have  been  in  the  contemplation  of  the  legis- 
lature to  make  an  ineffectual  attempt  to  commit  the 
crime  of  rape,  with  the  actual  consent  of  the  female,  an 
assault.  It  is  also  upon  the  authority  of  this  case  that 
the  doctrine  is  advanced,  that  no  element  of  assault 
enters  into  an  ineffectual  attempt  or  endeavor  to  have 
carnal  intercourse  of  a  female  under  the  statutory  age  of 
consent,  when  she  consents  to  the  act — that  upon  the 
principles  of  the  common  law  an  assault  to  rape  cannot 
be  predicated  upon  the  consent  of  the  prosecutrix.  In 
other  words,  that  there  can  be  no  assault  with  intent 
to  rape  unless  there  is  force — that  in  order  that  such 
attempt  be  converted  into  a  crime,  the  legislature  is 
required  to  make  it  such.'^^  It  is  believed  that  most 
of  the  states  have  construed  similar  statutes  to  mean 
that  it  becomes  an  assault  with  intent  to  rape,  or  at 
least  an  attempt  to  rape,  where  the  female  gives  the  con- 
sent where  she  is  uiidci-  the  i)roliibited  age.^^  11  is  also 
licld,   i]\;\\    flic   accused   is   rc(|iiii'cd,   a1    his   ])('i'il,   to   as- 

24— Hardin    v.    State,    46    S.    W.  211,  4G  A.  S.  R.  234,  39  Tac.  (507; 

803.     This    case    is    very    extensive  State   v.   Shroyer,   24   A.   S.   R.   344, 

fliscuHsion  of  the  principles  involved.  104  Mo.  441;  State  v.  Neely,  21  Am. 

Warren  v.  State,  41   S.  W.  634.  Ifep.    496;    Com.    v.    Murphey,    165 

25— Rhodes  v."  State,  1   Cold.  350;  Ma,ss.  66,  52  A.  S.  R.  496,  42  N.  E. 

State  V.  IIoux,  109  Mo.  32,  A.  S.  R.  .^>04;    .Tnckson  v.   Sl.-ih',  M    A.   S.  R. 

686;  People  v.  Verdegreen,  106  Cal.  25,  91    Ga.  322. 


Rape  641 

certain  the  true  age  of  the  female  before  he  may  legally 
indulge  in  such  adventures — that  it  is  not  a  defense  that 
he  believed  her  to  be  beyond  the  prohibited  age.  The 
state  is  required,  however,  to  allege  and  prove  that  the 
act  was  committed  under  the  age  prohibited  by  the 
statute.26 

§  691.  The  assault  may  be  committed  by  the  husband 
upon  the  wife.  An  assault  with  intent  to  commit  rape 
may  be  committed  upon  the  wife  by  the  husband,  where 
by  force  he  compels  her  to  submit,  and  a  third  party 
to  attempt  to  commit  the  act  of  carnal  intercourse  with 
her.  There  is  some  doubt  whether  a  third  party  could 
justify  himself  for  the  attempted  forceful  intercourse, 
because  of  the  compulsion  of  the  husband.  Whether  one 
has  the  right  to  attempt  a  rape  or  carnal  intercourse 
upon  a  female,  where  he  is  compelled  to  do  so  through 
some  force  which  may  endanger  his  personal  safety,  has 
not  to  our  knowledge  been  authoritatively  decided,  al- 
though there  is  some  dicta  on  the  subject.^''  A  hus- 
band may  also  be  a  principal  to  the  rape  of  his  wife, 
where  he  stands  by  and  watches  her  violation,  and  ac- 
quiesces in  the  act  of  another  person.  At  the  common 
law  he  would  be  a  principal  in  the  second  degree.*^^  So, 
where  a  female  stands  by,  aids  or  assists  a  male  to  rape 
another  female,  she  is  for  a  like  reason  guilty  at  com- 
mon law  as  principal  of  the  second  degree.'^® 

§  692.  A  boy  under  the  age  of  fourteen  years  of  age 
may  commit  an  assault  to  rape.  This  was  not  permitted 
at  the  common  law.  The  reason  being  that  a  boy  of  that 
age  was  conclusively  presumed  incapable  of  committing 

26— state  v.  Houx,  209  Mo.  654,  280,  4  A.  S.  E.  857,  28  N.  W.  896, 

23  A.  S.  R.  686;  Com.  v.  Murphey,  68  Am.  Dec.  264;  Com.  v.  Fogerty, 

165  Mass.  66,  52  A.  S.  R.  496.  8  Gray  (Mass.)  489. 

27— State    v.    DoweU,    106    N.    C.  29— State  v.  Jones,  83  N.  C.  605, 

722,  19  A.  S.  R.  568,  11  S.  E.  525.  35  Am.  Rep.  586 ;  State  v.  Com.,  46 

28— People  v.  Chapman,  62  Mich.  la.    265. 
C.  L.— 41 


642  Criminajl  Law 

the  crime  of  rape,  because  of  the  physical  inability  of 
procreating  his  kind.  As  we  have  said  in  another  con- 
nection, the  male's  capacity  to  procreate  is  dependent 
upon  climatic  conditions,  many  of  the  courts  of  the  states 
have  held  that  the  presumption  is  rebuttable,  and  the 
state  may  show  this  power  or  ability  in  the  male  under 
fourteen  years.^° 

§  692a.  Necessary  at  the  common  law  to  prove  pene- 
tration and  emission.  It  was  an  essential  element  of  the 
crime  of  rape,  at  the  common  law,  to  show  both  the  pene- 
tration and  the  emission  of  the  male  organ  into  that  of 
the  female.^^  At  this  time  it  is  only  necessary  to  show 
that  there  was  some  penetration.  If  the  male  organ  is 
inserted  into  the  libia  of  the  female  organ  it  is  suffi- 
cient.^^ To  make  proof  of  the  penetration  the  testimony 
of  the  prosecutrix  may  be  relied  on  as  sufficient.  But 
where  the  defendant  denies  the  rape  the  prosecutrix'  tes- 
timony must  be  corroborated  by  the  circumstances.^^ 
Proof  of  particular  act  of  unchastity  is  not  admissible, 
except  with  defendant.  The  general  reputation  of  the  fe- 
male's  unchastity  may  be  put  in  evidence  for  the  purpose 
of  negativing  the  want  of  the  consent  to  the  act,  but 
not  for  the  purpose  of  justification  or  excuse  for  the  act. 

30— Heilman    v.    Com.     (Ky.),    4  1S7 ;  H.nrrison  v.  State,  70  Wis.  448, 

Am.  St.  Eep.  207;  Gordon  v.  State  36  N.  W.  1;  Bean  v.  People  (111.). 

(Ga.)   44.  16  N.  E.  656;   People  v.  Bates,  38 

31— Fitzgerald   v.   State,   20   Tex.  N.    W.    231;    Lynn    v.    Com.    (Ky.), 

App.  281.  13  S.  W.  74.     This  case  holds  that 

32 — Witten  v.  State,  15  S.  W.  871.  corroboration  is  not  necessary    Bur- 

33— Bodgera  v.  State,  1  Tex.  App.  nett  v.  State,  83  Ala.  40,  3  So.  612. 


CHAPTER  XLIII 

EOBBERY 

§  693.  Definition.  §  697.  Property    from    whom    taken. 

§  694.  Taking      property      from  a      §  698.  Value  and  the  amount  thereof. 

debtor.  §  699.  The    intent   must   be    fraudu- 

§  694a.  Nature  of  the  force.  lent. 

§  695.  Of  the  degree  of  fear.  §  700.  Proof. 
§  696.  Sodomy,   charge   of    sufficient       §  701.  Of  the   assault. 

fear. 

§  693.  Definition.  Robbery  is  the  felonious  taking  of 
property  from  the  person  of  another  by  force,  or  by 
putting  in  fear.^  The  offense  itself  contains  an  element 
of  assault  as  well  as  of  larceny.  To  constitute  it,  the 
property  must  be  actually  taken  into  the  possession  of 
the  robber.^  It  appears  that  the  extent  of  fear  is  meas- 
ured by  that  degree  of  force,  or  threatened  force,  to  pro- 
duce in  the  mind  a  reasonable  apprehension  of  physical 
injury,  sufficient  to  overcome  one's  will.^  The  taking- 
need  not  be  direct  from  the  person,  but  taking  the  goods 
in  the  presence  of  the  owner  is  sufficient.  What  would 
in  the  particular  case  constitute  the  crime  in  the  presence 
of  the  owner  must  be  governed  by  the  circumstances. 
If  the  conditions  are  such  as  to  indicate  a  direct  personal 
control,  the  construction  is  that  it  is  from  the  person. 

§  694.  Taking  property  from  a  debtor.  The  property 
of  which  robbery  is  committed,  must  be  other  than  the 
property  of  the  robber.    Therefore,  it  has  been  held,  that 

1—3  Coke  Inst.  68.  State   v.   Carr,   43   la.   418;    McCor- 

2— Coffit  V.   State,   27    Tex.  App.       mack  v.   State,   26  Tex.   App.  678; 

608.  Britt  v.  State,  7  Hump.   (Tenn.)  45. 

3— Long    V.    State,    12    Ga.  298; 

643 


644  Ceiminal  Law 

''the  owner  of  property  entitled  to  the  possession,  cannot 
be  g-nilty  of  robbery,  although  he  takes  it  from  another 
by  violence  and  by  putting  in  fear  of  life."  The  indict- 
ment must  allege  that  the  property  is  that  of  another 
person  than  the  defendant.*  So,  where  one  assaults  his 
debtor  for  the  puiiDOse  of  inducing  him  thereby  to  pay 
him,  although  he  use  violence  and  putting  in  fear,  is 
not  guilty  of  the  crime  if  the  debtor  parts  with  his  prop- 
erty to  pay  the  debt  in  consequence  of  the  assault.^ 

OF   THE  FOKCE 

§  694a.  Nature.  The  force  must  be  of  such  a  nature  as 
to  overcome  the  person  robbed  regardless  of  his  resis- 
tance—that is,  the  robber's  intention  must  be  to  over- 
come resistance  at  all  events.  The  violence  must  be  used 
before  and  at  the  time  of  the  robbery.  The  degTee  or 
extent  of  force  is  so  closely  allied  to  that  of  ''appre- 
hended force  producing  fear,"  that  it  is  rather  a  meta- 
physical deduction  to  draw  the  distinction.  "No  sudden 
taking  unawares  from  the  person,  even  done  with  force, 
as  by  snatching  a  thing  from  one's  hand,  or  out  of  his 
pocket,  is  sufficient  to  constitute  robbery."  But  where 
a  lady  came  out  of  a  theater  and  a  diamond  ring  was 
snatched  from  her  ear,  tearing  it,  but  the  robber  failing 
to  get  the  possession,  the  ring  having  fallen  in  her  hair, 
where  it  was  afterwards  found,  this  was  held  to  be  rob- 
bery by  force.  So,  where  a  watch  was  snatched  from 
the  person,  and  the  guard  was  thereby  broken  which  was 
around  the  neck  of  the  owner,  this  was  robbeiy.'  If 
there  is  resistance  it  is  robbery,  although  the  property 
nniy  be  acquired  by  stealth  or  sudden  jerk.  A  non-forc- 
ible theft  of  property  from  the  person  is  not  robbery, 

4_Smilcy  v.  State,  30  Tox.   App.  State   v.    IloUoway,    11    Ta.   200,    20 

314;  Brown  v.  State,  28  Ark.  128.  Am.  Hop.  586. 

5— Cbilds    V.    State,    Sup.    Court  8— State  v.  McCunc,  .1  R.  T.  fiO,  70 

1875;  Brown  v.  State,  28  Ark.  128;  Am.  Rop.  17Cn. 


Robbery  645 

except  in  the  instance  of  theft  accomplished  through  fear, 
which  is  within  itself  a  constructive  force.® 

OF  THE  FEAR 

§  695.  The  degree.  There  is  no  very  well  defined  rule 
as  to  the  degree  of  fear,  but  as  we  have  previously  re- 
marked, "the  degree  of  fear  is  measured  by  the  degree 
of  force  or  threatened  force  calculated  to  produce  in  the 
mind  a  reasonable  apprehension  of  physical  injury  suffi- 
cient to  overcome  one's  will.^°  Mr.  Harris  in  defining 
the  degree  of  fear  says;  "What  is  the  degree  of  fear  I 
On  the  one  hand,  the  fear  is  not  confined  to  the  appre- 
hension of  bodily  injury,  and  on  the  other,  it  must  be  of 
such  a  nature,  as  in  reason  and  common  experience  is 
likely  to  induce  a  person  to  part  with  his  property, 
against  his  will  and  to  put  him,  as  it  were,  under  a  tem- 
porary suspension  of  the  power  of  exercising  it  through 
the  influence  of  the  terror  impressed."  ^^  The  fear  need 
not  be  actual,  but  the  circumstances  must  be  of  such  a 
nature  as  to  create  an  implication  in  law — that  is,  '  *  if  the 
fact  be  laid  to  be  done  violently  and  against  the  will, 
actual  fear  need  not  be  proved,  at  the  trial,  because,  un- 
der such  circumstances,  the  law  will  presume  fear.^^  The 
fear,  then,  is  not  measured  in  any  wise  by  the  relative 
degree  of  personal  courage  or  cowardice.     The  fear  or 

9 — Breunon  v.  State,  25  Ind.  403 ;  when  there  appears  to  be  just  ground 

State  V.  John,  5  Jones  (N.  C.)  163.  for  it."    Long  v.  State,  12  Ga.  293; 

10 — "If    the    transaction    be    at-  see  12  Am.  &  Eng.  Encly.  of  Law, 

tended    with    such    circumstances   of  page  421,  note. 

terror,    such    threatening   by    words  11 — State    v.    Parson,    44    Wash, 

or   gestures,  as  common  experience,  299,  87  Pac.  349,  120  A.  S.  R.  1003. 

are  likely  to  create  an  apprehension  12 — State  v.  Lamb,  42  S.  W.  827; 

of  danger  and  to  induce  a  man  to  State  v.   Stinson,   124  Mo.   447,   27 

part     with     his     property    for    the  S.  W.    1098;    State  v.  Lawler,  130 

safety  of  his  person,  he  is  put  in  Mo.   366,   32   S.   W.   979;    Jones  v. 

fear.     Actual  fear  need  not  strictly  State,  48  Tex.  App.  363,  88  S.  W. 

and  precisely  proved,  for  the  law,  in  217,  122  A.  S.  R.  759,  13  Ann,  Cas. 

odium  spoliatiris,  will  presume  fear,  455,  1  L,   E,  A.    (N.  S.)    1024. 


646  Criminal  Law 

appreliension  is  not  confined  to  the  fear  or  apprehension 
that  violence  will  be  done  the  owner  or  the  person  in  the 
possession  of  the  property,  but  it  may  be  a  fear  that 
violence  may  be  inflicted  upon  another  person  under  the 
immediate  charge  of  the  owner  or  person  in  the  posses- 
sion. As  where  a  person  is  walking  with  his  wife  and 
child,  who  delivered  his  property  to  the  robber  upon  the 
threat,  that  unless  he  did  so,  he  would  kill  the  child. 

§  696.  Sodomy.  Another  instance  of  putting  in  fear, 
gathered  from  the  authorities,  is  where  one  is  induced 
to  part  with  his  propertj^  by  a  threat  from  another  to 
prosecute  him  for  the  crime  of  sodomy,  or  the  crime 
against  nature.  The  character  of  fear,  in  this  instance, 
is  the  apprehension  that  one's  character  or  reputation 
will  thereby  suffer.  This,  also,  seems  to  be  sustained 
by  some  American  authority.^*  In  no  other  case,  is  a 
fear  that  one's  character  or  reputation  will  be  damaged 
by  a  threat  to  prosecute  for  an  alleged  crime  is  suffi- 
cient to  constitute  the  fear  contemplated  by  the  law. 
Why  this  particular  charge  is  sufficient  to  create  a  fear, 
to  constitute  robbery,  docs  not  veiy  clearly  appear.  But 
we  are  lead  to  suppose,  that  the  crime  being  one  of  a 
nature  so  vile  and  degrading,  that  one  would  readily 
part  with  his  property  tlirough  the  tlircnt  that  he  would 
be  so  charged. 

AS   TO   THE   TAKING    AND   CARRYING   AWAY 

§  697.  From  whom  taken.  Tliis,  like  larceny,  the  prop- 
erty must  be  taken  from  the  possession  of  the  owner 
or  the  person  in  control,  and  into  the  manual  posses- 
sion of  the  robber.  It  must  be  taken  from  his  person  or 
from  liis  immediate  presence  under  such  circumstances 
as  indicate  and  establish  manual  possession.     This  of- 

14— Long   V.    state,    12   Ga.   298; 
Britt  V.  State,  7  Hump.  45. 


]iOBBEEY  647 

fense  consists  of  the  elements  of  two  crimes,  larceny  and 
assault,  and  it  cannot  be  committed  when  either  one  or 
the  other  is  absent.  If  the  property  is  taken  from  the 
person,  and  immediately  thereafter  the  robber  loses  con- 
trol of  the  same,  it  then  is  nevertheless  robbery;  but  if 
the  same  is  not  taken  from  the  owner,  and  carried  from 
his  possession,  it  is  not  robbery.^^ 

OF  THE  VALUE 

§  698.  Extent  of.  To  assault  another  for  the  purpose  of 
taking  from  him  a  thing  of  no  value,  would  not  be  rob- 
bery, for  the  assault  must  be  for  the  purpose  of  acquiring 
something  of  value. ^®  However,  it  is  necessary  to  show 
that  it  was  of  some  value,  although  it  was  slight.  If,  how- 
ever, the  assault  was  made  with  intent  to  rob,  or  take 
property  from  the  person,  and  the  robber  was  mistaken 
as  to  the  property  and  there  was  none,  he  would  in  this 
instance  be  guilty  of  an  assault  to  rob. 

OF  THE  INTENT 

§  699.  Must  be  fraudulent.  The  intent  must  be  to  take 
the  property  with  the  fraudulent  purpose  of  acquiring 
an  interest  in  the  same  and  to  deprive  the  owner  of  it. 
It  must  be  a  taking,  animus  furandi,  and  so  if  the 
assault  is  made  for  any  other  purpose,  it  is  not  robbery.^'' 
The  intent  must  exist  before  the  assault  for  an  intent 
to  take  the  property  after  the  assault  is  complete,  and 
the  taking  follow,  it  would  be  simple  larceny.  So,  then, 
the  intent  must  not  only  be  to  steal  the  property,  but 

15— Adams  v.  Com.,  153  Ky.  88,  10    Tex.   App.   8;    Wesley  v.    State, 

154  S.  W.  381,  44  L.  E,  S.   (N.  S.)  61   Ala.   282;    Jackson  v.   State,   69 

637 ;  McAllister  65  W.  Va.  97,  63  S.  Ala.   249 ;    Contra,  State   v.   Perley, 

E.  758,  131  A.  S.  E.  955;   see  note  86  Me.  427,  30  Atl.  74,  41  A.  S.  E. 

131  A.  S.  E.  955;  People  v.  Camp-  564;   Ward  v.   State,  35   Tex.   App. 

bell,  231  111.  391,  84  N.  E.  1035,  123  170,  60  A.  S.  E.  31. 

A.  S.  E.  107,  14  Ann.  Cas.  186.  17— Garrity  v.   State,   70   111.   83 ; 

16— Arnold  v.  State,  52  Ind.  281,  Hope  v.   People,  38   Am.   Eep.  460, 

21  Am.  Eep.  175;  Williams  v.  State,  83  N.  Y.  418. 


648  Criminal  Law 

must  be  to  tal^e  it  by  force  or  fear.^^  That  is,  the  in- 
tent must  exist  before  the  assault  is  made,  creating  the 
opportunity  for  the  larceny,  by  putting  in  fear  of  bodily 
harm,  or  by  actual  force.  No  repentance  on  the  part  of 
the  robber,  coupled  with  an  offer  to  restore  the  property, 
will  relieve  the  act  of  its  felonious  character,  and  in 
this  respect  it  is  different  from  embezzlement,  in  which 
crime  the  accused  is  permitted  to  show  that  he  offered 
to  restore  the  property  embezzled,  for  the  purpose  of 
mitigating  the  offense. 

§  700.  Of  the  proof.  It  is  necessary  to  allege  and 
prove,  in  addition  to  the  elements  of  larceny,  that  the 
property  was  taken  from  the  person,  or  from  the  imme- 
diate presence  of  the  party  robbed,  with  force  or  fear 
and  against  the  will  of  the  party  robbed.^^  It  appears 
that  it  is  not  necessary  to  allege  any  particular  value 
of  the  property,  but  the  proof  must  show  that  the  prop- 
erty has  some  value,  although  a  very  small  value  will 
be  sufficient,  unless  it  becomes  necessary  in  order  to 
comply  with  the  direction  of  a  statute;  as  where  there 
are  degrees  of  the  crime,  dependent  upon  the  value  of 
the  property.^"  It  is  also  necessary  to  allege  and  to 
prove  the  name  of  the  person  robbed;  and  it  is  also 
necessary  to  prove  the  property  actually  passed  to  the 
possession  of  the  accused.  If  it  passes  to  his  possession, 
then  this  is  within  itself,  sufficient  taking  and  carrying 
away,  and  in  legal  parlance,  corresponds  to  the  term 
"aspotavit,"  "appropriation,"  "conversion"  and  the 
like,  used  in  tlie  books.  The  taking  of  the  property 
without  detaching  it  from  the  person  is  not  sufficient 

18— Shinn  v.  State,  31   Am.  Rep.  5G  la,  595,  9  N.  W.  91G;   .Tames  v. 

110,  64   Iiul.   18;    Hanson  v.   State,  State,  53  Ala.  380. 
43   Ol.io  St.   37G.  20— Com.   v.   White,   133    Pa.    St. 

]9__St('agar  v.  State,  99  Am.  Dec.  1H2,  19  Atl.  350;  Kex.  v.  Morris  (C. 

472,  39  Ga.  503;  State  v.  Lcighton,  &  P.)  347. 


Robbery  649 

proof  to  constitute  the  taking  the  possession,  and  carry- 
ing away.^^ 

§  701.  Assault.  Generally  an  indictment  to  rob  carries 
with  it  the  power  to  convict  for  the  assault  to  rob,  if  the 
evidence  fails  to  establish  the  robbeiy.  But  a  convic- 
tion could  not  follow  upon  an  indictment  for  an  assault 
with  intent  to  rob,  for  the  simple  assault  only.  Likewise, 
a  conviction  for  an  attempt  to  steal  could  properly  fol- 
low, under  an  indictment  for  the  larceny.  The  general 
rule  is  that  upon  an  indictment  for  an  offense,  the  failure 
to  convict  for  the  substantive  crime  the  conviction  of 
the  attempt  may  follow,  as  the  allegation  of  the  requi- 
sites of  the  crime  intended  to  be  committed,  is  necessary, 
even  when  the  indictment  is  only  for  the  attempt.  The 
contrary  of  the  rule  is  also  true  that  upon  an  indictment 
for  the  attempt,  the  conviction  for  the  substantive  crime 
is  not  permitted.22  The  conviction  of  the  defendant 
upon  an  indictment  for  the  substantive  crime  is  a  com- 
plete bar  to  a  further  prosecution  for  the  attempt,  or  the 
substantive  offense,  but  if  indicted  in  the  first  instance 
for  the  attempt,  and  acquitted,  he  might  be  convicted 
for  the  substantive  offense  upon  an  indictment  for  that 
offense.^' 

21—1.   Hale    P.    C.    533;    Eex.    v.  87;    State  v.  Lewis,  30  Ala.  54,   68 

Lapin,    1    Leach   C.    C.   360,   6   Am.  Am.  Dec.  113;   State  v.  Summers,  1 

Dec.  358.  Mo.  App.  374. 

22— West    V.     State,     21     S.     W.  23— State  v.  Womack,  41  La.  Ann. 

(Tex.)    686;    Hill   v.    State,   53    Ga.  635;    State  v.   Bronnon,  55   Mo.   63. 

126;    People   v.    Pawson,    56    N.    Y.  17  Am.  Rep.  643. 
126;  State  v.  McLaughlin,  44  Iowa 


CHAPTER  XLIV 

SEDUCTION 

§  702.  At  the  common  law.  §  705.  Previous  chaste  character. 

§  703.  Definition.  §  705a.  Burden  of  proof,  conflict  of 

§  704.  Of  the  promise  of  marriage.  decision. 

§  702.  At  the  common  law.  At  the  common  law  se- 
duction was  not  a  crime.  The  father  had  a  right  of 
action  against  one  who  had  seduced  his  daughter.  The 
husband  also  had  his  action  for  damages  against  one 
committing  adultery  with  his  wife.  The  two  actions 
seem  to  have  been  allowed  upon  different  reasons.  The 
father's  action  was  allowed  upon  the  theory  that  it  was 
a  trespass  by  reason  of  the  assault,  and  the  consequent 
loss  of  services.  It  was  founded  upon  the  theory  of 
master  and  servant,  and  not  upon  the  relation  of  par- 
ent and  child.  In  the  case  of  the  husband,  he  was  al- 
lowed damages  because  of  the  casting  upon  him  for  his 
care  and  protection  of  spurious  issue,  and  also  perhaps 
for  the  consequent  loss  of  services.  As  we  have  ex- 
plained there  was  no  crime  for  the  adultery,  for  the 
common  law  did  not  undertake  to  correct  the  wrong  ex- 
cept to  allow  the  husband  the  right  of  action  against 
the  seducer.  The  seduction  of  the  daughter,  it  seems, 
might  be  accomplished  in  any  manner  that  induced  her 
to  yield  her  virtue.  It  was  not  dependent  upon  the  prom- 
ises of  marriage,  or  any  other  specified  cause.  For  the 
purpose  of  meeting  this  flagrant  breach  of  sound  moral- 
ity the  statutes  of  the  several  states  have  provided  in 
particular  what  shall  constitute  the  criminal  offense  of 
seduction,  of  which  we  shall  see  as  we  proceed. 

§  703.  Definition.  This  crime  consists  in  the  persuad- 
ing or  inducing  a  woman  of  previous  chaste  character 
to  depart  from  the  path  of  virtue,  by  the  use  of  seduc- 
tive arts,  persuasions,  blandishments  and  wiles  which 
have  the  effect  upon  her  to  cause  her  to  yield  her  vir- 
tue to  the  seducer,^  as  lier  first  act.    Many  of  tlie  statutes 

1— Putman  v.  State,  29  Tex.  App.       454,  25  Am.  St.  Kop.  738,  16  S.  W. 

650 


Seduction  651 

of  the  several  jurisdictions  are  in  many  respects  simi- 
lar, but  in  others  dissimilar.  Most  of  them  provide  that 
if  the  female  is  induced  to  yield  herself  to  the  embraces 
of  the  seducer  by  a  promise  of  marriage,  that  this  con- 
stitutes the  crime  unless  the  marriage  is  in  fact  consum- 
mated before  prosecution.  Some  statutes  make  this  only 
seduction  when  the  promise  is  made  to  a  female  within  a 
certain  age,  and  all  women  acting  upon  promises  of  mar- 
riage over  the  statutory  age  and  thereby  yielding  their 
virtue,  does  not  constitute  the  crime  in  the  seducer.  It 
seems  that  unless  the  statutes  set  out  specifically  what 
shall  constitute  the  inducement,  then  any  inducement 
which  has  the  effect  of  persuading  her  to  consent  to  the 
act  will  be  sufficient.  There  must  be  some  kind  of  de- 
ception practiced  by  the  defendant,  and  believed  by  the 
prosecutrix,  some  imposition  relied  upon  by  her,  which 
caused  her  to  yield  herself  to  him.  The  mere  mutual 
desire  to  engage  in  illicit  intercourse  is  not  sufficient. 
In  other  words,  the  female  must  be  imposed  upon,  and 
because  of  the  imposition  she  gives  her  consent  to  the 
act.^  If  she  yields  by  threats,  fear  or  force,  this  is  not 
seduction. 

§  704.  Of  the  promise  of  marriage.  As  we  have  said, 
the  statutes  of  most  of  the  states  provide  that  if  the 
female  is  induced  through  the  promise  of  marriage  to 
yield  her  virtue,  this  is  seduction.  Thus  it  will  be  seen 
that  it  is  necessary  that  the  female  be  unmarried  at  the 
time  the  promise  is  made.  It  is  believed  that  in  all  or 
most  of  the  states  the  female  must  be  unmarried.  If 
there  is  any  statute  of  any  of  the  states  making  it  seduc- 
tion to  obtain  the  consent  of  a  married  woman  to  an  act 
of  carnal  intercourse,  by  inducing  thereto  by  any  kinds  of 
flattery,  persuasion,  blandishment  or  wiles  our  investi- 
gation of  the  subject  has  not  disclosed  it.  It  is  not  neces- 
sary, however,  that  the  man  be  legally  able  to  consum- 

97;  State  v.  Patterson,  57  Am.  Kep.  2— Powel    v.    State,    20    So.    4; 

374,  88  Mo.  88.  Smith  v.  State,  107  Ala.  139. 


652  Criminal  Law 

mate  the  maniage.^    It  is  sufficient  if  the  female  believed 
that  he  could  do  so,  and  that  he  would  do  so.    It  seems 
that  it  is  not  necessary  that  the  seduction  take  place  at 
the  time  of  the  promise,  but  if  the  act  follow  the  promise 
as  the  legitimate  sequence  of  such  promise,  this  will  be 
seduction.     If  the  intercourse  follow  the  promise  of  an 
infant  male  person  otherwise  incapable  of  contracting, 
and  not  permitted  under  the  laws  to  form  a  contract  of 
marriage,  then  it  is  no  defense  to  the  charge  that  he 
was  an  infant.*    The  question  whether  the  promise  was 
relied  upon  is  one  of  fact  to  be  determined  by  the  jury, 
taking  into  consideration  the  circumstances  of  the  par- 
ticular case.    No  general  rule  can  be  given  which  can  be 
made  to  all  cases.    The  opportunities  of  the  prosecutrix 
for  receiving  the  flatteries  and  the  amenities  of  the  oppo- 
site sex,  her  previous  opportunities  for  association  with 
men,  her  education  and  her  station  in  life  may  be  taken 
into  consideration  to  determine  whether  she  w^as  in  fact 
deceived  and  imposed  upon.    As  where  a  young  man  of 
eighteen  years  of  age  frequently  staying  up  with  a  young, 
unsophisticated  countiy  girl  to  midnight,  and  told  her 
there  w^as  no  harm  in  having  illicit  intercourse  and  that 
nearly  everybody  did  it,^  the  court  held  that  a  convic- 
tion was  proper.    A  young  girl  might  be  made  to  yield 
to  the  blandishment  of  a  lover,  and  believing  the  truth- 
fulness   of   his    statements,   in   good   faith   extend   the 
favor  of  her  virtue,  whilst  the  same  promises  and  protes- 
tations to  an  older  and  more  mature  woman  be  looked 
upon  as  mere  folly  and  idle  prating. 

It  is  not  every  promise  of  marriage  a  woman  is  en- 
titled to  rely  upon.  As  where  the  man  is  known  to  the 
woMiaii  to  bo  married  at  tlie  time,  she  is  bound  by  this 
knowledge,  for  she  cannot  be  deceived  by  a  promise 

3— Callahan  v.  State,  30  Am.  Ecp.  note,  Kcnyon  v.   Tcoplc,   2G   N.   Y. 

211;    State   v.    Adams,   42   Am.    St.  203,  84  Am.  Dec.   117. 
Rep.   790.  5— State   v.   lligdon,  32   la.   262; 

4_People  V.  Kehoo,  128  Cal.  224,  note  to  Bradshaw  v.  Jones,  76  Am. 

69  Am.  St.  Rep.  52;  case  cited  in  St.,  page  671. 


Seduction  653 

which  she  knows  cannot  be  fulfilled.^  So  it  has  been 
held  that  where  there  is  an  abrupt  and  blunt  offoy  of 
marriage  upon  the  condition  that  she  yield  her  virtue, 
there  is  not  seduction,  but  something  more  of  barter 
and  sale.'  So,  there  can  be  no  seduction  where  the 
promise  is  to  marry  in  the  event  of  pregnancy.®  The 
promise  must  be  one  that  is  calculated  to  win  the  con- 
fidence and  allay  the  suspicions  of  a  modest  woman. 

§705.  Previous   chaste   character.     It  is   one  of  the 

essential  elements  of  this  crime  that  the  female  must, 
prior  to  the  time  of  the  actual  intercourse,  have  been 
of  a  chaste  character.  It  seems  that  most  of  the  statutes 
are  uniform  as  to  the  requirement  that  the  prosecutrix 
be  of  a  chaste  character  before  the  acts  of  seduction. 
Some  of  the  statutes  employ  the  terms  ''previous  chasti- 
ty" and  ''previous  chaste  character."  The  courts  ap- 
pear to  be  a  unit  in  the  construction  of  these  statutes, 
that  the  prosecutrix  must  in  fact  be  chaste,  and  not 
merely  that  she  has  that  repute  among  her  friends  and 
acquaintances.  Actual  personal  virtue  is  required  on  the 
part  of  the  prosecutrix,  and  this  immediately  preceding 
the  seduction.^  There  are  authorities  holding  that  in 
the  absence  of  a  statute  setting  forth  "specifically  that 
the  female  be  of  a  previous  chaste  character,  or  an- 
other equivalent  term  or  phrase,  that  it  is  necessary  to 
show  that  she  was  of  a  chaste  character  or  in  other 

6 — People  V.   Kehoe,   69  Am.   St.  cases  in  American  state,  collated  by 

Eep.   54.  states  in  note  19  Ann.  Cas.  444;  a 

7 — People  V.  Clark,  33  Mich.  112;  few  of  the  cases  cited  are:  Cluckett 

State   V.    Eeeves,    10    Am.    St.   Eep.  v.  State,  71  Ark.  398,  75  S.  W.  1; 

349.  Kerr  v.  U.  S.,  7  Ind.  Territory  486, 

8 — For  a  full  discussion  and  cita-  104  S.  W.  809 ;  Com.  v.  Wright,  27 

tion    of   cases    on    this    subject,   see  S.  W.  815;  Putman  v.  State,  supra; 

note  to  Bradshaw  v.  Jones,  76  Am.  People   v.   Hubbard,    92    Mich.    322, 

St.  Rep.  659.  52  N.  W.  729;   Carroll  v.  State,  74 

9 — The    female    must    have    been  Miss.  688,  60  A.  S.  R.  539;   Andre 

actually  chaste  before  she  yields  her  v.    State,   5    la.    389,    68   Am.    Dec. 

virtue  to  the  seducer.     English  case,  708 ;  People  v.  Nelson,  153  N.  Y.  90, 

Rex.  V.  Moon,  1910  IK.  and  B.  818,  60  A.  S.  R.  592. 
repeated  in  19  Ann.  Cas.  442.     See 


654  Ckiminal  Law 

words  was  chaste.     It  is  inconsistent  with  the  generic 
meaning  of  the  word  ''seduction"  to  suppose  the  exist- 
ence of  the  crime  without  showing  at  the  time  of  the 
commission  of  the   offense,  the  actual  chastity  of  the 
prosecutrix.    Virtue  may  be  lost  and  yet  reclaimed.    So, 
it  perhaps  is  not  the  law  that  if  it  be  shown  that  a  fe- 
male has  at  one  time  prior  to  the  alleged  seduction  been 
of  unchaste  character,  that  she  is  unchaste  at  the  time 
alleged.    There  must  of  course  be  evidence  showing  that 
the  vicious  acts  and  habits  have  ceased  and  that  the 
fonner  way  of  living  and  conduct  have  in  good  faith 
been  changed.    The  question  of  the  chastity  of  the  pros- 
ecutrix is  one  of  fact  for  the  jury  to  determine  upon  all 
the  circumstances  of  the  case.^°    And  for  the  purpose  of 
determining  this  it  is  proper  to  put  in   evidence  the 
acts  of  the  prosecutrix,  and  her  general  conduct  toward 
other  gentlemen;  facts  and  circumstances  showing  a  de- 
bauched mind,  such  as  lewd  conduct  and  behavior.    The 
presumption  prevails  that  the  prosecutrix  is  at  the  time 
of  the  alleged  seduction  chaste.    The  burden  is  upon  the 
defendant  to  show  that  she  was  not  chaste.    If  he  shows 
that  at  one  time  in  her  life  she  was  unchaste,  then  the 
burden  is  upon  the  prosecution  to  show  that  at  the  time 
alleged  she  has  reformed  and  that  she  was  of  chaste  char- 
acter.   Where  a  reasonable  time  has  elapsed  between  the 
previous  act  of  intercourse  and  the  alleged  seduction  the 
presumption  prevails  that  she  has  reformed." 

§705a.  Burden  of  proof — Conflict  of  decision.  The 
courts  appear  to  be  hopelessly  in  conflict,  in  the  opinion 
whether  the  prosecutrix  is  to  be  presumed  to  have  been 
ciiastc,  prior  to  tlie  intercourse  with  the  defendant,  whom 
she  cliarges  with  liaving  seduced  her.  Some  mniulaiii 
that  previous  chaste  character  is  one  of  the  elements  of 
the  crime,  and  as  such,  it  devolves  upon  the  state  to 
prove  that  she  was  such.^'^     Others  maintain   that  all 

10— StAto  V.  Pluirp,  132  Mo.  105;  1 1— Pooplo    v.    Squires,    49    Mich. 

Wwon  V.  State,  73  Ala.  527;   Stato       487;  People  v.  Nelson,  supra. 
V.   Moore,  78  la.   494.  12— Dalaa   v.    State,    3    A.    L.   R. 


Seduction  655 

females  are  presumed  to  be  chaste,  and  that  unchastity 
is  a  defense  which  the  defendant  may  maintain,  if  he 
can.  The  former  argue,  that  the  defendant  enters 
into  his  trial  with  the  presumption  of  innocence,  until 
liis  guilt  is  proven,  beyond  a  reasonable  doubt;  and 
that  when  a  female  is  so  unfortunate  as  to  be  a  pros- 
ecutrix in  a  charge  of  this  kind,  the  presumption  in  her 
favor  must  give  way  to  that  of  innocence  of  the  defend- 
ant. It  is  admitted  by  all  authorities  that  women  gen- 
erally are  presumed  to  be  chaste,  up  to  the  time  her 
character  is  brought  in  question  in  the  prosecution  for 
seduction.^^  The  best  that  can  be  said  is  that  the  deci- 
sions of  the  local  jurisdiction  in  which  the  question 
arises  is  the  rule  to  be  followed.  The  position  taken  by 
the  courts  of  Oklahoma  that  chastity  is  presumed  until 
defendant  overcomes  by  proof,  of  unchastity,  is  more 
in  accordance  with  sound  reason  and  justice  to  innocent 
females.  The  law  itself  makes  it  a  crime,  only  because 
it  is  an  imposition  upon  an  immature  and  pliable  na- 
ture.^* 

1459;  Zabriski  v.  State,  43  N.  J.  L.  previous    chaste   and   virtuous   char- 

640,  39  Am.  Eep.  610.  acter   of  the   prosecutrix   beyond   a 

13 — State  V.  Kelley,  245  Mo.  489,  reasonable  doubt."     In  Com.  v.  Al- 

43  L.  E.  A.  New  Series  476,  150  S.  len  (1890),  135  Pa.  483,  19  Atl.  957, 

W.    1057;    State    v.    McMahon,    234  a    prosecution    for    rape,    the    court 

Mo.   611,   137   S.   W.   872;    State   v.  said:    "There  was  no  need  for  the 

Cook  (Mo.),  207  S.  W.  831.  commonwealth    to    prove   her    to    be 

■14 — Marshall  v.  Territory,  2  Okla.  of   good   repute   until  her  character 

136;  but  in  Diffey  v.  State  (1913),  had    been   attacked.      The    law   pre- 

10   Okla.,  Crim.  Eep.   190,   135   Pac.  sumes  it  to  be  good.     If  it  was  not, 

942,  in  answer  to  the  contention  that  that   was  a  matter  of  defense.     A 

prosecutrix   in   rape  was  not   shown  man  who  seeks  to  escape  conviction 

to  have  been  of  previous  chaste  and  for  an  offense  of  this  nature  upon 

virtuous   character,   the   court   said:  the  ground  that  the  female  child  he 

' '  The  law  presumes  that  a  female  has   abused   is   not   of   good   repute 

is  chaste  and  virtuous,  and  this  pre-  must  show  it.    The  law  will  not  help 

sumption  authorizes  the  jury  to  as-  him  out  with  presumptions.   See  also, 

sume  at  the  outset  that  the  prosecu-  to  the  same  effect,  under  the  same 

trix    was    chaste    and    virtuous.      If  statute,    Com.   v.   Howe    (1908),    35 

any  evidence   is  introduced   tending  Pa.    Super.    Ct.    554,   same    case    on 

to  show  a  want  of  previous  chaste  other  appeals  in  (1909),  38  Pa.  Su- 

and    virtuous    character,    then    the  per.    Ct.    208,    and    (1910),    42    Pa. 

state    is    required    to    establish    the  Super.  Ct.  136. 


CHAPTER  XLV 

SODOMY 

S  706.  Defined.  §  707a.  Sodomy   per  os. 

§  707.  As  to  the  assault. 

§  706.  Sodomy  is  copulation  of  persons  with  each  other 
against  nature,  or  with  beasts.  At  the  common  law  it  is 
a  felony  and  punishable  with  death.  At  common  law  it 
was  not  very  fully  defined.  Blackstone  defining  it  as  the 
infamous  crime  against  nature.^ 

By  the  law  of  the  ancient  Goths  the  sodomites  were 
punished  by  burning  alive.  This  crime  is  particularly 
detestable.  That  there  is  consent  on  the  part  of  both 
parties  is  no  defense,  as  there  is  in  the  crime  of  rape.' 
At  conmion  law  it  appears  that  there  was  some  ques- 
tion whether  both  penetration  and  emission  was  neces- 
sary to  complete  the  crime;  but  now  it  is  pretty  gen- 
erally conceded  that  penetration  alone  is  sufficient.  This 
offense  can  be  connnitted  between  males  and  females  as 
well  as  between  males.  A  man  and  his  wife  might  be 
guilty  of  the  offense.* 

§  707.  An  assault  with  intent  to  commit  sodomy  is  an 
indictable  attempt  to  commit  the  crime.  It  appears 
tliat  both  parties  ni;>y  be  guilty  of  the  attempt  to  com- 
mit the  crime,  when  for  any  reason  there  is  a  i'aihire  to 
penetrate.    All  the  states  we  presume  have  statutes  cov- 

2—4    lila.  fori).   215.  4 — Lewis   v.   Stale,   36    Tex.    Ajip. 

3_If  coniniitted   on   a  boy  nnder  .S7,   01    Am.    St.    Hep.   8.31;    riiiidle 

the  aRc  of  fourteen  years,  the  adult  v.  State,  31  Tex.  App.  r)51,  37   Am. 

person  is  guilty  only,  1  Hale  470;  3  St.  Rep.  833;  People  v.  Ilod^kiii,  04 

Inst.  59.  Mich.  27,  34  Am.  St.  Rep.  321. 

G56 


Sodomy  657 

ering  in  particular  this  crime  and  the  attempt.    A  solici- 
tation to  commit  this  crime  is  criminal  attempt.^ 

§  707a.  Per  os.  This  crime,  as  defined  above,  has  been 
adopted  in  many  of  the  several  states  by  legislative 
enactment,  and  from  the  construction  placed  thereon  by 
the  courts  two  lines  of  decisions  have  arisen:  One  hold- 
ing that  copulation  per  os,  that  is  by  mouth,  constitutes 
the  crime  of  sodomy ;  ^  and  the  other,  that  it  does  not.'' 
Perhaps  the  latter  is  the  rule  in  the  majority  of  the 
several  states  of  this  country.  Apparently  there  is  a 
conflict  in  the  courts.  The  crime  at  common  law  was 
confined  to  the  offense  between  human  beings,  per  anus. 
The  crime  derived  its  name  from  the  practices  of  the 
Sodomites,  the  city  of  Sodom,  and  the  condemnation  of 
the  inhabitants,  as  recorded  in  holy  writ,  is  familiar  to 
every  bible  reader.  Historically,  these  abominable  prac- 
tices, it  is  stated,  have  been  common  in  all  ages,  and 
epochs.  The  reason  is  not  very  apparent  why  the  com- 
mon law  did  not  sufficiently  define  the  crime  except  upon 
the  theory  that  the  same  was  so  contrary  to  human  na- 
ture, and  disgusting  to  the  higher  sensibilities  of  the 
race.  The  courts  of  this  country,  however,  with  more 
than  veneration,  have  construed,  in  accordance  with  the 
common  law,  that  the  penetration  per  the  mouth  did 
not  come  within  the  definition  of  Sodomy.  As  before 
stated,  penetration  is  essential,  but  emission  is  not.  At 
one  time  the  ancient  common  law  required  both,  but 
by  the  statute  of  9  George  I,  14  C.  31,  this  was  abolished, 
and  since  that  time  penetration  is  the  only  essential. 

5— Eex.  V.  Hickman,  1  Moody  34;  101  N.  E.   620,  45  L.  K.  A.,  N.   S. 

Davis  V.  Brown,  27  Ohio  326;  Estes  473;    State    v.    Start,    65    Ore.    178, 

V.    Carter,    10    la.    400;    Fennel    v.  132  Pac.  572,  16  L.  E.  A.,  N.  S.  260. 

State,  32  Tex.  378,  39  Tex.  290,  29  7— Note   21st   Am.   Cas.   336,  and 

Tex.   44.  authorities  referred  to. 

6— Grover  v.  State,  170  Ind.  450, 
C.  L.— 42 


CHAPTER  XLVI 


SUNDAY  LAWS  AND  OFFENSES  AGAINST  RELIGION 


§  708.  Cliristianitj-  as  a  part  of  the 
common   law. 

§  709.  No  punishment  for  non-ob- 
servance of  religion. 

§  710.  Divisions   of  the  offense. 

§  711.  Definition  of  Blackstone. 

§  712.  Profane  swearing  a  public 
nuisance. 

§  713.  Single  instances  of  swearing 
not  punishable. 

S  714.  Non-observance  of  religion, 
whether   common   law. 


715. 
716. 
717. 
718. 
718a 

719. 
720. 
721. 


§722. 


Sustained  upon  what  grounds. 

INIunicipal  regulations. 

Sunday  laws  constitutional. 

Same   continued. 

.  Power  conferred  upon  city 
governments. 

As  to  the  statutes. 

Exceptions   to   labor. 

As  to  those  persons  who  ob- 
serve a  day  other  than  Sun- 
day. 

As  to  the  intent. 


§  708.  Christianity  a  part  of  the  common  law.  By  the 
law  of  England,  many  acts  were  punished,  as  being 
against  religion,  which  is  not  recognized  in  the  United 
States.^  There  is  no  doubt  that  Christianity,  is  a  part 
of  the  common  law  of  this  country,  and  in  many  instances 
it  may  be  resorted  to  in  punishment  of  such  flagrant 
l)hispliemous  and  wicked  attacks  upon  the  Christian  re- 
ligion, as  tends  to  lower  the  standard  of  morality  in  the 
community,  or  to  lessen  the  respect  due  God  and  re- 
ligion.'^ Common  law  ''Blasphemy"  and  "Profaness" 
are  fully  recognized,  as  being  a  part  of  tlie  common  law 
of  the  United  Stales,  although  it  may  be  understood,  that 
the  several  states  have  statutes,— in  some  instances  en- 
larging, and  in  others  curtailing  the  common  law.  In  tlie 
United  States  there  is  no  established  or  state  religion, 
and  the  law  as  such,  does  not  assume  to  punish  irreligion. 


1_4  Bla.  GO,  Sub  Title  Witclicrafl, 
Heresy  and  the  like. 

2— Peoi)lo  V.  JJuggles,  8  .Johns. 
290,  3  Grecnl.  Ev.  68;  Vidol  v.  Ge- 


r.'ird's  Executor,  2  How.  127;  See 
Updcgraft  v.  (^om.,  11  Scrg.  &  U. 
394;  Coni.  v.  Kiialand,  20  Pick.  206; 
State  V.  Chandler,  2  Herring  553. 


658 


Sunday  Laws,  Offenses  Against  Religion        659 

§  709.  No  punishment  for  the  nonobservance.  The  an- 
cient ideas  and  doctrines  seem  to  have  been,  that  the 
state  had  the  right  to  punish  for  the  mere  nonobservance 
of  religion,  and  especially  irreligion,  where  there  was  no 
pretension  whatever  to  its  observance.®  From  whence 
can  a  government  derive  its  authority  to  punish  for  the 
nonobservance  of  religion,  or  any  offenses  it  may  deem 
to  be  against  religion?  As  the  ministers  of  God?  Cer- 
tainly not.  For  whatever  might  have  been  the  notion 
of  the  early  English  writers  and  law  makers,  the  doctrine 
is  long  since  exploded  that  the  community  has  the  right 
to  prescribe  religious  doctrines  and  observances  to  the 
individual.  The  true  doctrine  seems  to  be  that  the  com- 
munity has  a  right  to  punish  offenses  against  religion  to 
the  extent  of  protecting  the  morals  and  good  order  of  the 
community,  and  not  for  the  specific  purpose  of  inspiring 
confidence  and  belief  in  God  and  religion.* 

Such  acts  as  are  purposely  contumaciously  and  mali- 
ciously made,  either  spoken  or  written,  against  God  and 
religion,  have  by  experience  been  found,  provocative  of 
disorder  and  corrupting  to  public  morals.  Hence,  punish- 
ment for  such  acts  follow,  because  they  are  directed 
against  the  welfare  of  the  community,  and  not  merely 
against  God  and  religion.  As  we  have  seen  elsewhere,  all 
immoralities  are  not  within  the  powers  of  the  legisla- 
ture, since  many  immoral  and  irreligious  acts  are  left 
to  the  individual  conscience  for  rectification.  In  such 
instances  the  community  is  deemed  not  to  be  affected  by 
such  acts.  Thus,  the  vice  of  lying,  however  immoral,  is 
non-criminal.  Profanations  made  in  private,  however 
coarse  and  vulgar,  are  not  punishable  by  express  law. 

3—4   Bla.,   see   chap.   4   sub.   tit.,  P.   C.   1   to  36,   2  Chitty  Cr.  Laws, 

Apostasy,     Heresy,     Nonconformity,  13  to  34. 

Blasphemy,  offenses  against  the  es-  4 — Euggles  v.  People,  5  Am.  Dec. 

tablishecl  church,  etc.;    See   1   East.  335. 


660  Crimixal  Law 

§  710.  Division  of  offenses.  It  can  make  veiy  little  dif- 
ference in  the  application  of  punisliments  for  offenses 
against  religion,  whether  the  injury  be  to  religion  in  the 
abstract,  or  to  the  morals  of  the  community.  Since  in 
either  case  the  effect  is  the  same  upon  society,  we  shall 
treat  of  these  offenses  under  the  heads:  (1)  Blasphemy, 
(2)  Profane  swearing,  (3)  Nonobservance  of  the  Sabbath. 

§  711.  Definition  of  Blackstone.    Blasphemy  as  defined 
by  Blackstone  (and  adopted  by  the  American  courts),  is 
an  offense  immediately  against  God  and  religion,  denying 
His  being  or  providence;  or  by  contumacious 'reproaches 
of  our  Savior  Christ.    In  general  tenns  this  oftense  con- 
sists, in  speaking  evil,  either  orally  or  in  writing,  of  God 
and  the  Holy  Scriptures,  with  unholy  and  mischievous 
purpose,  deteriorating  from  the  proper  reverence  for  the 
Deity.     Judge  Kent,  in  Ruggles  v.  People,  says:     The 
authorities  show  that  Blasphemy  against  God,  and  Con- 
tumacious Reproaches,  and  Profane  Ridicule  of  Christ  or 
the  Holy  Scriptures  (which  are  equally  treated  as  blas- 
phemy), are  offenses  punishable  at  common  law,  whether 
by  words  or  writing.    The  consequences  may  be  less  ex- 
tensively pernicious  in  the  one  case  than  in  the  other, 
but  in  both  instances  the  reviling  is  still  an  offense, 
because  it  tends  to  corrupt  the  morals  of  the  people,  and 
destroy  good  order.    Such  offenses,  have  always  been  con- 
sidered independent  of  any  religious  establishment,  or 
rites  of  the  church.     They  are  treated  as  affecting  the 
essential  interests  of  civil  society.    *  Jesus  Christ  was  a 
bastard  and  his  motlier  was  a  whore;'  wliy  should  not 
tliis  lan.guage  contained  in  the  indictment,  be  an  offense 
with  ns?    There  is  nothing  in  our  manners  or  institutions 
wliich  lias  prevented  the  application,  or  the  necessity  of 
the  connnon  law.    We  stand  equally  in  need  now,  as  for- 
merly, of  that  iiioi-al  discipline,  and  those  principles  of 
virtue,  which  lielj)  to  bind  society.     The  people  of  this 
state  in  coimnon  wilh  llic  people  ol"  the  country,  profess 


Sunday  Laws,  Offenses  Against  Religion        661 

the  general  doctrines  of  Christianity,  as  the  rule  of  their 
faith  and  practice;  and  to  scandalize  the  author  of  these 
doctrines,  is  not  only,  but  even  in  respect  to  the  obliga- 
tions due  to  society,  is  a  gross  violation  of  decency  and 
order.  Nothing  could  be  more  offensive  to  the  virtuous 
part  of  the  community,  or  more  injurious  to  the  tender 
morals  of  the  young,  than  to  declare  such  profanity 
lawful.'"^ 

PROFANE  SWEARING 

§  712.  Form  of  a  public  nuisance.  While  this  offense 
is  a  species  of  blasphemy,  its  criminality  appears  to  rest, 
almost  upon  entirely  different  reasons.  Common  swear- 
ing, cursing,  and  profanity,  are  pronounced  criminal  only 
where  they  take  the  form  of  a  public  nuisance,  and  as 
such  are  indictable  at  common  law.^  Hence,  swearing  in 
private,  or  in  a  low  tone  of  voice,  is  not  indictable.''  In 
general,  under  the  statutes,  swearing  is  criminal  only 
when  it  takes  the  form  of  a  nuisance,  or  the  tendency  of 
which,  is  to  provoke  breaches  of  the  peace.  Loud,  bois- 
terous, vulgar  and  indecent  language  used  in  a  public 
place  may  be  abated  as  a  common  nuisance. 

§  713.  Single  instances  not  punishable.  Profanity  is 
indictable  when  it  becomes  a  public  nuisance,  and  when 
it  is  shown  that  the  swearing  or  profane  language  is 
offensive  to  the  public.^    It  is  not  necessary  to  show  that 

5 — Euggles  V.  People,  5  Am.  Dec.  could   so   inconvenience   the   commu- 

335;    Cities    Taylors    Case,    1    Vent.  nity   as   to   amount   to   a   nuisance; 

293,  4  Bla.  59,  1  East.  P.  C.  3.  yet  we  can  suppose  such  cases,  and 

6 — State  V.  Gaines,  40  Am.   Dec.  surely,  the  fact  that  it  may  be  dif- 

64.  ficult    to    establish    an    offense    and 

7 — ' '  To  become  a  public  nuisance,  punish  the  offender  could  not  be  a 

the  conduct  of  the  party  must  pass  valid   reason   for    relaxing    the    law 

beyond  the  point  of  being  injurious  with  regard  to  it."     State  v.  Crisp, 

to   the   individuals,    and   be   hurtful  39  Am.  Rep.  713. 

and  offensive  to  the  community;  and  8 — Gaines  v.   State,   40   Am.  Rep. 

it  may  be  difficult  to  prove,  that  the  64;  State  v.  Graham,  3  Sneed.  134. 

use  of  profane  words,  but   for  the  "Any  words  imparting  an  impreca- 

space   of  five   consecutive   moments,  tion  of  divine  vengeance,  or  implor- 


662  Criminal  Law 

the  name  of  the  deity  has  been  used.®  The  single  in- 
stance of  a  profane  oath,  not  repeated,  nor  in  a  lond  voice, 
has  been  held,  not  to  be  per  se,  indictable.^"  Yet,  under 
some  circumstances  a  single  oath  might  become  offensive 
to  the  public. 

NON-OBSERVANCE   OF   THE   SABBATH 

§  714.  Whether  common  law.  All  Christian  communi- 
ties have  for  centuries,  observed  one  day  in  seven,  as  a 
day  of  rest  and  worship.  It  is  immaterial,  so  far  as 
these  pages  are  concerned,  whether  the  failure  to  observe 
the  Sabbath  was  common  law  in  England  or  not.  At  a 
very  early  period,  the  English  parliament  enacted  stat- 
utes prohibiting  secular  pursuits  on  the  sabbath,  and  in 
some  form  or  other  punished  the  failure  to  worship  God. 
It  is  also  unimportant,  whether  these  statutes  could  be 
common  law  in  our  states,  for  it  has  always  been  the 
policy  of  our  nation  to  prohibit  the  following  of  manual 
occupations  on  the  Sabbath.  Every  state  of  this  Union 
have  statutes  covering  in  particular  all  violations  of  the 
Sabbath,  such  as  laboring  in  the  field,  attending  the  ex- 
change, the  marts  of  commerce,  keeping  open  shop,  or 
office,  and  many  other  kinds  of  secular  pursuits.  The 
genius  of  our  institutions  (while,  in  sentiment,  is  em- 
bedded in  the  doctrines  of  the  Christian  religion,  as  ob- 
served in  the  mother  country),  yet  limit  her  prohibitions 
against  secular  pursuits  only,  and  not  against  the  privi- 
lege to  worship  God  according  to  the  dictates  of  the  indi- 
vidual." 

in^  flivinc  condoninatioii,  so  used  as  tlic  oatli  is  oflon  ropoiitcd,  ;iltli(iu;,rli 

(o  constitute  a  public  nuisance  would  upon  the  same  occasion,  :hh1   lor  llic 

sufTice. "  ])i'ri<)d    of    five    minutes,    Ilic    (in'tiiHe 

9 — Gaines   v.   State,   40    Am.   Tfe]).  of    common    nuisance    is    coinplrlc. " 

64;  Cnlcoml.  v.  State,  8  Conn.  'M't;  State    v.    Crisp,    :\9    Am.    IJep.    713, 

Cited  by  fhe  court  in  Gaines  v.  State,  .sn  N.  C.  r>'2H. 
Huprn.  11 — Hloom  v.  Iviclmrds,  12  Oliio  St. 

10 — Gaines   v.    State,   supra,   cites  ;J1)1. 
8tate  V.  Graham,  .3  Sneed.  134.  "If 


Sunday  Laws,  Offenses  Against  Religion        663 

§715.  Sustained  upon  what  grounds.  The  statutes 
against  Sabbath  breaking  are  sustained  by  the  courts, 
mainly  upon  the  reason  that  laboring  and  following  the 
usual  occupations  on  that  day,  is  corruptive  to  public 
morals  and  subversive  of  the  best  interests  of  society. 
Most  of  the  state  constitutions  guarantee  to  every  person 
the  privilege  of  worshiping  God  in  his  own  fashion,  and 
in  his  own  way.  In  view  of  those  provisions,  many  cases 
have  been  before  the  courts  claiming  that  the  prohibi- 
tions against  laboring  on  the  Sabbath  was  contrary  to 
these  constitutional  provisions.  These  statutes  have  in 
an  unbroken  line  of  decisions,  been  held  to  be  constitu- 
tional." 

§  716.  Municipal  regulations.  The  court  in  a  leading 
case,  in  constniing  the  effect  of  such  statutes  and  the 
right  of  the  legislature  to  enact  them,  says :  * '  Of  course, 
it  is  no  objection,  but  upon  the  contrary,  is  a  high  recom- 
mendation to  a  legislative  enactment,  based  upon  justice 
and  public  policy,  that  it  is  found  to  coincide  with  the 
precepts  of  pure  religion;  but  the  fact  is  nevertheless 
true,  that  the  power  to  make  the  laws  rests  in  the  legisla- 
tive control,  over  things  temporal  and  not  over  things 
spiritual.  We  are  then  to  regard  the  statute  under  con- 
sideration, as  a  mere  municipal  or  police  regnilation, 
whose  validity,  is  neither  strengthened  nor  weakened  by 
the  fact  that  the  day  enjoined  is  the  Sabbath  day.  Wis- 
dom requires  that  men  should  refrain  from  labor  at  least 
one  day  in  seven,  and  the  advantages  of  having  the  day 
of  rest  fixed,  and  so  fixed  that  it  will  happen  at  regular 
recurring  intervals,  are  too  obvious  to  be  overlooked.  It 
is  within  the  constitutional  competence  of  the  general  as- 
sembly, to  require  this  cessation  of  labor  and  to  name 
the  day  of  rest.    But  regarding  it  as  an  exercise  of  legis- 

12— Shovcr  V.  State,  10  Ark.  259;  St.  391;  See  Specklet  v.  Com.,  49 
Scales  V.  State,  47  Ark.  476,  58  Am.  Am.  Dec.  518,  8  Pa.  St.  312.  See 
Eep.  768 ;  Bloom  v.  Richards,  2  Ohio       note  58  Am.  Eep.,  page  772. 


664  Criminal  Law 

lative  authority,  the  acts  would  not  have  had,  neither 
more  nor  less  validity,  had  any  other  day  been  fixed. ' '  ^' 

§  717.  Sunday  laws  constitutional.  Therefore  as  an- 
nounced in  the  foregoing  pages,  statutes  regulating  the 
doing  of  anything  on  Sunday  is  within  the  police  power 
of  the  state,  and  cannot  be  said  to  be  in  contravention  of 
those  constitutional  provisions  guaranteeing  religious 
freedom.  The  idea  is  not  that  the  state  shall  compel  the 
observance  of  Sunday  as  a  religious  duty,  but  that  in  the 
government  of  civil  society,  it  becomes  necessary,  in  con- 
sideration of  man's  moral,  mental  and  physical  welfare, 
to  enforce  the  observance  of  one  day  in  seven  as  a  day 
of  rest."  Hence,  it  is  now  well  settled,  that  the  state  in  the 
exercise  of  its  inherent  police  power,  may  limit,  restrict, 
or  prohibit,  any  class  of  labor  or  acts  which  is  deemed  to 
be  for  the  benefit  of  the  community;  and  to  this  end  may 
prohibit  the  running  and  the  operation  of  railroad  trains 
on  the  Sabbath,  and  that  too,  notwithstanding  that  the 
road  may  be  interstate  in  its  operations.  No  better  expo- 
sition can  be  made  than  in  the  language  of  Judge  Green : 
''The  statute  was  passed  for  the  sole  purpose  of  promot- 
ing the  mental,  moral  and  physical  well  being  of  our 
people,  by  providing  that  they  should  rest  a  seventh  part 
of  their  time  from  labors  of  every  description,  and  that 
this  rest  slionld  bo  at  regular  intervals.  The  legislature 
had  no  sort  of  purpose  in  doing  so,  to  regulate  in  any  way 
interstate  commerce.  It  does  not  propose  to  trammel,  hin- 
der or  shackle  commerce.  It  was  intended  for,  and  is, 
only  an  internal  policy  law;  and  though  it  may  have  some 
incidental  effect  upon  the  interstate  commerce  of  the  de- 
fendant, that  fact  according  to  all  tlio  authorities,  does 

13— Bloom  V.  Richards,  2  Ohio  St.  Rprccht   v.  Com.,  8   Pa.   St.   312,    19 

391;    Sec   also   Society   v.   Conihnrn,  Am.  Dec.   518. 

Pa.  St.  125,  91  Am.  Dec.  139;  Gallic  14— State    v.    Orlonns    .ludi^o,    39 

V.   Houston,  29   Tex.   235;    State   v.  La.   Ann.   132;   Sprecht  v.  Com.,  49 

Orleans    .TnrlRe,    39    La.    Ann.    132;  Am.  Doc.  518,  8  Pn.  St.  312. 


Sunday  Laws,  Offenses  Against  Religion        665 

not  make  such  a  law  unconstitutional  as  regulating  inter- 
state commerce;  for  it  does  not  regulate  it  in  the  consti- 
tutional sense  of  the  word."  ^^ 

§  718.  Continued.  The  views  expressed  by  Judge  Green 
in  the  foregoing  section,  is  doubted,  and  the  question 
viewed  from  the  authorities,  is  not  a  settled  one.  But  it 
appears  to  us,  reason,  conscience  and  justice,  is  with 
the  views  of  the  court  in  the  West  Va.  case  above  referred 
to.16 

§  718a.  Power  conferred  upon  city  governments.  Be- 
fore leaving  this  branch  of  the  law,  attention  is  called  to 
the  fact  that  the  state  legislatures,  usually,  have  author- 
ity to  confer  upon  the  municipal  governments  of  cities 
and  towns,  the  power  to  regulate  the  proper  observance 
of  the  Sabbath.  The  question,  however,  of  the  limit  and 
extent  of  power  placed  upon  such  municipal  bodies,  is 
properly  referable  to  the  local  constitutional  and  statu- 
tory provisions  of  the  state.^''  The  right  of  the  legislature 
and  the  municipal  governments  of  cities  and  towns,  to 
place  restrictions  on  the  sale  of  specific  articles,  or  the 
pursuit  of  particular  trades  or  business,  to  the  exclusion 
of  others,  has  been  denied,  but  the  courts  seem  to  be 
uniform  in  holding  that  such  statutes  and  municipal 
regulations  are  not  constitutional,  because  of  discrimi- 
nation.^* 

§  719.  As  to  statutes.  The  statutes  vaiy  in  the  several 
jurisdictions,  and  what  may  be  prohibited  in  the  one, 
might  not  be  in  another.  No  useful  purpose  can  be  sub- 
served in  this  connection  by  enumerating  the  provisions  of 

15 — State   V.    Baltimore    Railroad  App.  597;  State  v.  Langstone,  88  N. 

Co.,  24  W.  Va.  783.  C.  692. 

16— Norfolk   Ey.   Co.   v.   Com.,   13  18— People  v.  Scranton,  61  Mich. 

S.  E.  340;  See  authorities  cited.  244;   Ex  parte   Sundstrom,  25   Tex. 

17— Flood  V.  State,  19  Tex.  App.  App.  133;  State  v.  Walsh,  36  Conn. 

584;   Angerhoffcr  v.  State,  15  Tex.  215. 
App.  613 ;  Bohney  v.  State,  21  Tex. 


^QC  Ckiminal  Law 

any  particular  statute.  They  are  in  many  respects  similar 
in  phraseology,  and  in  the  construction  placed  upon  them 
by  the  courts.  But  owing  to  their  difference  in  language, 
no  general  rule  can  be  deduced.  In  general  these  statutes 
prohibit  all  employments  or  laboring  on  the  Sabbath,  but 
exceptions  are  often  met  with  where  the  thing  is  one  of 
necessity;  such  as  open  drug  stores,  meat  markets,  news 
stands,  and  the  like.^^ 

§  720.  Labor  excepted.  Most  statutes  recognizing  the 
justice  and  the  importance  of  at  all  times  protecting  the 
citizen  in  his  person,  and  in  the  security  of  his  property, 
except  labor  and  other  acts  which  are  found  to  be  neces- 
sary to  be  performed  on  the  Sabbath.  Thus,  cooking  and 
preparing  the  necessary  food  and  drink,  would  in  the 
absence  of  a  statute  be  free,  from  the  nature  of  the  thing, 
from  interference  of  the  penal  law.  But  the  necessity  of 
the  matter  must  be  governed  by  the  surroundings  and  the 
circumstances.  By  the  authority  of  Holy  Writ,  we  have 
the  right  to  take  the  ox  from  the  ditch.  Again,  acts  of 
charity  are  exempt,  such  as  proceed  from  a  sense  of 
moral  duty;  as  instanced  in  the  attendance  of  church;  the 
burial  of  the  dead;  the  ministering  to  the  sick  and  reliev- 
ing the  distressed;  even  such  acts  entail  labor.  All  those 
things,  that  as  well  could  have  been  performed  on  an- 
other day,  is  without  the  exceptions.^" 

§  721.  Those  who  observe  a  day  other  than  Sunday. 

Statutory  provisions  in  some  of  the  several  jurisdictions, 
out  of  respect  to  the  religion  of  a  party  of  its  citizens,  who 
desire  to  obserA^e  some  other  day  than  tlie  first  day  of  the 
week  as  their  day  of  rest  and  worsliip,  are  permitted  to 

19 — People  V.  Scranton,  61    ]\Ticli.  20 — Hco  Statulcs  of  several  states, 

244,  28  N.  W.  81 ;   Htato  v.  Ohiner,  Also  24  Am.  &  l':iip:.  Eiicly.  513-544- 

34     Mo.     115;     IIcllnineH     v.     Alicr-  515,  and  ca.sca  cited. 
combrc,  40  Am.   IJcp.  684,   15  S.  C. 

no. 


Sunday  Laws,  Offenses  Against  Religion       667 

follow  the  ordinary  pursuits  on  the  day  regularly  ap- 
pointed by  the  law  as  a  day  of  rest,  without  incurring  the 
penalty  incident  thereto,  in  other  persons ;  provided,  how- 
ever, such  persons  observe  some  other  day  as  a  day  of  rest 
in  good  faith.^^ 

§  722.  The  intent.  A  criminal  intent,  is  as  necessary  to 
constitute  this  offense  as  in  any  other  crime,  that  is,  an 
insane  person  will  not  be  subject  to  the  operation  of  the 
law ;  nor  would  one  who  is  forced  or  coerced,  but  one  who 
acts  contrary  to  the  prohibitions  of  the  law,  is  not  ex- 
cused from  its  penal  consequences  because  he  may  believe 
that  it  is  his  duty  to  violate  such  prohibitions.  So,  in  the 
case  one  believes,  from  a  sense  of  religious  duty,  that  he 
should  not  so  observe  the  day  set  apart  as  Sunday,  be- 
cause it  is  contrary  to  his  religious  convictions,  is  never- 
theless guilty  if  he  does  an  act  contrary  to  the  statutes.^^ 

§  723.  There  are  many  offenses  at  common  law  and  old 
statutes  of  England  that  are  not  indictable  offense  in 
this  country.  The  principles  involved  in  these  however, 
have  been  reaffirmed  and  carried  into  the  statutes  of  the 
United  States  and  of  the  several  states,  in  an  extended 
and  modified  form;  this  jDrincipally  because  of  the 
changed  conditions,  and  the  difference  in  the  form  of 
government  and  nationality;  and  again  because  of  the 
utter  extinction  of  the  reasons  that  gave  rise  to  the 
original  crimes. 

21 — Johns  V.  state,  .78  Ind.  332,  that  he  is  permitted  by  the  law  of 

41    Am.    Rep.    577n;     Libeiman    v.  God  to  labor  on  Sunday,  he  violates 

State,  26  Neb.  464;    Com.  v.  Has.,  with  impunity  a  statute  making  it 

122   Mass.   40;    Scales  v.   State,   47  illegal  to  do  so.     But  a  man's  reli- 

Ark.  476,  58  Am.  Rep.  768.  gious  belief  cannot  be  accepted  as  a 

22 — In  the  case  of  Scales  v.  State,  justific.ntion  for  committing  an  overt 

47  Ark.  476,  the  court  said:    "The  act  made  criminal  by  the  law  of  the 

appellants  are  reduced  to  this:  that  land." 
because    he    conseientiouslv    believes 


CHAPTER  XLVn 

TREASON 

S  724.  Not  indictable  as  at  common 
law  offense  in  this  country. 

§  724.  This  crime  by  the  laws  of  England — the  common 
law  offense,  is  not  indictable  in  this  country.  At  the 
common  law  the  crime  was  divided  into  two  classes,  viz. ; 
high  and  petit  treason.  High  treason  consisted  in  the 
attempt  to  exercise  royal  power;  killing  the  king's  father, 
or  his  messengers;  to  compass  or  imagine  the  king's 
death;  to  violate  the  king's  daughter,  unmarried;  or  the 
wife  of  the  eldest  son,  or  the  king's  companions;  levying 
war  against  the  realm;  adhering  to  the  king's  enemies;  to 
counterfeit  the  king's  great  or  privy  seal,  to  counterfeit 
the  king's  money,  or  kill  the  chancellor,  treasurer,  or  the 
justices.  Petit  treason  consisted,  in  the  killing  of  the  hus- 
band by  the  wife,  the  killing  by  a  servant  his  master,  and 
an  ecclesiastic,  his  lord  or  ordinaiy.  Petit  treason  was 
founded  upon  the  theory  that,  in  the  domestic  life  of  the 
subject,  the  wife  and  the  servant  stood  in  the  same  rela- 
tion to  the  husband  and  the  master,  as  the  husband  to 
tlie  king.^  Hence,  if  either  proved  recreant  to  the 
o))ligations  he  owed  to  his  king  or  the  lord  or  master, 
lie  was  guilty  of  treason.  In  the  soil  of  our  institutions, 
such  plants  cannot  grow,  for  tlie  reason  that  we  have 
no  king,  and  for  the  reason  that  we  have  come  to  place 
woman  upon  a  plane  witli  tlic  men.  In  fact,  tliere  was  at 
common  law  no  reason  for  the  petit  treason,  because 
llie  wife  was  punished  for  murder  only  and  not  for 
treason;  and  so  was  the  servant  for  the  killing  of  the 

1—4   ninrk.   7r,-H(K 

668 


Treason  669 

master.  So  in  fact  there  was  no  petit  treason.  The  term 
petit  treason,  denoted  a  social  position — a  position  of  in- 
feriority and  servitude — of  duties  and  obligations.  In 
our  country  the  tlieoiy  of  law  is,  that  all  persons  are  equal 
in  all  things — except  that  the  wife  in  many  jurisdictions 
has  restrictions  placed  upon  her  as  to  the  right  to  hold 
and  dispose  of  her  property — but  as  to  the  operation  of 
the  criminal  law,  all  are  equal.  The  principle  of  the  com- 
mon law,  as  to  high  treason,  especially  in  the  sense  that 
it  is  a  crime  against  Government,  applies  with  equal  force 
to  all  governments.  The  right  of  the  government  to 
protect  itself  against  the  machinations  and  subversive 
acts  of  its  citizens  and  its  enemies,  looking  to  its  impair- 
ment or  destruction,  is  inherent.  We  believe  that  all 
political  economists  hold  as  an  abstract  proposition,  that 
the  highest  obligation  of  the  citizen,  is  to  uphold  and  de- 
fend his  government,  and  all  certainly  agree  that  the  gov- 
ernment has  the  right  to  demand  and  the  power  to  en- 
force obedience  to  its  laws. 


CHAPTER  XLVIII 

UNLAWFUL  ASSEMBLIES 

§  725.  Definition  and  explanation. 
§  726.  This  offense  as  disturbance  of 
the    peace. 

§  725.  Definition  and  explanation.  An  unlawful  assem- 
bly is  the  meeting  together  of  three  or  more  persons  for 
the  pui'pose  of  doing  some  unlawful  act  or  in  disturbing 
the  peace  in  a  tumultuous  manner,  to  the  terror  of  the 
people.*  The  gist  of  the  offense  is  the  meeting  together  of 
three  or  more  persons  with  the  intent  to  do  some  unlawful 
act.  The  intention  may  not  be  to  do  any  particular  un- 
lawful act,  it  is  sufficient  that  some  thing  unlawful  is  in- 
tended to  be  done.  It  is  not  necessary  that  there  should 
as  a  matter  of  fact  be  any  unlawful  act  committed  by  the 
body  or  any  one  of  them.  Two  elements  appear  to  be 
necessary  to  complete  the  crime.  1.  The  intent  to  do 
something  the  law  looks  upon  as  being  reprehensible.  2. 
The  meeting  of  three  or  more  together  with  such  intent. 
Closely  allied  to  this  offense,  is  that  of  rout  and  riot. 
To  be  exact,  an  unlawful  assembly  is  the  meeting  together 
of  three  or  more  persons,  under  such  circumstances,  and 
accompanied  with  such  disturbing  manifestations  as  to 
terrorize  and  otherwise  frighten  the  people  having  no 
ostensible  legal,  moral,  or  beneficial  purpose  in  view. 
Rout  seems  to  be  veiy  well  defined  as  the  noisy  and  up- 
roarious procession  of  an  unlawful  assembly  on  its  route 
to  execute  the  judgment  and  decree  of  the  assembly.* 
Riot  is  the  execution  of  the  judgment  and  the  decree  of 
the  unlawful  assembly.    The  common  law  offense  of  rout 

1 — Spires    v.    People,    3    Am.    St.  for   the   purpose   of   beating  D   who 

Rep.  329.  lives   a   mile    off;    they    go    to    D's 

2 — State  V.  Su.nncr,  2  Spccr.  JiOO ;  .-md   l>cat   him.     At   A 's  house  it  is 

Ju.sfico    Stevens    illustrpted    as    fol-  an   unlawful  assembly,   on   the  road 

lows:   ,\,  R  ;i?ul  ('  mfot  a1   ;\ 's  housi'  if  is  ;i  rout  and  the  attack  is  a  Riot. 

670 


Unlawful  Assemblies  671 

and  riot  must  proceed  from  an  unlawful  assembly  as  a 
predicate.  Riot  must  be  participated  in  by  at  least  three 
persons,  and  they  must  have  a  common  purpose,  and  their 
acts  directed  to  the  same  end  jointly,  although  they  sep- 
arately perform  different  parts  of  the  common  purpose. 
All  persons  engaged  in  these  offenses  are  principals  and 
punished  alike.^  But  where  there  are  other  crimes  grow- 
ing out  of  the  unlawful  acts,  such  as  homicide  and  the 
like,  the  rioters  will  be  guilty  as  principals,  especially 
so  if  there  was  an  intent  to  kill. 

§  726.  This  offense  as  a  disturbance  of  the  peace.  Re- 
ally this  offense  includes  within  its  scope  all  meetings  of 
tlirco  or  more  persons,  who  assemble  with  a  common  in- 
tent and  purpose  of  tumultuously  proclaiming  their 
intent  to  incite  and  advise  others  to  acts  of  violence.  It 
is  in  the  nature  of  a  conspiracy  participated  in  by  three 
or  more.  Under  the  statute  of  the  state  of  New  York 
which  in  terms  provides  that  *  *  in  order  to  constitute  the 
crime  of  unlawful  assembly,  three  or  more  persons,  being 
assembled,  should  attempt,  or  threaten  any  act  tending 
toward  a  breach  of  the  peace,  or  an  injury  to  person  or 
property,  or  any  unlawful  act."  Held  that  the  offense 
can  be  only  committed  when  there  is  a  concert  or  combi- 
nation of  three  or  more  persons  who  unite  in  the  attempt 
or  in  the  threat  to  do  one  or  more  of  the  things  provided 
and  specified  in  the  statute."  ''A  threat  made  by  one  or 
by  two  persons  only,  in  which  no  others  participate, 
would  not  be  indictable  under  this  statute,  although  made 
in  the  assembly  of  many  persons.  It  was  also  the  rule  at 
the  common  law  that  three  or  more  persons  should  be 
assembled  and  participate  in  the  unlawful  purpose  in 
order  to  constitute  the  offense  of  unlawful  assembly,  or 
the  cognate  offenses  of  rout  and  riot."  If  one  person 
make  a  threat  then  it  must  be  shown  that  at  least  two 

3— state  V.  Brizil,  Eice  257;  Scott 
V.  United  States,  Morris  142. 


672  Criminal  Law 

others  participated,  and  adopted  it  by  their  act  and  con- 
duct.* "If  any  person  encourages,  promotes,  or  takes 
part  in  riots,  whether  by  words,  signs  or  gestures,  or  by 
wearing  the  badge  or  ensign  of  the  rioters,  he  himself  is 
to  be  considered  a  rioter. "  ^  It  seems  that  this  may  be 
proved  by  the  applause  given  by  others  while  one  of  the 
party  is  delivering  phillipics  or  the  utterance  of  threats 
against  others,  or  the  advising  of  resorting  to  unlawful 
means  to  relieve  a  supposed  grievance.^ 

4_People  V.  Most,  128  N.  Y.  108,  6— Sijies  v.  People,  3  Am.  St.  Rep. 

26  Am.  St.  Eep.  453.  320,  and  note. 

o^Clifford   V.   Brandon,   2   Camp. 
370;   adopted  in  the  above  case. 


A  FOREWORD 


The  succeeding  jjages  are  an  attempt  to  gather  together 
all  the  General  Federal  Criminal  Laws.  No  attempt  has 
been  made  to  give  the  laws  applicable  to  the  District  of 
Columbia,  Hawaii,  Porto  Kico,  the  Philippine  Islands, 
Alaska,  the  National  Parks,  or  any  other  which  relate 
to  our  foreign  jurisdiction. 

No  attempt  has  been  made  to  cite  the  several  changes 
through  which  any  act  has  passed,  but  the  intention  has 
been  to  give  citation  to  the  particular  act,  so  that  it 
may  be  located  as  the  last  expression  of  Congress,  by 
reference  to  the  Act  and  the  Statute  at  Large  where  it 
may  be  found. 

The  Criminal  Code  has  been  preserved  as  in  the  original 
Act. 

Several  of  the  more  recent  acts  have  been  copied  in 
full,  such  as  the  National  Prohibition  Act,  the  Espionage, 
Search  Wan-ant,  and  some  others.  Offenses  relating 
to  the  same  general  subject  have  been  grouped  together 
in  the  same  chapter,  such  as  the  chapter  of  Interstate 
Commerce  and  the  National  Prohibition  Act,  and  Com- 
mon Carriers. 

The  index  refers  to  the  Criminal  Code  sections  as  car- 
ried into  the  section  of  this  book,  and  thus  readily  located. 

J.  E.  G. 


C.  L.— 43 


PART  III 

The  Criminal  Statutes  of  the  United  States  of  a 
General  Nature. 

This  includes  Criminal  Code,  Act  of  March  4,  1909, 
and  all  other  criminal  violations,  which  relate  to  the 
United  States  proper. 

The  local  laws  relating  to  the  District  of  Columbia, 
Hawaii,  Porto  Rico,  the  Philippine  Islands  and  Alaska, 
and  such  as  regulate  the  several  National  Parks  is  not 
given. 

Arranged  in  thirty-nine  chapters.  The  Crimi- 
nal Code  is  preserved  entire,  as  in  the  original 
enactment.  The  chapters  have  been  subdivided 
to  suit  the  arrangement  of  the  chapters  of  this 
book. 

The  index  to  the  Criminal  Code  is  the  same  as 
that  in  35  Statutes  at  Large  and  the  same  plan  is 
followed  through  the  entire  Index. 


PART  THREE 


CHAPTER  XLIX 

OFFENSES  RELATING  TO  AGENTS  ABROAD 


727.  Making  false  oath  or  account 

by  consular  officer,  perjury. 

728.  Consular  officers  must  account 

for  all  moneys,  penalty  em- 
bezzlement. 

729.  Consul    or    commercial    agent 

must   perform    duties,   neg- 
lect, penalty. 

730.  False    certificate    by    consul, 

vice  consul  or  agent  as  to 
property,  punishment. 

731.  Perjury    may    be    committed 


before  a  Secretary  of  Lega- 
tion and  Consular  officer 
and  may  be  prosecuted  in 
any  district  of  U.  S. 

§  732.  Assaulting  public  minister  of 
the  U.  S.,  penalty. 

§  733.  Writ  of  process  sued  out 
against  foreign  minister. 

§  734.  Person  suing  out  process 
against  public  foreign  min- 
ister deemed  violator  of 
public    peace,    punishment. 


§  727.  Making  false  oath  or  account  by  consular  officer, 
perjury.  Every  consular  officer,  in  rendering  his  account 
of  fees  received  shall  furnish  a  full  transcript  of  the  reg- 
ister which  he  is  required  to  keep,  and  make  oath  that,  to 
the  best  of  his  knowledge,  the  same  is  true,  and  contains 
a  full  and  accurate  statement  of  all  fees  received  by  him, 
or  for  his  use,  for  his  official  services  as  such  consular 
officer,  during  the  period  for  which  it  purports  to  be  ren- 
dered. Such  oath  may  be  taken  before  any  person  hav- 
ing authority  to  administer  oaths  at  the  port  or  place 
where  the  consular  office  is  located.  If  any  such  consular 
officer  wilfully  and  corruptly  commits  perjury,  in  any 
such  oath,  within  the  intent  and  meaning  of  any  Act  of 
Congress  now  or  hereafter  made,  he  may  be  charged,  pro- 
ceeded against,  tried  and  convicted,  and  dealt  with  in  the 
same  manner,  in  all  respects,  as  if  such  offense  had  been 
committed  in  the  United  States,  before  any  officer  duly 

675 


676  Criminal  Law 

authorized  tliorein  to  administer  or  take  such  oath,  and 
shall  be  subject  to  the  same  punishment  and  disability 
therefor  as  are  or  shall  be  prescribed  for  such  offense.^ 

§  728.  Consular  officers  must  account  for  all  moneys — 
Penalty,  embezzlement.  Every  consular  officer  who  wil- 
.fully  neglects  to  render  true  and  just  quarterly  accounts 
and  returns  of  the  business  of  his  office,  and  of  moneys 
received  by  him  for  the  use  of  the  United  States,  or  who 
neglects  to  pay  over  any  balance  of  said  moneys  due  to 
the  United  States  at  the  expiration  of  any  quarter,  before 
the  expiration  of  the  next  succeeding  quarter,  or  w^ho 
shall  receive  money,  property,  or  effects  belonging  to  a 
citizen  of  the  United  States  and  shall  not  within  a  reason- 
able time  after  demand  made  upon  him  hj  the  Secretaiy 
of  State  or  by  such  citizen,  his  executor,  administrator, 
or  legal  representative,  account  for  and  pay  over  all 
moneys,  property,  and  effects,  less  his  lawful  fees,  due  to 
such  citizen,  shall  be  deemed  guilty  of  embezzlement,  and 
shall  be  punishable  by  imprisonment  for  not  more  than 
five  years,  and  by  a  fine  of  not  more  than  two  thousand 
dollars.^ 

§  729.  Consul  or  commercial  agent  must  perform  du- 
ties; neglect,  penalty.  If  any  consul  or  commercial  agent 
neglects  or  omits  to  perfonn,  seasonable,  the  duties  im- 
posed upon  him  by  the  laws  regulating  the  shipment  and 
discharge  of  seamen,  and  the  reclamation  of  deserters  on 
board  or  from  vessels  in  foreign  ports,  or  is  guilty  of  any 
Tiialvorsation  or  abuse  of  power  he  shall  be  liable  to  any 
injured  fjcrsoii  for  all  damage  occasioned  thereby;  and 
for  all  malversation  and  coiTupt  conduct  in  office,  lie  shall 
be  punishable  by  imprisonment  for  not  more  than  five 
years  and  not  less  tlian  one,  and  by  a  fine  not  more  than 

1— R.  R.  1728,  11  Stat.  58. 
2— R.  R.  1734,  Act   Dec.  Lit.   1898, 
3')    Stat.    771. 


Offenses  Relating  to  Agents  Abroad  677 

ten  thousand  dollars  and  not  less  than  one  thousand 
dollars.^ 

§  730.  False  certificate  by  consul,  vice-consul  or  agent 
as  to  property — Punishment.  If  any  consul,  vice-consul, 
commercial  agent,  or  vice-commercial  agent  falsely  and 
knowingly  certifies  that  property  belonging  to  foreigners 
is  property  belonging  to  citizens  of  the  United  States,  he 
shall  be  punishable  by  imprisonment  for  not  more  than 
three  years  and  by  a  fine  of  not  more  than  ten  thousand 
dollars.* 

§  731.  Perjury  may  be  committed  before  a  secretary 
of  legation  and  consular  officer  and  may  be  prosecuted  in 
any  district  of  U.  S.  Every  secretary  of  legation  and  con- 
sular officer  is  hereby  authorized,  whenever  he  is  required 
or  deems  it  necessary  or  proper  so  to  do,  at  the  post,  port, 
place,  or  within  the  limits  of  his  legation,  consulate,  or 
commercial  agency,  to  administer  to  or  take  from  any 
person  an  oath,  affirmation,  affidavit,  or  deposition,  and  to 
perform  any  notarial  act  which  any  notary  public  is  re- 
quired or  authorized  by  law  to  do  within  the  United 
States.  Every  such  oath,  affirmation,  affidavit,  deposition, 
and  notarial  act  administered,  sworn,  affirmed,  taken, 
had  or  done,  by  or  before  any  such  officer,  when  certified 
under  his  hand  and  seal  of  office,  shall  be  as  valid,  and  of 
like  force  and  effect  within  the  United  States,  to  all  in- 
tents and  purposes,  as  if  administered,  sworn,  affirmed, 
taken,  had  or  done,  by  or  before  any  other  person  within 
the  United  States  duly  authorized  and  competent  thereto. 
If  any  person  shall  wilfully  and  corruptly  commit  per- 
jury, or  by  any  means  procure  any  person  to  commit  per- 
jury in  any  such  oath,  affirmation,  affidavit,  or  deposition, 
within  the  intent  and  meaning  of  any  act  of  Congress  now 
or  hereafter  made,  such  offender  may  be  charged,  pro- 
ceeded against,  tried,  convicted,  and  dealt  with  in  any 

3— E.  S.  1736,  5.  Stat.  397.  4— R.  S.  1737,  2  Stat.  204. 


678  Criminal  Law 

district  of  the  United  States,  in  the  san\e  manner,  in  all 
respects,  as  if  such  offense  had  been  committed  in  the 
United  States,  before  anj-  officer  duly  authorized  therein 
to  administer  or  take  such  oath,  affirmation,  affidavit,  or 
deposition,  and  shall  be  subject  to  the  same  punishment 
and  disability  therefor  as  are  or  shall  be  prescribed  by 
any  such  act  for  such  offense;  and  any  document  pui-port- 
ing  to  have  affixed,  impressed  or  subscribed  thereto  or 
thereon  the  seal  and  signature  of  the  officer  administer- 
ing or  taking  the  same  in  testimony  thereof,  shall  be 
admitted  in  evidence  without  proof  of  any  such  seal  or 
signature  being  genuine  or  of  the  official  character  of  such 
person;  and  if  any  person  shall  forge  any  such  seal  or 
signature,  or  shall  tender  in  evidence  any  such  docu- 
ment with  a  false  or  counterfeit  seal  or  signature  thereto, 
knowing  the  same  to  be  false  or  counterfeit,  he  shall  be 
deemed  and  taken  to  be  guilty  of  a  misdemeanor,  and  on 
conviction  shall  be  imprisoned  not  exceeding  three  years 
nor  less  than  one  year,  and  fined  in  a  sum  not  to  exceed 
three  thousand  dollars,  and  may  be  charged,  proceeded 
against,  tried,  convicted,  and  dealt  with  therefor,  in  the 
district  where  he  may  be  arrested  or  in  custody.^ 

§  732.  Assaulting  public  minister  of  the  United  States 
— Penalty.  Every  person  who  violates  any  safe  conduct 
or  passport  duly  obtained  and  issued  under  authority  of 
the  United  States;  or  who  assaults,  strikes,  wounds,  im- 
prisons, or  in  any  other  manner  offers  violence  to  tlie  per- 
son of  a  public  minister,  in  violation  of  the  law  of  nations, 
shall  be  imprisoned  for  not  more  than  three  years,  and 
fined,  at  the  discretion  of  the  court.^ 

§  733.  Writ  or  process  sued  out  against  foreign  min- 
ister— Void.    Whenever  any  writ  or  process  is  sued  out 

5— 1{.  8.  1750,  11  Stat.  61. 
6— ]{.  S.  4062,  Act  Apr.  30,  1790, 
1  Stat.   118. 


Offenses  Relating  to  Agents  Abroad  679 

or  prosecuted  by  any  person  in  any  court  of  the  United 
States,  or  of  a  State,  or  by  any  judge,  whereby  the  person 
of  any  public  minister  of  any  foreign  prince  or  State, 
authorized  and  received  as  such  by  the  President,  or  any 
domestic  or  domestic  servant  of  any  such  minister,  is 
arrested  or  imprisoned,  or  his  goods  or  chattels  are  dis- 
trained, seized,  or  attached,  such  writ  or  process  shall 
be  deemed  voidJ 

§  734.  Person  suing  out  process  against  public  foreign 
minister  deemed  violator  of  public  peace — Punishment. 
Whenever  any  writ  or  process  is  sued  out  in  violation 
of  the  preceding  section,  every  person  by  whom  the  same 
is  obtained  or  prosecuted,  whether  as  party  or  as  attor- 
ney or  solicitor,  and  every  officer  concerned  in  executing 
it  shall  be  deemed  a  violator  of  the  laws  of  nations  and  a 
disturber  of  the  public  repose,  and  shall  be  imprisoned 
for  not  more  than  three  years,  and  fined  at  the  discretion 
of  the  court.^ 

7— E.  S.  4063.  Act  Apr.  30,  1790,  8— E.  S.  4064,  Act  Apr.  30,  1790, 
1  Stat.  117.  1  Stat.  118. 


CHAPTER  L 

PROVISIONS  RELATING   TO   BIRDS 

§  735.  Migratory    and    insectivorous  §  739.  Arrest  for  violations. 

birds    shall    be    under    the  §  740.  Punishments  for  violations. 

protection    of    the    govern-  §  741.  Open  season. 

ment  and  unlawful  to  kill,  §  742.  Taking,  etc.,  for  scientific  or 

punishment.  breeding  purposes. 

8  736.  Migratory    Bird    Treaty    Act,  §  743.  Invalidity   of   any   clause. 

Acts  relating  to  migratory  §  744.  Inconsistent  laws  repealed. 

birds,  unlawful.  §  745.  Breeding   on   farms   not   pro- 
§  737.  Regulation   allowing  hunting,  hibited. 

§  738.  Shipments    contrary    to    state 

laws,   prohibited. 

§  735.  Migratory  and  insectivorous  birds  shall  be  under 
the  protection  of  the  government  and  unlawful  to  kill — 
Punishment.  All  wild  geese,  wild  swans,  brant,  wild 
ducks,  snipe,  plover,  woodcock,  rail,  wild  pigeons,  and  all 
other  migratory  game  and  insectivorous  birds  which  in 
their  northern  and  southern  migrations  pass  through  or 
do  not  remain  permanently  the  entire  year  within  the 
borders  of  any  State  or  Territoiy,  shall  hereafter  be 
deemed  to  be  within  the  custody  and  protection  of  the 
Government  of  the  United  States,  and  shall  not  be  de- 
stroyed or  taken  contrary  to  regulations  hereinafter  pro- 
vided therefor. 

The  Department  of  Agriculture  is  hereby  authorized 
and  directed  to  adopt  suitable  regulations  to  give  effect 
to  the  previous  paragraph  by  prescribing  and  fixing 
clo.sed  seasons,  having  due  regard  to  the  zones  of  tem- 
perature, breeding  habits  and  times  and  line  of  migratory 
fliglil  tli('re])y  oiia1)rnig  the  dopartnient  to  select  and  des- 
ignate suital)lo  districts  for  diiTerent  portions  of  the 
country,  and  it  shall  be  unlawful  to  shoot  or  by  any  de- 

680 


Provisions  Relating  to  Bieds  681 

vice  kill  or  seize  and  capture  migratory  birds  within  the 
protection  of  this  law  during  said  closed  seasons,  and 
any  person  who  shall  violate  any  of  the  provisions  or 
regulations  of  this  law  for  the  protection  of  migratory 
birds  shall  be  guilty  of  a  misdemeanor  and  shall  be  fined 
not  more  than  $100  or  imprisoned  not  more  than  ninety 
days,  or  both,  in  the  discretion  of  the  court. 

The  Department  of  Agriculture,  after  the  preparation 
of  said  regulations,  shall  cause  the  same  to  be  made 
public,  and  shall  allow  a  period  of  three  months  in  which 
said  regulations  may  be  examined  and  considered  before 
final  adoption,  permitting,  when  deemed  proper,  public 
hearings  thereon,  and  after  final  adoption,  shall  cause  the 
same  to  be  engrossed  and  submitted  to  the  President  of 
the  United  States  for  approval:  Provided,  however,  That 
nothing  herein  contained  shall  be  deemed  to  affect  or 
interfere  with  the  local  laws  of  the  States  and  Territories 
for  the  protection  of  non-migratory  game  or  other  birds 
resident  and  breeding  within  their  borders,  nor  to  pre- 
vent the  States  and  Territories  from  enacting  laws  and 
regulations  to  promote  and  render  efficient  the  regula- 
tions of  the  Department  of  Agriculture  provided  under 
this  statute.^ 

MIGKATOEY  BIED  TEEATY  ACT 

§  736.  Acts  relating  to  migratory  birds,  unlawful.  Sec. 
2.  That  unless  and  except  as  permitted  by  regulations 
made  as  hereinafter  provided,  it  shall  be  unlawful  to 
hunt,  take,  capture,  kill,  attempt  to  take,  capture  or  kill, 
possess,  offer  for  sale,  sell,  offer  to  purchase,  purchase, 
deliver  for  shipment,  ship,  cause  to  be  shipped,  deliver 
for  transportation,  transport,  cause  to  be  transported, 
carry  or  cause  to  be  carried  by  any  means  whatever,  re- 
ceive for  shipment,  transportation  or  carriage,  for  export, 

1— Act    Mar.    4,    1913,    37    Stat. 
847. 


682  Ckiminal  Law 

at  any  time  or  in  any  manner,  any  migratorj'-  bird,  in- 
cluded in  the  tonus  of  the  convention  between  the  United 
States  and  Great  Britain  for  the  protection  of  migratory 
birds  conchided  August  sixteenth,  nineteen  hundred  and 
sixteen,  or  any  part,  nest,  or  egg  of  any  such  bird. 

§  737.  Regulation  allowirg  hunting.  Sec.  3.  That  sub- 
ject to  the  provisions  and  in  order  to  carry  out  the  pur- 
poses of  the  convention,  the  Secretary  of  Agriculture  is 
authorized  and  directed  from  time  to  time,  having  due 
regard  to  the  zones  of  temperature  and  to  the  distribu- 
tion, abundance,  economic  value,  breeding  habits,  and 
times  and  lines  of  migratoiy  flight  of  such  birds,  to  deter- 
mine w^hen,  to  what  extent,  if  at  all,  and  by  what  moans, 
it  is  compatible  with  the  terms  of  the  convention  to  allow 
hunting,  taking,  capture,  killing,  possession,  sale,  pur- 
chase, shipment,  transportation,  carriage,  or  export  of 
any  such  bird,  or  any  part,  nest,  or  egg  thereof,  and  to 
adopt  suitable  regulations  pennitting  and  governing  the 
same,  in  accordance  with  such  determinations,  which  reg- 
ulations shall  become  eifective  when  approved  by  the 
President. 

§  738.  Shipments  contrary  to  state  laws,  prohibited. 
Sec.  4.  That  it  shall  be  unlawful  to  ship,  transport,  or 
csirry,  b}^  any  means  whatever,  from  one  State,  Territory, 
or  District  to  or  through  a  foreign  country,  any  bird,  or 
any  part,  nest,  or  egg  thereof,  captured,  killed,  taken, 
shipped,  transported,  or  carried  at  any  time  contrary  to 
the  laws  of  the  State,  Territoiy,  or  District  in  which  it 
was  captured,  killed,  or  taken,  or  from  which  it  was 
shipfied,  transported,  or  carried.  It  shall  be  unlawful  to 
iiii[)()rt  any  bird,  or  any  part,  nost,  or  egg  thereof,  cap- 
tured, kiHed,  taken,  shipped,  transported,  or  carried  con- 
trary to  llie  laws  of  any  Province  of  the  Dominion  of 
Canada  in  which  the  same  was  captured,  killed,  or  taken, 
or  from  wliicli  it  was  sliipped,  transported,  or  carried. 


Provisions  Relating  to  Birds  683 

§  739.  Arrest  for  violations.  Sec.  5.  That  any  em- 
ployee of  the  Department  of  Agriculture  authorized  by 
the  Secretaiy  of  Agriculture  to  enforce  the  provisions  of 
this  Act  shall  have  power,  without  warrant,  to  arrest 
any  person  committing  a  violation  of  this  Act  in  his  pres- 
ence or  view  and  to  take  such  person  immediately  for 
examination  or  trial  before  an  officer  or  court  of  com- 
petent jurisdiction ;  shall  have  power  to  execute  any  war- 
rant or  other  process  issued  by  an  officer  or  court  of 
competent  jurisdiction  for  the  enforcement  of  the  pro- 
vision of  this  Act;  and  shall  have  authority,  with  a 
search  warrant,  to  search  any  place.  The  several  judges 
of  the  courts  established  under  the  laws  of  the  United 
States,  and  United  States  commissioners,  may,  within 
their  respective  jurisdictions,  upon  proper  oath  or  affir- 
mation showing  probable  cause,  issue  warrants  in  all  such 
cases.  All  birds,  or  parts,  nests,  or  eggs  thereof,  cap- 
tured, killed,  taken,  shipped,  transported,  carried,  or  pos- 
sessed contrary  to  the  provisions  of  this  Act  or  of  any 
regulations  made  pursuant  thereto  shall,  when  found,  be 
seized  by  any  such  employee,  or  by  any  marshal  or  deputy 
marshal,  and  upon  conviction  of  the  offender  or  upon 
judgment  of  a  court  of  the  United  States  that  the  same 
were  captured,  killed,  taken,  shipped,  transported,  car- 
ried, or  possessed  contrary  to  the  provisions  of  this  Act 
or  of  any  regulation  made  pursuant  thereto,  shall  be  for- 
feited to  the  United  States  and  disposed  of  as  directed 
by  the  court  having  jurisdiction. 

§  740.  Punishments  for  violations.  Sec.  6.  That  any 
person,  association,  partnership,  or  corporation  who  shall 
violate  any  of  the  provisions  of  said  convention  or  of  this 
Act,  or  who  shall  violate  or  fail  to  comply  with  any  regu- 
lation made  pursuant  to  this  Act,  shall  be  deemed  guilty 
of  a  misdemeanor  and  upon  conviction  thereof  shall  be 
fined  not  more  than  $500,  or  be  imprisoned  not  more  than 
six  months,  or  both. 


684  Criminal  Law 

§  741.  Open  season.  Sec.  7.  That  nothing-  in  this  Act 
shall  be  const med  to  prevent  the  several  States  and  Ter- 
ritories from  making  or  enforcing  laws  or  regulations 
not  inconsistent  with  the  provisions  of  said  convention 
or  of  this  Act,  or  from  making  or  enforcing  laws  or  regu- 
lations which  shall  give  further  protection  to  migi*atory 
birds,  their  nests,  and  eggs,  if  such  laws  or  regulations  do 
not  extend  the  open  seasons  for  such  birds  beyond  the 
dates  approved  by  the  President  in  accordance  with  sec- 
tion three  of  this  Act. 

§  742.  Taking,  etc.,  for  scientific  or  breeding  purposes. 

Sec.  8.  That  until  the  adoption  and  approval,  pursuant 
to  section  three  of  this  Act,  of  regulations  dealing  with 
migratory  birds  and  their  nests  and  eggs,  such  migratory 
birds  and  their  nests  and  eggs  as  are  intended  and  used 
exclusively  for  scientific  or  propagating  purposes  may 
be  taken,  captured,  killed,  possessed,  sold,  purchased, 
shipped,  and  transported  for  such  scientific  or  propa- 
gating purposes  if  and  to  the  extent  not  in  conflict  with 
the  laws  of  the  State,  Territory,  or  District  in  which  they 
are  taken,  captured,  killed,  possessed,  sold,  or  purchased, 
or  in  or  from  which  they  are  shipped  or  transported  if 
the  packages  containing  the  dead  bodies  or  the  nests  or 
eggs  of  such  birds  when  shipped  and  transported  shall  be 
marked  on  the  outside  thereof  so  as  accurately  and 
clearly  to  show  the  name  and  address  of  the  shipper  and 
contents  of  the  package. 

Sec.  9.  That  the  unexpended  balances  of  any  sums 
ap])ropriated  by  the  agricultural  appropriation  Acts  for 
the  fiscal  years  nineteen  hundred  and  seventeen  and  nine- 
teen hundred  and  eighteen,  for  enforcing  the  provisions 
of  the  Act  approved  March  fourlli,  iiiiic(o(Mi  hundred  and 
tliirfeon,  relaliiig  to  the  protection  of  migratoiy  game  and 
insectivorous  ])irds,  are  hereby  reap]n-oi)riated  and  made 
available  inilil  expended  for  the  expenses  of  carrying 
into  effect  the  provisions  of  this  Act  and  regulations  made 


Provisions  Relating  to  Birds  '        685 

pursuant  thereto,  including  the  payment  of  such  rent,  and 
the  employment  of  such  persons  and  means,  as  the  Secre- 
tary of  Agriculture  may  deem  necessaiy,  in  the  District 
of  Columbia  and  elsewhere,  cooperation  with  local  au- 
thorities in  the  protection  of  migratory  birds,  and  neces- 
sary investigations  connected  therewith:  Provided,  That 
no  person  who  is  subject  to  draft  for  service  in  the  army 
or  navy  shall  be  exempted  or  excused  from  such  service 
by  reason  of  his  employment  under  this  Act. 

§  743.  Invalidity  of  any  clause.  Sec.  10.  That  if  any 
clause,  sentence,  paragraph,  or  part  of  this  Act  shall,  for 
any  reason,  be  adjudged  by  any  court  of  competent  juris- 
diction to  be  invalid,  such  judgment  shall  not  affect,  im- 
pair, or  invalidate  the  remainder  thereof,  but  shall  be  con- 
fined in  its  operation  to  the  clause,  sentence,  paragraph, 
or  part  thereof  directly  involved  in  the  controversy  in 
which  such  judgment  shall  have  been  rendered. 

§  744.  Inconsistent  laws  repealed.  Sec.  11.  That  all 
Acts  or  parts  of  Acts  inconsistent  with  the  provisions  of 
this  Act  are  hereby  repealed. 

§  745.  Breeding  on  farms  not  prohibited.  Sec.  12. 
Nothing  in  this  Act  shall  be  construed  to  prevent  the 
breeding  of  migratory  birds  on  farms  and  preserves  and 
the  sale  of  birds  so  bred  under  proper  regulation  for  the 
purpose  of  increasing  the  food  supply. 

Sec.  13.  That  this  Act  shall  become  effective  immedi- 
ately upon  its  passage  and  approval. 

Act  of  Congress,  July  3,  1918.  Part  1,  40  U.  S.  Stat,  at 
Large,  pages  755-756  and  757. 


CHAPTER  LI 

ADMIRALTY  AND  MARITIME  JURISDICTION 
CHAPTER  ELEVEN 

Offenses  Within  tue  Admiralty  and  Maritime  and  the  Territorial 
Jurisdiction  of  the  United  States 

Penal  Code  Act,  March  4,  1909 


§  746. 


§747. 
§748. 
§749. 

§750. 


§751. 

§752. 
§753. 

§754. 


Places  ■within  or  waters  upon 
which  sections  of  this  chap- 
ter shall  apply. 

Murder, 

Manslaughter. 

Punishment  for  murder;  for 
manslaughter. 

Assault  with  intent  to  com- 
mit murder,  rape,  robbery, 
etc. 

Attempt  to  commit  murder 
or  manslaughter. 

Rape. 

Having  carnal  knowledge  of 
female  under  sixteen. 

Seduction  of  female  passen- 
ger on  vessel. 


§755. 


§  756. 

§757. 
§758. 
§759, 
§  760, 
§761, 
§762, 
§763, 


Payment  of  fine  to  female  se- 
duced ;  evidence  required ; 
limitation  on  indictment. 

Loss  of  life  by  misconduct  of 
ofl&cers,  etc.,  on  vessels. 

Maiming. 

Robbery. 

Arson   of  dwelling  houses. 

Arson  of  other  buildings,  etc. 

Larceny. 

Receiving,  etc.,   stolen  goods. 

Laws  of  States  adopted  for 
punishing  wrongful  acts, 
etc. 


§  746.  Maritime  and  territorial  jurisdiction  prescribed. 
Sec.  272.  Tho  ci-iincs  and  offenses  dofiiied  in  this  chapter 
sliall  b(!  ])niiislicd  as  herein  prescribed: 

First — When  committed  n])on  the  hii;h  seas,  or  on  any 
otlier  waters  within  tlie  admiralty  and  maritime  jurisdic- 
ti(.ii  of  llic  I'nitcd  States  and  out  of  the  jurisdiction  of 
any  i)arti('ular  Slate,  or  wlien  committed  within  the 
admiralty  and  maritime  jurisdiction  of  tlie  United  States 
and  out  of  the  jurisdiction  of  any  particular  State  on 

G86 


Admiralty  and  Maritime  Jurisdiction  687 

board  any  vessel  belonging  in  whole  or  in  part  to  the 
United  States  or  any  citizen  thereof,  or  to  any  corporation 
created  by  or  under  the  laws  of  the  United  States,  or  of 
any  State,  Territory,  or  District  thereof. 

Second — When  committed  upon  any  vessel  registered, 
licensed,  or  enrolled  under  the  laws  of  the  United  States, 
and  being  on  a  voyage  upon  the  waters  of  any  of  the 
Great  Lakes,  namely:  Lake  Superior,  Lake  Michigan, 
Lake  Huron,  Lake  Saint  Clair,  Lake  Erie,  Lake  Ontario, 
or  any  of  the  waters  connecting  any  of  said  lakes,  or 
upon  the  River  Saint  Lawrence  where  the  same  consti- 
tutes the  International  boundary  line. 

Third — When  committed  within  or  on  any  lands  re- 
served or  acquired  for  the  exclusive  use  of  the  United 
States,  and  under  the  exclusive  jurisdiction  thereof,  or 
any  place  purchased  or  othenvise  acquired  by  the  United 
States  by  consent  of  the  legislature  of  the  State  in  which 
the  same  shall  be,  for  the  erection  of  a  fort,  magazine, 
arsenal,  dockyard,  or  other  needful  building. 

Fourth — On  any  island,  rock,  or  key,  containing  de- 
posits of  guano,  which  may,  at  the  discretion  of  the  Presi- 
dent, be  considered  as  appertaining  to  the  United  States. 

§  747.  Murder.  Sec.  273.  Murder  is  the  unlawful  killing 
of  a  human  being  with  malice  aforethought.  Every  mur- 
der perpetrated  by  poison,  lying  in  wait,  or  any  other 
kind  of  wilful,  deliberate,  malicious,  and  premeditated 
killing;  or  committed  in  the  perpetration  of,  or  attempt 
to  perpetrate,  any  arson,  rape,  burglary,  or  robbery;  or 
perpetrated  from  a  premeditated  design  unlawfully  and 
maliciously  to  effect  the  death  of  any  human  being  other 
than  him  who  is  killed,  is  murder  in  the  first  degree.  Any 
other  murder  is  murder  in  the  second  degree. 

§748.  Manslaughter.  Sec.  274.  Manslaughter  is  the 
unlawful  killing  of  a  hmnan  being  without  malice.  It  is 
of  two  kinds : 


688  Criminal  Law 

First.  Voluntaiy — upon  a  sudden  quarrel  or  heat  of 
passion. 

Second.  Involuntary — in  the  commission  of  an  unlaw- 
ful act  not  amounting  to  a  felony,  or  in  the  commission 
of  a  lawful  act  which  might  produce  death,  in  an  unlawful 
manner,  or  without  due  caution  and  circumspection. 

§  749.  Punishment  for  murder;  for  manslaughter.  Sec. 
275.  Every  person  guilty  of  murder  in  the  first  degree  shall 
suffer  death.  Every  person  guilty  of  murder  in  the  second 
degree  shall  be  imprisoned  not  less  than  ten  years  and 
may  be  imprisoned  for  life.  Every  person  guilty  of  volun- 
tary manslaughter  shall  be  imprisoned  not  more  than  ten 
years.  Every  person  guilty  of  involuntaiy  manslaughter 
shall  be  imprisoned  not  more  than  three  years,  or  fined 
not  exceeding  one  thousand  dollars,  or  both. 

§  750.  Assault  with  intent  to  commit  murder,  rape, 
robbery,  etc.  Sue.  27G.  Whoever  shall  assault  another 
w4th  intent  to  commit  murder,  or  rape,  shall  be  impris- 
oned not  more  than  twenty  years.  AVhoever  shall  assault 
another  with  intent  to  commit  any  felony,  except  murder, 
or  rape,  shall  be  fined  not  more  than  three  thousand  dol- 
lars, or  imprisoned  not  more  than  ten  j^ears  or  both. 
Whoever,  with  intent  to  do  bodily  harm,  and  without  just 
cause  or  excuse,  shall  assault  another  with  a  dangerous 
weapon,  instrument,  or  other  thing,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both.  Wlioevor  shall  unlawfully  strike, 
beat,  or  wound  another,  sliall  be  fined  not  more  than  five 
hundred  doHars,  or  im]")risoiied  not  more  than  six  months, 
or  both.  Whoever  slmll  unlawfully  assault  another,  shall 
be  fined  not  more  than  tliree  linndred  dollars,  or  impris- 
oned not  more  than  three  montlis,  or  both. 

§  751.  Attempt  to  commit  murder  or  manslaughter. 
Sec.  277.     A\'lioever  sliall  attemi)t  to  connnit  murder  or 


Admiralty  and  Maritime  Jurisdiction  689 

manslaughter,  except  as  provided  in  the  preceding  sec- 
tion, shall  be  fined  not  more  than  one  thousand  dollars 
and  imprisoned  not  more  than  three  years. 

§  752.  Rape.  Sec.  278.  Whoever  shall  commit  the  crime 
of  rape  shall  suffer  death. 

§  753.  Having  carnal  knowledge  of  female  under  six- 
teen. Sec.  279.  Whoever  shall  carnally  and  unlawfully 
know  any  female  under  the  age  of  sixteen  years,  or  shall 
be  accessoiy  to  such  carnal  and  unlawful  knowledge  be- 
fore the  fact,  shall,  for  a  first  offense,  be  imprisoned  not 
more  than  fifteen  years,  and  for  a  subsequent  offense  be 
imprisoned  not  more  than  thirty  years. 

§  754.  Seduction  of  female  passenger  on  vessel.  Sec. 
280.  Every  master,  officer,  seaman,  or  other  person  em- 
ployed on  board  of  any  American  vessel  who,  during  the 
voyage,  under  promise  of  marriage,  or  by  threats,  or  the 
exercise  of  authority,  or  solicitation,  or  the  making  of 
gifts  or  presents,  seduces  and  has  illicit  connection  w^fth 
any  female  passenger,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year, 
or  both;  but  subsequent  intermarriage  of  the  parties  may 
be  pleaded  in  bar  of  conviction. 

§  755.  Payment  of  fine  to  female  seduced;  evidence  re- 
quired; limitation  on  indictment.  Sec.  281.  AA^ieii  a  per- 
son is  convicted  of  a  violation  of  the  section  last  preced- 
ing, the  court  may,  in  its  discretion,  direct  that  the 
amount  of  the  fine,  when  paid,  be  paid  for  the  use  of  the 
female  so  seduced,  or  her  child,  if  she  have  any;  but  no 
conviction  shall  be  had  on  the  testimony  of  the  female 
seduced,  without  other  evidence,  nor  unless  the  indict- 
ment is  found  within  one  year  after  the  arrival  of  the 
vessel  on  which  the  offense  was  committed  at  the  port  of 
its  destination. 

C.  L.— 44 


69C  Ceiminal  Law 

§  756.  Punishment  for  loss  of  life  by  misconduct  of  of- 
ficers, owners,  charterers,  inspectors,  etc.,  of  vessels. 
Sec.  282.  Every  captain,  engineer,  pilot,  or  other  person 
employed  on  any  steamboat  or  vessel,  by  whose  miscon- 
duct, negligence,  or  inattention  to  his  duties  on  such  ves- 
sel the  life  of  any  person  is  destroyed,  and  every  owner, 
charterer,  inspector,  or  other  public  officer,  through  whose 
fraud,  neglect,  connivance,  misconduct,  or  violation  of 
law  the  life  of  any  person  is  destroyed,  shall  be  fined  not 
more  than  ten  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both:  Provided,  That  when  the  owner 
or  charterer  of  any  steamboat  or  vessel  shall  be  a  corpo- 
ration, any  executive  officer  of  such  corporation,  for  the 
time  being  actually  charged  with  the  control  and  man- 
agement of  the  operation,  equipment,  or  navigation  of 
such  steamboat  or  vessel,  who  has  knowingly  and  wil- 
fully caused  or  allowed  such  fraud,  neglect,  connivance, 
misconduct,  or  violation  of  law,  by  which  the  life  of  any 
person  is  destroj^ed,  shall  be  fined  not  more  than  ten 
thousand  dollars,  or  imprisoned  not  more  than  ten  years, 
orljoth. 

§757.  Maiming-.  Sec.  283.  Whoever,  with  intent  to 
maim  or  disfigure,  shall  cut,  bite,  or  slit,  the  nose,  ear,  or 
lip,  or  cut  out  or  disable  the  tongue,  or  put  out  or  destroy 
an  eye,  or  cut  off  or  disable  a  limb  or  any  member  of 
another  person ;  or  whoever,  with  like  intent,  shall  throw 
or  pour  upon  another  person,  any  scalding  hot  water, 
vitriol,  or  other  corrosive  acid,  or  caustic  substance  what- 
ever, shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  seven  years,  or  both. 

§  758.  Robbery.  Sec.  284.  Whoever,  by  force  and  vio- 
lence, or  by  putting  in  fear,  shall  feloniously  take  from 
the  pci'Hon  or  presence  of  anotlier  anything  of  value,  shall 
be  imprisoned  not  more  than  fifteen  years. 

c.  L.— 44 


Admiralty  and  Maritime  Jurisdiction  691 

§759.  Arson  of  dwelling  house.  Sec.  285.  "Whoever 
shall  wilfully  and  maliciously  set  fire  to,  burn,  or  attempt 
to  bum,  Of  by  means  of  a  dangerous  explosive  destroy  or 
attempt  to  destroy,  any  dwelling  house,  or  any  store, 
barn,  stable,  or  other  building,  parcel  of  a  dwelling  house, 
shall  be  imprisoned  not  more  than  twenty  years. 

§  760.  Arson  of  arsenal,  etc.,  other  building,  etc.  Sec. 
286.  Whoever  shall  maliciously  set  fire  to,  burn,  or  at- 
tempt to  burn,  or  by  any  means  destroy  or  injure,  or 
attempt  to  destroy  or  injure,  any  arsenal,  armory,  mag- 
azine, ropewalk,  shiphouse,  warehouse,  blockhouse,  or 
barrack,  or  any  storehouse,  bam  or  stable,  not  parcel  of 
a  dwelling  house,  or  any  other  building  not  mentioned 
in  the  section  last  preceding,  or  any  vessel  built,  building, 
or  undergoing  repair,  or  any  lighthouse,  or  beacon,  or  any 
machinery,  timber,  cables,  rigging,  or  other  materials 
or  appliances  for  building,  repairing,  or  fitting  out  vessels, 
or  any  pile  of  wood,  boards,  or  other  lumber,  or  any  mili- 
tary, naval,  or  victualing  stores,  arms,  or  other  munitions 
of  war,  shall  be  fined  not  more  than  five  thousand  dollars 
and  imprisoned  not  more  than  twenty  years. 

§  761.  Larceny.  Sec.  287.  Whoever  shall  take  and 
cany  away,  with  intent  to  steal  or  purloin,  any  personal 
property  of  another,  shall  be  punished  as  follows:  If  the 
property  taken  is  of  a  value  exceeding  fifty  dollars,  or  is 
taken  from  the  person  of  another,  by  a  fine  of  not  more 
than  ten  thousand  dollars,  or  imprisonment  for  not  more 
than  ten  years,  or  both ;  in  all  other  cases,  by  a  fine  of  not 
more  than  one  thousand  dollars,  or  by  imprisonment  not 
more  than  one  year  or  both.  If  the  property  stolen  con- 
sists of  any  evidence  of  debt,  or  other  written  instrument, 
the  amount  of  money  due  thereon,  or  secured  to  be  paid 
thereby,  and  remaining  unsatisfied,  or  which  in  any  con- 
tingency might  be  collected  thereon,  or  the  value  of  the 
property  the  title  to  which  is  shown  thereby,  or  the  sum 


692  Ckimixal  Law 

which  might  be  recovered  in  the  absence  thereof,  shall  be 
deemed  to  be  the  value  of  the  property  stolen. 

§  762.  Receiving-,  etc.,  stolen  goods.  Sec.  288.  Whoever 
shall  buy,  receive,  or  conceal,  any  money,  goods,  bank 
notes,  or  other  thing  which  may  be  the  subject  of  larceny, 
which  has  been  feloniously  taken,  stolen,  or  embezzled, 
from  any  other  person,  knowing  the  same  to  have  been 
so  taken,  stolen  or  embezzled,  shall  be  fined  not  more 
than  one  thousand  dollars  and  imprisoned  not  more  than 
three  years;  and  such  person  may  be  tried  either  before 
or  after  the  conviction  of  the  j^rincipal  offender. 

§  763.  Laws  of  states  adopted  for  punishing  wrongful 
acts,  etc.  Sec.  289.  AVhoever,  within  the  territorial  limits 
of  any  State,  organized  Territory,  or  District,  but  within 
or  upon  any  of  the  places  now  existing,  or  hereafter  re- 
served or  acquired,  described  in  section  two  hundred  and 
seventy-two  of  this  act  [746],  shall  do  or  omit  the  doing 
of  any  act  or  thing  whicli  is  not  made  penal  by  any  law 
of  Congress,  but  which  if  committed  or  omitted  within 
the  jurisdiction  of  the  State,  Territory,  or  District  in 
which  such  place  is  situated,  by  the  laws  thereof  now  in 
force  would  be  penal,  shall  be  deemed  guilty  of  a  like 
offense  and  be  subject  to  a  like  punishment;  and  eveiy 
sucli  State,  Territorial,  or  District  law  shall,  for  the  pur- 
poses of  this  section,  continue  in  force,  notwithstanding 
any  subsequent  repeal  or  amendment  thereof  by  any  such 
State,  Territory,  or  District. 


CHAPTER  LII 


VIOLATION  OF  THE  CENSUS  LAWS 


§  764.  All  persons  over  18  years  to 
answer  questions  by  cen- 
sus enumerator,  punishment 
for  inaccurate  information. 

§  765.  Unlawful  use  of  frank  cen- 
sus matter,  punishment. 

§  766.  Willfully  withholding  infor- 
mation by  officer  religious 
organization,  etc.,  to  cen- 
sus   taker. 

§  767.  Census  mail  frank,  illegal 
use  of,  punishment. 

§  768.  Punishment  for  securing  pay 
for  appointment  of  census 
employee,  etc. 

§  769.  Census  employee  neglecting 
duty  without  cause,  false 
swearing,  false  returns,  etc. 


§  770.  Consideration  or  fee  for  ap- 
pointment under  census  act 
illegal,    punishment. 

§  771.  Officers  and  employees  fail- 
ing to  perform  duty  under 
census  act,  punishment. 

§  772.  Persons  over  twenty-one  years 
of  age  required  to  give  in- 
formation to  census  taker. 
Eefusal;    punishment. 

§  773.  Eefusing  information  to  cen- 
sus director  relative  to 
hides,  etc. ;  punishment. 

§  774.  Penalty  for  bribing  officer. 

§  775.  Officers  neglecting  to  perform 
official  duties;    penalty. 

§  776.  Persons  over  twenty-one  years 
must  answer  questions  of 
census  taker;   penalty. 


§  764.  All  persons  over  18  years  to  answer  questions  by 
census  enumerator — Punishment  for  inaccurate  informa- 
tion. That  it  shall  be  the  duty  of  all  persons  over  eighteen 
years  of  age  when  requested  by  the  Director  of  the  Census, 
or  by  any  supei*visor,  enumerator  or  special  agent,  or 
other  employee  of  the  Census  Office,  acting  under  the 
instructions  of  the  said  director,  to  answer  correctly,  to 
the  best  of  their  knowledge,  all  questions  on  the  census 
schedules  applying  to  themselves  and  to  the  families  to 
which  they  belong  or  are  related,  and  to  the  farm  or 
farms  of  which  they  or  their  families  are  the  occupants; 
and  any  person  over  eighteen  years  of  age  who,  under 
the  conditions  hereinbefore  stated,  shall  refuse  or  wilfully 
neglect  to  answer  any  of  these  questions,  or  shall  wilfully 

693 


694  Criminal  Law 

give  answers  that  are  false,  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  fined  not 
exceeding  $100. 

And  it  is  herebj^  made  unlawful  for  any  individual, 
committee,  or  other  organization  of  any  kind  whatsoever, 
to  offer  or  render  to  any  supervisor,  supervisor's  clerk, 
enumerator,  interpreter,  special  agent,  or  other  officer  or 
employee  of  the  Census  Office  engaged  in  making  an 
enumeration  of  population,  either  directly  or  indirectly, 
any  suggestion,  advice,  or  assistance  of  any  kind,  with 
the  intent  or  purpose  of  causing  an  inaccurate  enumera- 
tion of  population  to  be  made,  either  as  to  the  number  of 
persons  resident  in  any  district  or  community,  or  in  any 
other  respect;  and  any  individual,  or  any  officer  or  mem- 
ber of  any  committee  or  other  organization  of  any  kind 
whatsoever,  who  directly  or  indirectly  offers  or  renders 
any  such  suggestion,  advice,  information,  or  assistance, 
with  such  unlawful  intent  or  purpose,  shall  be  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
not  exceeding  $5,000. 

And  it  shall  be  the  duty  of  eveiy  owner,  proprietor, 
manager,  superintendent,  or  agent  of  a  hotel,  apartment 
house,  boarding  or  lodging  house,  tenement,  or  other 
building,  when  requested  by  the  Director  of  the  Census, 
or  by  any  supervisor,  enumerator,  special  agent,  or  other 
employee  of  the  Census  Office,  acting  under  the  instruc- 
tions of  the  said  director,  to  furnish  the  names  of  the 
occupants  of  said  hotel,  apartment  house,  boarding  or 
lodging  house,  tenement,  or  other  building,  and  to  give 
tliereto  free  ingress  and  egress  to  any  duly  accredited  rep- 
resentative of  the  Census  Office,  so  as  to  permit  of  the 
collection  of  statistics  for  census  purposes,  including  the 
proper  and  correct  enumeration  of  all  persons  having 
tlieir  usual  place  of  abode  in  said  liotel,  apartment  house, 
boarding  or  lodging  Jiousc,  tenement  or  other  building; 
and  any  ownor,  proprietor,  manager,  superintendent,  or 
agent  of  a  hotel,  aparlniciit  lionse,  boarding  or  lodging 


V'lOLATION    OF    TILE    CeNSUS    LaWS  695 

house,  tenement,  or  other  building  who  shall  refuse  or 
wilfully  neglect  to  give  such  infomiation  or  assistance 
under  the  conditions  hereinbefore  stated  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be 
fined  not  exceeding  $500.^ 

§  765.  Unlawful  use  of  frank  census  matter,  punish- 
ment. That  all  mail  matter,  of  whatever  class  or  weight, 
relating  to  the  census  and  addressed  to  the  Census  Office, 
or  to  any  official  thereof,  and  indorsed  ' '  Official  business. 
Census  Office,"  shall  be  transmitted  free  of  postage,  and 
by  registered  mail  if  necessary,  and  so  marked:  Pro- 
vided, That  if  any  person  shall  make  use  of  such  indorse- 
ment to  avoid  the  payment  of  postage  or  registry  fee  on 
his  or  her  private  letter,  package,  or  other  matter  in  the 
mail,  the  person  so  offending  shall  be  guilty  of  a  misde- 
meanor and  subject  to  a  fine  of  $300,  to  be  prosecuted  in 
any  court  of  competent  jurisdiction.^ 

§  766.  Wilfully  withholding  information  by  officer  re- 
ligious organization  etc.,  to  census  taker.  That  it  shall 
be  the  duty  of  every  owner,  official,  agent,  person  in 
charge,  or  assistant  to  the  person  in  charge,  of  any  com- 
pany, business,  institution,  establishment,  religious  body, 
or  organization  of  any  nature  whatsoever,  to  answer  com- 
pletely and  correctly  to  the  best  of  his  knowledge  all 
questions  relating  to  his  respective  company,  business, 
institution,  establishment,  religious  body,  or  other  organi- 
zation, or  to  records  or  statistics  in  his  official  custody, 
contained  on  any  census  schedule  prepared  by  the  Di- 
rector of  the  Census  under  the  authority  of  this  Act,  or  of 
the  Act  to  provide  for  a  permanent  Census  Office,  ap- 
proved March  sixth,  nineteen  hundred  and  two,  or  of 
Acts  amendatory  thereof  or  supplemental  thereto;  and 

1— Sec.    23,    Act   March   3,    1919,      40   Stat.    1301.     Also   Sec.    29,   Act 
40   Stat.   1299.  July  2,  1909,  36  Stat.  10. 

2— Sec.    29,   Act    March    3,    1919, 


696  Criminal  Law 

any  person  violating  the  provisions  of  this  section  by  re- 
fusing or  wilfully  neglecting  to  answer  any  of  said  ques- 
tions, or  by  wilfully  giving  answers  that  are  false,  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  fined  not  exceeding  $10,000,  or  imprisoned  for  a 
period  not  exceeding  one  year,  or  both  so  fined  and  im- 
prisoned.^ 

§  767.  Census  mail  frank,  illegal  use  of — Punishment. 
That  all  mail  matter  of  whatever  class  or  weight,  relating 
to  the  census  and  addressed  to  the  Census  Office,  or  to 
any  official  thereof,  and  indorsed  "Official  Business, 
Census  office,"  shall  be  transmitted  free  of  postage,  and 
by  registered  mail  if  necessaiy,  and  so  marked ;  Provided, 
that  if  any  person  makes  use  of  such  indorsement  to 
avoid  postage  or  registry  fees  on  his  or  her  private 
letter,  package  or  other  matter  in  the  mail,  the  person  so 
offending  shall  be  guilty  of  a  misdemeanor  and  subject 
to  a  fine  of  $100,  to  be  proseculcMl  in  any  court  of  com- 
petent jurisdiction.* 

§  768.  Punishment  for  securing-  pay  for  appointment  of 
census  employee,  etc.  That  if  any  person  shall  receive  or 
secure  to  liimsoll'  any  fee,  reward,  or  compensation  as  a 
consideration  for  the  appointment  or  employment  of  any 
person  as  supervisor,  enumerator,  or  clerk,  or  other  em- 
ployee, or  shall  in  any  way  receive  or  secure  to  himself 
any  part  of  the  compensation  paid  to  any  supervisor, 
enumerator,  clerk,  or  other  employee,  he  shall  be  deemed 
guilty  of  a  felony,  and  ui)oii  conviction  thereof  shall  be 
fined  not  more  than  $3,000  and  l)e  imprisoned  not  more 
than  five  years.* 

a— Sec.    24,    Act    March  3,    1!>19,  ."5— Sec.    21,    Act    March    3,    1919, 

40  Stat.  1300.  10  Stat.  1299. 

4— Act    March    3,    1010,  10    Stat. 
1301. 


Violation  of  the  Census  Laws  697 

§  769.  Census  employee  neglecting  duty  without  cause, 
false  swearing-,  false  returns,  etc.  That  any  supervisor, 
supervisor's  clerk,  enumerator,  interpreter,  special  agent, 
or  other  employee  who,  having  taken  and  subscribed  the 
oath  of  office  required  by  this  Act,  shall,  without  justi- 
fiable cause,  neglect  or  refuse  to  perform  the  duties  en- 
joined on  him  by  this  Act  shall  be  deemed  guilty  of  a 
misdemeanor  and  upon  conviction  thereof  shall  be  fined 
not  exceeding  $500;  or  if  he  shall,  without  the  authority 
of  the  Director  of  the  Census,  publish  or  communicate 
any  information  coming  into  his  possession  by  reason  of 
his  employment  under  the  provisions  of  this  Act,  or  the 
Act  to  provide  for  a  permanent  Census  Office  or  Acts 
amendatory  thereof  or  supplemental  thereto,  he  shall  be 
guilty  of  a  felony  and  shall  upon  conviction  thereof  be 
fined  not  to  exceed  $1,000  or  be  imprisoned  not  to  exceed 
two  years,  or  both  so  fined  and  imprisoned  in  the  dis- 
cretion of  the  court ;  or  if  he  shall  wilfully  and  knowingly 
swear  or  affirm  falsely  as  to  the  truth  of  any  statement 
required  to  be  made  or  subscribed  by  him  under  oath  by 
or  under  authority  of  this  Act  or  of  the  Act  to  provide 
for  a  permanent  Census  Office  or  Acts  amendatory  thereof 
or  supplemental  thereto,  he  shall  be  deemed  guilty  of 
perjury,  and  upon  conviction  thereof  shall  be  fined  not 
exceeding  $2,000  or  imprisoned  not  exceeding  five  years, 
or  both;  or  if  he  shall  wilfully  and  knowingly  make  a 
false  certificate  or  a  fictitious  return  he  shall  be  guilty 
of  a  felony,  and  upon  conviction  of  either  of  the  last 
named  offenses  he  shall  be  fined  not  exceeding  $2,000  or 
be  imprisoned  not  exceeding  five  years,  or  both ;  or  if  any 
person  who  is  or  has  been  an  enumerator  shall  knowingly 
or  wilfully  furnish  or  cause  to  be  furnished,  directly  or 
indirectly,  to  the  Director  of  the  Census  or  to  any  super- 
visor of  the  census  any  false  statement  or  false  informa- 
tion with  reference  to  any  inquiry  for  which  he  was  au- 
thorized and  required  to  collect  information  he  shall  be 
guilty  of  a  felony,  and  upon  conviction  thereof  shall  be 


698  Ceiminal  Law 

fined  not  exceeding  $2,000  or  be  imprisoned  not  exceeding 
five  years  or  both.^^ 

§  770.  Consideration  or  fee  for  appointment  under 
Census  Act  illegal — Punishment.  If  any  person  shall  re- 
ceive or  secure  to  himself  any  fee,  reward,  or  compensa- 
tion for  the  appointment  or  employment  of  any  person 
as  supervisor,  enumerator,  or  clerk  or  other  employee,  or 
shall  in  any  way  receive  or  secure  to  himself  any  part  of 
the  compensation  paid  to  any  supervisor,  enumerator  or 
clerk  or  other  employee,  he  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
not  more  than  three  thousand  dollars  and  be  imprisoned 
not  more  than  five  years.^ 

§  771.  Officers  and  employees  failing  to  perform  duty 
under  Census  Act — Punishment.  Any  supervisor,  super- 
visor's clerk,  enumerator,  interpreter,  special  agent,  or 
other  employee,  who,  having  taken  and  subscribed  the 
oath  of  office  required  by  this  Act,  shall,  without  justifi- 
able cause,  neglect  or  refuse  to  perform  the  duties  en- 
joiued  on  him  by  this  Act,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
not  exceeding  five  hundred  dollars;  or  if  he  shall,  without 
the  authority  of  the  Director  of  the  Census,  publish  or 
communicate  any  information  coming  into  his  possession 
by  reason  of  liis  employment  under  the  provisions  of  this 
Act,  or  the  Act  to  provide  for  a  permanent  Census  Office, 
or  Acts  amendatory  thereof  or  supplemental  thereto,  he 
sliall  bo  guilty  of  a  misdemeanor  and  shall  upon  convic- 
tion thereof  be  fined  not  to  exceed  one  thousand  dollars, 
or  be  imprisoned  not  to  exceed  two  years,  or  both  such 
fine  and  iinprisoiinieiit,  in  the  discretion  of  the  court;  or 
if  lie  shall   wiHully   ;iii(l   knowingly  swear  to  or  affirm 

5a— Sec.   22,   Act  Mnrch   3,   1919,  6— Sec.  21,  Act  .July  2,  1909,  36 

40  Stnt.  1299.  St.nt.  8. 


V^IOLATION    OF    THE    CeNSUS    LaWS  69d 

falsely,  lie  shall  be  deemed  guilty  of  perjury,  and  upon 
conviction  thereof  shall  be  imprisoned  not  exceeding  five 
years  and  be  fined  not  exceeding  two  thousand  dollars; 
or  if  he  shall  wilfully  and  knowingly  make  a  false  cer- 
tificate or  a  fictitious  return,  he  shall  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  of  either  of  the  last-named 
offenses  he  shall  be  fined  not  exceeding  two  thousand 
dollars  and  be  imprisoned  not  exceeding  five  years;  or  if 
any  person  who  is  or  has  been  an  enumerator  shall  know- 
ingly or  wilfully  furnish,  or  cause  to  be  furnished,  di- 
rectly or  indirectly,  to  the  Director  of  the  Census,  or  to 
any  supei'visor  of  the  census,  any  false  statement  or  false 
information  with  reference  to  any  inquiry  for  which  he 
was  authorized  and  required  to  collect  information,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  fined  not  exceeding  two  thousand  dollars 
and  be  imprisoned  not  exceeding  five  years."' 

§  772.  Persons  over  twenty-one  years  of  age  required 
to  give  information  to  census  taker — Refusal — Punish- 
ment. It  shall  be  the  duty  of  all  persons  over  twenty-one 
years  of  age  w^hen  requested  by  the  Director  of  the  Cen- 
sus, or  by  any  supervisor,  enumerator,  or  special  agent, 
or  other  employee  of  the  Census  Office,  acting  under  the 
instructions  of  the  said  Director,  to  answer  correctly,  to 
the  best  of  their  knowledge,  all  questions  on  the  census 
schedules  applying  to  themselves  and  to  the  family  to 
which  they  belong  or  are  related,  and  to  the  farm  or 
farms  of  which  they  or  their  families  are  the  occupants; 
and  any  person  over  twenty-one  years  of  age  who,  under 
the  conditions  hereinbefore  stated,  shall  refuse,  or  wil- 
fully neglect  to  answer  any  of  these  questions,  or  shall 
wilfully  give  answers  that  are  false,  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
not  exceeding  one  hundred  dollars. 

7— Sec.  22,  Act  July  2,  1909,  36 
Stat.  8. 


700  Criminal  Law 

And  it  shall  be  tlie  duty  of  eveiy  owner,  proprietor, 
manager,  superintendent,  or  agent  of  a  hotel,  apartment 
house,  boarding  or  lodging  house,  tenement,  or  other 
building,  when  requested  by  the  Director  of  the  Census, 
or  by  any  supervisor,  enumerator,  special  agent,  or  other 
employee  of  the  Census  Ofdce,  acting  under  the  instruc- 
tions of  the  said  Director,  to  furnish  the  names  of  the 
occupants  of  said  hotel,  apartment  house,  boarding  or 
lodging  house,  tenement,  or  other  building,  and  to  give 
thereto  free  ingress  and  egress  to  any  duly  accredited 
representative  of  the  Census  office,  so  as  to  permit  of  the 
collection  of  statistics  for  census  purposes,  including  the 
proper  and  correct  enumeration  of  all  persons  having 
their  usual  place  of  abode  in  said  hotel,  apartment  house, 
boarding  or  lodging  house,  tenement,  or  other  building; 
and  any  owner,  proprietor,  manager,  superintendent,  or 
agent  of  a  hotel,  apartment  house,  boarding  or  lodging 
house,  tenement,  or  other  building  who  shall  refuse  or 
wilfully  neglect  to  give  such  information  or  assistance 
under  the  conditions  hereinbefore  stated  shall  be  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof  shall  be 
iiiu'd  not  exceeding  five  hundred  dollars.® 

§  773.  Refusing  information  to  census  director  relative 
to  hides,  etc. — Punishment.  Chap.  263.  An  Act  authoriz- 
ing and  directing  the  Director  of  the  Census  to  collect  and 
pul)lish  monllily  statistics  concerning  liidos,  skins,  and 
leather. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America,  in  Congress  as- 
sembled : 

That  tlie  Director  of  tlic  Census  bo,  and  he  is  hereby, 
autliorizod  and  directed  to  collect  and  publish  statistics 
inontlily  concerning — 

(a)   Tlie   quantities   and   classes   ol'   hides   and   skins, 

8— Sec.   2:i,  Act    .July  2,   1909,   3« 
stilt.    9. 


Violation  of  the  Census  Laws  701 

owned  or  stored,  and  the  quantities  and  classes  of  such 
products  disposed  of  during  the  preceding  census  month 
by  packers,  abattoirs,  butchers,  tanners,  jobbers,  dealers, 
wholesalers,  importers  and  exporters; 

(b)  The  quantities  and  classes  of  hides  and  skins  in 
the  process  of  tanning  or  manufacture,  the  quantities  and 
amount  of  finished  product  for  the  preceding  month; 

(c)  The  quantities  and  classes  of  leather  owned  or 
stored  and  manufactured  during  the  preceding  census 
month  by  tanners,  jobbers,  dealers,  wholesalers,  im- 
porters, exporters,  and  establishments  cutting  or  consum- 
ing leather. 

Sec.  2.  That  the  infonnation  furnished  by  any  indi- 
vidual establishment  under  the  provisions  of  this  Act 
shall  be  considered  as  strictly  confidential  and  shall  be 
used  only  for  the  statistical  purposes  for  which  it  is  sup- 
plied. Any  employee  of  the  Bureau  of  Census,  who,  with- 
out the  written  authority  of  the  Director  of  tlie  Census, 
shall  publish  or  communicate  any  infoiTnation  given  into 
his  possession  by  reason  of  his  employment  under  the  pro- 
visions of  this  Act  shall  be  guilty  of  a  misdemeanor  and 
shall,  upon  conviction  thereof,  be  fined  not  more  than 
$1,000  or  imprisoned  not  more  than  one  year,  or  both. 

Sec.  3.  That  it  shall  be  the  duty  of  everj^  owner,  presi- 
dent, or  treasurer,  secretary,  director,  or  other  officer 
or  agent  of  any  abattoir  and  of  any  packing,  tanning, 
jobbing,  dealing,  wholesaling,  importing,  or  exporting 
establishment  where  hides  and  skins  are  stored  or  sold, 
or  leather  is  tanned,  treated,  finished,  or  stored,  or  any 
establishment  is  engaged  in  the  cutting  of  leather  or  in 
the  production  of  boots  and  shoes,  gloves,  saddlery,  har- 
ness, or  other  manufactures  of  leather  goods,  wherever 
leather  is  consumed,  when  requested  by  the  Director  of 
the  Census  or  by  any  special  agent  or  other  employee  of 
the  Census  Office  acting  under  the  instructions  of  said 
director  to  furnish  completely  and  accurately  to  the^best 
of  his  knowledge,  all  the  infonnation  authorized  to  be 


702  Criminal  Law 

collected  by  section  1  of  this  Act.  The  demand  of  the 
Director  of  the  Census  for  such  information  shall  be 
made  in  writing  or  by  a  visiting  representative  and  if 
made  in  writing  shall  be  foi'warded  by  registered  mail 
and  the  registrj^  receipt  of  the  Post  Office  shall  be  ac- 
cepted as  prima  facie  evidence  of  such  demand.  Any 
owner,  president,  treasurer,  secretary,  director,  or  other 
officer  or  agent  of  any  establishment  required  to  fur- 
nish information  under  the  provisions  of  this  Act,  who 
under  the  conditions  hereinbefore  stated  shall  refuse  or 
wilfully  neglect  to  furnish  any  of  the  information  herein 
provided  for  or  shall  wilfully  give  answers  that  are  false, 
shall  be  guilty  of  a  misdemeanor  and  upon  conviction 
thereof,  shall  be  fined  not  more  than  $1,000.^ 

OFFICERS  OF  CENSUS  AND  EMPLOYEES 

§  774.  Penalty  for  bribing  officer.  That  if  any  person 
shall  receive  or  secure  to  himself  any  fee,  reward,  or  com- 
pensation for  the  appointment  or  employment  of  any  per- 
son as  supervisor,  enumerator  or  clerk  or  other  employee, 
or  shall  in  any  way  receive  or  secure  to  himself  any  part 
of  the  compensation  paid  to  any  supervisor,  enumerator 
or  clerk  or  other  employee,  he  shall  de  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
not  more  than  three  thousand  dollars  and  be  imprisoned 
not  more  than  five  years. ^° 

§  775.  Officers  neglecting  to  perform  official  duties — 
Penalty.  That  any  supervisor,  supci-visor's  clerk,  enum- 
erator, intei-preter,  special  agent,  or  other  employee,  who, 
having  taken  and  subscribed  the  oath  of  office  required 
by  this  Act,  shall,  without  justifiable  cause,  neglect  or 
refuse  to  perform  tlie  duties  enjoined  on  him  by  this  Act, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 

9— Approved    June    5,    1920.      41  ]0— Sec.    21,    Act    July    2,    1909, 

Stat.    1057.  36  Stat.  8. 


Violation  of  the  Census  Laws  703 

viction  thereof  shall  be  fined  not  exceeding  five  hundred 
dollars ;  or  if  he  shall,  without  the  authority  of  the  Direc- 
tor of  the  Census,  publish  or  communicate  any  informa- 
tion coming  into  his  possession  by  reason  of  his  employ- 
ment under  the  provisions  of  this  Act,  or  the  Act  to  pro- 
vide for  a  permanent  Census  Office,  or  Acts  amendatory 
thereof  or  supplemental  thereto,  he  shall  be  guilty  of  a 
misdemeanor  and  shall  upon  conviction  thereof  be  fined 
not  to  exceed  one  thousand  dollars  or  be  imprisoned  not 
to  exceeding  two  years,  or  both  so  fined  and  imprisoned, 
in  the  discretion  of  the  court;  or  if  he  shall  wilfully  and 
knowingly  swear  to  or  affirm  falsely,  he  shall  be  deemed 
guilty  of  perjury,  and  upon  conviction  thereof  shall  be 
imprisoned  not  exceeding  five  years  and  be  fined  not  ex- 
ceeding two  thousand  dollars;  or  if  he  shall  wilfully  "and 
know^ingly  make  a  false  certificate  or  a  fictitious  return, 
he  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
of  either  of  the  last-named  offenses  he  shall  be  fined  not 
exceeding  two  thousand  dollars  and  be  imprisoned  not  ex- 
ceeding five  years;  or  if  any  person  who  is  or  has  been  an 
enumerator  shall  knowingly  or  W' ilfully  furnish,  or  cause 
to  be  furnished,  directly  or  indirectly,  to  the  Director  of 
the  Census,  or  to  any  supervisor  of  the  census,  any  false 
statement  or  false  information  with  reference  to  any  in- 
quiiy  for  which  he  was  authorized  and  required  to  collect 
information,  he  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  be  fined  not  exceeding  two 
thousand  dollars  and  be  imprisoned  not  exceeding  five 
years.^^ 

§  776.  Persons  over  twenty-one  years  must  answer 
questions  of  census  taker — Penalty.  That  it  shall  be  the 
duty  of  all  persons  over  twenty-one  years  of  age  when  re- 
quested by  the  Director  of  the  Census,  or  by  any  super- 
visor, enumerator,  or  special  agent,  or  other  employee  of 
the  Census  Office,  acting  under  the  instructions  of  the 

11— See.  22,  Act  July  2,  1909,  36 
Stat.  8. 


704  Criminal  Law 

said  Director,  to  answer  correctly,  to  the  best  of  their 
knowledge,  all  questions  of  the  census  schedules  applying 
to  themselves  and  to  the  family  to  which  they  belong  or 
are  related,  and  to  the  fann  or  farms  of  which  they  or 
their  families  are  the  occupants;  and  any  person  over 
twenty-one  years  of  age,  who,  under  the  conditions  here- 
inbefore stated,  shall  refuse,  or  wilfully  neglect  to  answer 
any  of  these  questions,  or  shall  wilfulh'  give  answers  that 
are  false,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  fined  not  exceeding  one  hundred 
dollars. 

And  it  shall  be  the  duty  of  every  owner,  proprietor, 
manager,  superintendent,  or  agent  of  a  hotel,  apartment 
house,  boarding  or  lodging  house,  tenement,  or  other 
buflding,  when  requested  by  the  Director  of  the  Census, 
or  by  any  supervisor,  enumerator,  special  agent,  or  other 
employee  of  the  Census  Ofiice,  acting  under  the  instruc- 
tions of  the  said  Director  to  funiish  the  names  of  the 
occupants  of  said  hotel,  apartment  house,  boarding  or 
lodging  house,  tenement,  or  other  building,  and  to  give 
thereto  free  ingress  and  egress  to  any  duly  accredited 
representative  of  the  Census  Office,  so  as  to  permit  of  the 
collection  of  statistics  for  census  purposes  including  the 
jjroper  and  correct  enumeration  of  all  persons  having 
their  usual  place  of  abode  in  said  hotel,  apartment  house, 
boarding  or  lodging  house,  tenement,  or  other  building; 
and  any  owner,  proprietor,  manager,  superintendent,  or 
agent  of  a  hotel,  a])aiini('iit  liouse,  boarding  or  lodging 
house,  tencnu'iit,  or  oilier  l)nil(ling  wiio  sliall  refuse  oi" 
wilfully  neglect  to  give  such  infoimation  or  assistance 
undfi-  the  conditions  hereinbefore  stated  shall  be  guilty 
of  ;i  misdemeanor,  and  upon  conviction  thereof  shall  be 
lined  not  exceeding  live  liundred  dollars.^^ 

Substantially  as  the  Census  Act  of  lOlO.  The  Act  of 
11)01)  doi'S  not  appear  to  be  expressly  rei)ealed,  repetition 
of  each  act  does  not  appear  to  be  of  serious  importance 

12— Sec.  23,  Art   .Inly  2,   lOOf),  3G 
Rtrif.   8. 


CHAPTER  LIII 


OFFENSES    AGAINST    THE    ELECTIVE    FRANCHISE    AND    CIVIL 
EIGHTS  OF  CITIZENS 

CHAPTEE  THEEE 
Penal  Code  Act,  March  4,  1909 


§  778.  Conspiracy     to     injure,     etc., 

persons  in   the   exercise   of 

civil   rights. 
§  779.  Depriving     citizens     of     civil 

rights  under  color  of  State 

laws. 
§  780.  Conspiring   to  prevent   officer 

from   performing   duties. 
§  781.  Unlawful  presence   of  troups 

at  elections. 
§  782.  Intimidation     of     voters     by 


officers,  etc.,  of  Army  or 
Navy. 

§  783.  Officers  of  Army  or  Navy 
prescribing  qualifications 
of  voters. 

§  784.  Officers,  etc.,  of  Army  or 
Navy  interfering  with  offi- 
cers of  election,  etc. 

§  785.  Persons  disqualified  from 
holding  office ;  when  sol- 
diers, etc.,  may  vote. 


§  778.  Conspiracy  to  injure,  etc.,  persons  in  the  exercise 
of  civil  rights.  Sec.  19.  If  two  or  more  persons  conspire 
to  injure,  oppress,  threaten,  or  intimidate  any  citizen  in 
the  free  exercise  or  enjoyment  of  any  right  or  privilege 
secured  to  him  bj^  the  Constitution  or  laws  of  the  United 
States,  or  because  of  his  having  so  exercised  the  same, 
or  if  two  or  more  persons  go  in  disguise  on  the  highway, 
or  on  the  premises  of  another,  with  intent  to  prevent  or 
hinder  his  free  exercise  or  enjoyment  of  any  right  or  priv- 
ilege so  secured,  they  shall  be  fined  not  more  than  five 
thousand  dollars  and  imprisoned  not  more  than  ten  years, 
and  shall  moreover,  be  thereafter  ineligible  to  any  office, 
or  place  of  honor,  profit,  or  trust  created  by  the  Consti- 
tution or  laws  of  the  United  States. 

§  779.  Depriving-  citizens  of  civil  rights  under  color  of 
State  laws.  Sec.  20.  Whoever,  under  color  of  any  law, 
statute,  ordinance,  regulation,  or  custom,  wilfully  sub- 
jects, or  causes  to  be  subjected,  any  inhabitant  of  any 
State,  Territory,  or  District  to  the  deprivation  of  any 
C.  L.-45  705 


706  Ceimixal  Law 

rights,  privileges,  or  immunities  secured  or  protected  by 
the  Constitution  and  laws  of  the  United  States,  or  to  dif- 
ferent punishments,  pains  or  penalties,  on  account  of 
such  inhabitant  being  an  alien,  or  by  reason  of  his  color, 
or  race,  than  are  prescribed  for  the  punishment  of  citi- 
zens, shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  one  year,  or  both. 

§  780.    Conspiring  to  prevent  officer  from  performing 

duties.  Sec.  21.  If  two  or  more  persons  in  any  State, 
Territory,  or  District  conspire  to  prevent,  by  force,  in- 
timidation, or  threat,  any  person  from  accepting  or  hold- 
ing any  office,  trust,  or  place  of  confidence  under  the 
United  States,  or  from  discharging  any  duties  thereof; 
or  to  induce  by  like  means  any  officer  of  the  United  States 
to  leave  any  State,  Territoiy,  District,  or  place  where  his 
duties  as  an  officer  are  required  to  be  performed,  or  to 
injure  him  in  his  person  or  property  on  account  of  his 
lawful  discharge  of  the  duties  of  his  office,  or  while  en- 
gaged in  the  lawful  discharge  thereof,  or  to  injure  his 
property  so  as  to  molest,  interrupt,  hinder,  or  impede 
him  in  the  discharge  of  his  official  duties,  each  of  such 
persons  shall  be  fined  not  more  than  five  thousand  dol- 
lars, or  imprisoned  not  more  than  six  years,  or  both. 

§  781.  Unlawful  presence  of  troops  at  elections.  Sec. 
22.  Eveiy  officer  of  the  Anny  or  Navy,  or  other  person 
in  the  civil,  military,  or  naval  service  of  the  United 
States,  who  orders,  brings,  keeps,  or  has  under  his  au- 
thority or  control  any  troops  or  armed  men  at  any  place 
where  a  general  or  special  election  is  held  in  any  State, 
unless  such  force  be  necessary  to  repel  anned  enemies  of 
the  T"^nited  States,  shall  be  fined  not  more  than  five  thou- 
sand dolhii's  and  im])ris()iied  not  more  than  five  years. 

i<  782.  Intimidation  of  voters  by  officers,  etc.,  of  Army 
or  Navy.  Sec.  2.''.  lOvcry  ofhcer  or  otlici-  person  in  the  mili- 
l;irv  or  naxal  scrNicc  of  liic  I'liilcd  States  wiio,  by  force, 
t  hicat,  iiit  iniifhit  ion,  oidri-,  advice,  oi-  ot  hei'wise,  ])i'e  vents, 


Offenses  Against  the  Elective  Franchise        707 

or  attempts  to  prevent,  any  qualified  voter  of  any  State 
from  freely  exercising-  the  right  of  suffrage  at  any  gen- 
eral or  special  election  in  such  State  shall  be  fined  not 
more  than  five  thousand  dollars  and  imprisoned  not  more 
than  five  years. 

§  783.  Officers  of  Army  or  Navy  prescribing  qualifica- 
tions of  voters.  Sec.  24.  Every  officer  of  the  Army  or 
Navy  who  prescribes  or  fixes,  or  attempts  to  prescribe  or 
fix,  whether  by  proclamation,  order,  or  othei*^vise,  the 
qualifications  of  voters  at  any  election  in  any  State  shall 
be  punished  as  provided  in  the  preceding  section. 

§  784.  Officers,  etc.,  of  Army  or  Navy  interfering-  with 
officers  of  election,  etc.  Sec.  25.  Every  officer  or  other 
person  in  the  military  or  naval  service  of  the  United 
States  who,  by  force,  threat,  intimidation,  order,  or  other- 
wise, compels,  or  attempts  to  compel,  any  officer  holding 
an  election  in  any  State  to  receive  a  vote  from  a  person 
not  legally  qualified  to  vote,  or  who  imposes,  or  attempts 
to  impose,  any  regulations  for  conducting  any  general 
or  special  election  in  a  State  different  from  those  pre- 
scribed by  law,  or  w^ho  interferes  in  any  manner  with 
any  officer  of  an  election  in  the  discharge  of  his  duty, 
shall  be  punished  as  provided  in  section  twenty-three 
[782]. 

§785.  Persons  disqualified  from  holding  office;  when 
soldiers,  etc.,  may  vote.  Sec.  26.  Every  person  convicted 
of  an  offense  defined  in  the  four  preceding-  sections  [781, 
782,  783,  784]  shall  in  addition  to  the  punishment  therein 
prescribed,  be  disqualified  from  holding-  any  office  of 
honor,  profit,  or  trust  under  the  United  States;  but  noth- 
ing therein  shall  be  construed  to  prevent  any  officer,  sol- 
dier, sailor,  or  marine  from  exercising  the  right  of  suf- 
frage in  any  election  district  to  which  he  may  belong,  if 
otherwise  qualified  according  to  the  laws  of  the  State 
in  which  he  offers  to  vote. 


CHAPTER  LIV 


VIOLATIONS  BY  COMMON  CAERIEE 


787.  Maliciously  opening  or  break- 

ing car;  Act  July  14,  1870; 
punishment. 

788.  Wilful  failure  of  carrier  sub- 

.ieet  to  interstate  regula- 
tions to  comply  with  law; 
punishment. 

789.  Common    carrier   not   allowed 

to  transport  diseased 
plants. 

790.  OflScers    of    corporations    en- 

gaged in  commerce  as  a 
common  carrier  who  em- 
bezzles, etc.;  punishment; 
conviction  in  State  court  a 
bar. 

791.  Penalties  and  punishment  to 

common  carrier  for  viola- 
tion of  laws  relating  to 
common  carriers. 


§  792.  Making  false  entries  by  com- 
mon carrier  in  accounts; 
penalty. 

§  793.  Who  with  intent  to  defraud 
makes  or  utters  false  bill 
of  lading,  etc.;  punishment. 

§  794.  Illegal  act  of  common  carrier 
by  water. 

§  795.  Common  carrier  and  its  agent 
must  not  disclose  informa- 
tion, concerning  shipment, 
etc. 

§  796.  Refusal  to  carry  mail  by  wa- 
ter-carrier;   punishment. 

§  797.  Unlawful  to  be  officer  of  more 
than  one  carrier ;  punish- 
ment. 


§  787.  Maliciously  opening  or  breaking-  car,  Act  July 
14,  1870 — Punishment.  Any  ])eis()ii  inalifiout^ly  ()i)eMiin,<;-, 
breaking,  or  entering,  by  any  means  whatever,  any  car, 
vessel,  vehicle,  warehouse,  or  package  containing  any 
such  merchandise  so  delivered  for  transportation,  or  re- 
moving, injuring,  breaking,  or  defacing  any  lock  or  seal 
placed  upon  such  car,  vessel,  vehicle,  warehouse,  or  pack- 
age, or  aiding,  abetting,  or  encouraging  any  other  person 
or  persons  so  to  remove,  break,  injure,  or  deface  such 
locks  or  seals,  or  to  open,  l)reak,  or  enter  such  car,  vessel, 
or  vehicle,  with  inlciil  in  i-ciiiovc  or  cause  to  be  removed 
unlawfnily  any  incicliaiKlisc  therein,  or  in  any  manner 
to  iiijure  or  dcfj'and  llic  Tnitcd  Sfatj'S;  and  any  person 

708 


Violations  by  Common  Carrier  709 

receiving  any  merchandise  unlawfully  removed  from 
any  such  car/vessel,  or  vehicle,  knowing  it  to  have  been 
so  unlawfully  removed,  shall  be  guilty  of  felony,  and  in 
addition  to  any  penalties  heretofore  prescribed  shall  be 
•punishable  by  imprisonment  for  not  more  than  six 
months  nor  more  than  two  years.^ 

§788.  Wilful  failure  of  carrier  subject  to  interstate 
regulations  to  comply  with  law — Punishment.  Anything 
done  or  omitted  to  be  done  by  a  corporation  common  car- 
rier, subject  to  the  Act  to  regulate  commerce  and  the 
Acts  amendatory  thereof,  which,  if  done  or  omitted  to  be 
done  by  any  director  or  officer  thereof,  or  any  receiver, 
trustee,  lessee,  agent,  or  person  acting  for  or  employed 
by  such  corporation,  would  constitute 'a  misdemeanor 
under  said  Acts  or  under  this  Act,  shall  also  be  held  to 
be  a  misdemeanor  committed  by  such  corporation,  and 
upon  conviction  thereof  it  shall  be  subject  to  like  penal- 
ties as  are  prescribed  in  said  Acts  or  by  this  Act  with 
reference  to  such  persons,  except  as  such  penalties  are 
herein  changed.  The  wilful  failure  upon  the  part  of  any 
carrier  subject  to  said  Acts  to  file  and  publish  the  tariffs 
or  rates  and  charges  as  required  by  said  Acts,  or  strictly 
to  observe  such  tariffs  changed  according  to  law,  shall 
be  a  misdemeanor,  and  upon  conviction  thereof  the  cor- 
poration offending  shall  be  subject  to  a  fine  of  not  less 
than  one  thousand  dollars  nor  more  than  twenty  thou- 
sand dollars  for  each  offense;  and  it  shall  be  unlawful 
for  any  person,  persons,  or  corporation  to  offer,  grant, 
or  give,  or  to  solicit,  accept,  or  receive  any  rebate,  con- 
cession, or  discrimination  in  respect  to  the  transporta- 
tion of  any  property  in  interstate  or  foreign  commerce 
by  any  common  carrier  subject  to  said  Act  to  regulate 
commerce  and  the  Acts  amendatory  thereof  whereby  any 
such  property  shall  by  any  device  whatever  be  trans- 

1— Act  July  14,  1870,  E.  S.  2998, 
16    Stat.    271. 


710  Criminal  Law 

ported  at  less  rate  than  that  named  in  the  tariffs  pub- 
lished and  filed  by  such  carrier,  as  is  required  by  said 
Act  to  regulate  commerce  and  the  Acts  amendatory 
thereof,  or  whereby  any  other  advantage  is  given  or  dis- 
crimination is  practiced.  Every  person  or  corporation, 
whether  carrier  or  shipper,  w^ho  shall,  knowingly,  otfer, 
grant  or  give,  or  solicit,  accept,  or  receive  any  such  re- 
bates, concession,  or  discrimination  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall 
be  punished  by  a  fine  of  not  less  than  one  thousand  dol- 
lars nor  more  than  twenty  thousand  dollars:  Provided, 
That  any  person,  or  any  officer  or  director  of  any  corpo- 
ration subject  to  the  provisions  of  this  Act,  or  the  Act  to 
regulate  commerce  and  the  Acts  amendatory  thereof,  or 
any  receiver,  trustee,  lessee,  agent,  or  person  acting  for 
or  employed  by  any  such  corporation,  Avho  shall  be  con- 
victed as  aforesaid,  shall,  in  addition  to  the  fine  herein 
provided  for,  be  liable  to  imprisonment  in  the  peniten- 
tiary for  a  tenn  of  not  exceeding  two  years,  or  both  such 
fine  and  imprisonment,  in  the  discretion  of  the  court. 
Every  violation  of  this  section  shall  be  prosecuted  in 
any  court  of  the  United  States  having  jurisdiction  of 
crimes  within  the  district  in  which  such  violation  was 
committed,  or  through  which  the  transportation  may 
have  been  conducted;  and  whenever  the  offense  is  begun 
in  one  jurisdiction  and  completed  in  aiiotlier  it  may  be 
dealt  with,  iiuiuircd  of,  tried,  detiM-nrnied,  and  punished 
in  either  jurisdiction  in  tiie  same  manner  as  if  tlie  offense 
liad  been  actually  and  wholly  connnitted  therein. 

In  construing  and  enforcing  the  provisions  of  this 
section,  the  ad,  omission,  or  fnihuc  of  any  officer,  agent, 
or  other  jx-i-son  acting  for  or  cniployi'd  by  any  common 
carrier,  or  shipper,  acting  within  the  scope  of  his  employ- 
ment, shall  in  every  case  be  also  deemed  to  hv  the  act, 
omission,  or  failnrc  of  such  carrier  or  shi|)]ier  as  well  as 
that  of  the  person.  Whenever  any  cai-rier  iiles  with  the 
Interstate  Comineree  ('oinmission  or  publishes  a  pariicu- 


Violations  by  Common  Carrier  711 

lar  rate  under  the  provisions  of  the  Act  to  regulate  com- 
merce or  Acts  amendatory  thereof,  or  participates  in  any 
rates  so  filed  or  published,  that  rate  as  against  such  car- 
rier, its  officers  or  agents,  in  any  prosecution  begun  under 
this  Act  shall  be  conclusively  deemed  to  be  the  legal  rate, 
and  any  departure  from  such  rate,  or  any  offer  to  depart 
therefrom,  shall  be  deemed  to  be  an  offense  under  this 
section  of  this  act  June  29,  1906,  34  stat.  587. 

§  789.  Common  carrier  not  allowed  to  transport  dis- 
eased plants.  That  any  person  who  shall  violate  any  of 
the  provisions  of  this  Act,  or  who  shall  forge,  counterfeit, 
alter,  deface,  or  destroy  any  certificate  provided  for  in 
this  Act  or  in  the  regulations  of  the  Secretary  of  Agricul- 
ture, shall  be  deemed  guilty  of  a  misdemeanor  and  shall, 
upon  conviction  thereof,  be  punished  by  a  fine  not  exceed- 
ing five  hundred  dollars  or  by  imprisonment  not  exceed- 
ing one  year,  or  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  court:  Provided,  That  no  common  car- 
rier shall  be  deemed  to  have  violated  the  provisions  of 
any  of  the  foregoing  sections  of  this  Act  on  proof  that 
such  carrier  did  not  knowingly  receive  for  transportation 
or  transport  nurseiy  stock  or  other  plants  or  plant  prod- 
ucts as  such  from  one  State,  Territory,  or  District  of  the 
United  States  into  or  through  any  other  State,  Territoiy, 
or  District;  and  it  shall  be  the  duty  of  the  United  States 
attorneys  diligently  to  prosecute  any  violations  of  this 
Act  which  are  brought  to  their  attention  by  the  Secre- 
tary of  Agriculture  or  which  come  to  their  notice  by  other 
means.^ 

§  790.  Officers  of  corporations  engaged  in  commerce  as 
a  common  carrier  who  embezzles,  etc.;  punishment;  con- 
viction in  State  court  a  bar.  Eveiy  president,  director, 
officer  or  manager  of  any  firm,  association  or  corporation 

2— Sec.  10,  Act  Aug.  20,  1912,  37 
Stat.    318. 


712  Criminal  Law 

engaged  in  conunerce  as  a  common  carrier,  wlio  embez- 
zles, steals,  abstracts  or  wilfully  misapplies,  or  wilfully 
permits  to  be  misapplied,  any  of  tli«  moneys,  funds,  cred- 
its, securities,  property  or  assets  of  such  firm,  association 
or  corporation,  arising  or  accruing  from,  or  used  in,  such 
commerce,  in  whole  or  in  part,  or  wilfully  or  know^ingly 
converts  the  same  to  his  own  use  or  to  the  use  of  another, 
shall  be  deemed  guilty  of  a  felony  and  upon  conviction 
shall  be  fined  not  less  than  $500  or  confined  in  the  peniten- 
tiary not  less  than  one  year  nor  more  than  ten  years,  or 
both,  in  the  discretion  of  the  court. 

Prosecutions  hereunder  may  be  in  the  district  court  of 
the  United  States  for  the  district  wherein  the  offense  may 
have  been  committed.  That  nothing  in  this  section  shall 
be  held  to  take  away  or  impair  the  jurisdiction  of  the 
courts  of  the  several  States  under  the  laws  thereof;  and  a 
judgment  of  conviction  or  acquittal  on  the  merits  under 
the  laws  of  any  State  shall  be  a  bar  to  any  prosecution 
hereunder  for  the  same  act  or  acts.' 

§791.  Penalties  and  punishment  to  common  carriers 
for  violation  of  laws  relating  to  common  carriers.  That 
any  common  carrier  subject  to  the  provisions  of  this  Act, 
or,  whenever  such  commor  carrier  is  a  corporation,  any 
director  or  officer  thereof,  or  any  receiver,  trustee,  lessee, 
agent,  or  person  acting  for  or  employed  by  such  corpora- 
tion, who,  alone  or  with  any  other  corporation,  company, 
person,  or  party,  shall  wilfully  do  or  cause  to  be  done,  or 
shall  willingly  suffer  or  permit  to  be  done,  any  act,  mat- 
ter, or  thing  in  this  Act  prohibited  or  declared  to  be  un- 
lawful, or  wlio  shall  aid  or  abet  therein,  or  shall  wilfully 
omit  or  fail  to  do  any  act,  matter,  or  thing  in  tliis  Act  re- 
quired to  be  done,  or  shall  cause  or  willingly  suffer  or 
permit  any  act,  matter,  or  thing  so  directed  or  required 
by  this  Act  to  be  (lone  not  to  lie  so  done,  oi'  wlio  shall  aid 

3_Sec.    9,    Act    Oct.    IG,    1!)14,   'M 
Stat.  7.33. 


Violations  by  Common  Caerier  713 

or  abet  any  such  omission  or  failure,  or  shall  be  guilty 
of  any  infraction  of  this  Act  for  which  no  penalty  is 
otherwise  provided,  or  who  shall  aid  or  abet  therein,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction thereof  in  any  district  court  of  the  United  States 
within  the  jurisdiction  of  which  such  offense  was  com- 
mitted, be  subject  to  a  fine  of  not  to  exceed  five  thousand 
dollars  for  each  offense :  Provided,  That  if  the  offense  for 
which  any  person  shall  be  convicted  as  aforesaid  shall  be 
an  unlawful  discrimination  in  rates,  fares  or  charges  for 
the  transportation  of  passengers  or  property,  such  per- 
son shall,  in  addition  to  the  fine  hereinbefore  provided 
for,  be  liable  to  imprisonment  in  the  penitentiary  for  a 
term  not  exceeding  two  years,  or  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the  court. 

Any  common  carrier  subject  to  the  provisions  of  this 
Act,  or,  whenever  such  common  carrier  is  a  coi7)oration, 
any  officer  or  agent  thereof,  or  any  person  acting  for  or 
employed  by  such  corporation,  who,  by  means  of  false 
billing,  false  classification,  false  weighing,  or  false  report 
of  w^eight,  or  by  any  other  device  or  means,  shall  know- 
ingly and  wilfully  assist,  or  shall  willingly  suffer  or  per- 
mit, any  person  or  persons  to  obtain  transportation  for 
property  at  less  than  the  regular  rates  then  established 
and  in  force  on  the  line  or  transportation  of  such  common 
carrier,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction  thereof  in  any  court  of  the  United 
States  of  competent  jurisdiction  within  the  district  in 
which  such  offense  was  committed,  be  subject  to  a  fine  of 
not  exceeding  five  thousand  dollars,  or  imprisonment  in 
the  penitentiary  for  a  term  of  not  exceeding  two  years,  or 
both,  in  the  discretion  of  the  court,  for  each  offense. 

Any  person,  corporation,  or  company,  or  any  agent  or 
officer  thereof,  who  shall  deliver  property  for  transpor- 
tation to  any  common  carrier  subject  to  the  provisions 
of  this  Act,  or  for  whom,  as  consignor  or  consignee,  any 
such  carrier  shall  transport  property,  who  shall  know- 


714  Crimixal  Law 

ingly  and  wilfully,  directly  or  indirectly,  himself  or  by 
employee,  ag-ent,  officer  or  otherwise,  by  false  billing, 
false  classification,  false  weighing,  false  representation 
of  the  contents  of  the  package  of  the  substance  of  the 
property,  false  report  of  weight,  false  statement,  or  by 
any  other  device  or  means,  whether  wdth  or  without 
the  consent  or  connivance  of  the  earner,  its  agent,  or 
officer,  obtain  or  attempt  to  obtain  transportation  for 
such  property  at  less  than  the  regular  rates  then  estab- 
lished and  in  force  on  the  line  of  transportation;  or 
who  shall  knowingly  and  wilfully,  directly  or  indirectly, 
himself  or  by  employee,  agent,  officer,  or  othenvise,  by 
false  statement  or  representation  as  to  cost,  value,  na- 
ture, or  extent  of  injury,  or  by  the  use  of  any  false  bill, 
bill  of  lading,  receipt,  voucher,  account,  claim,  certificate, 
affidavit,  or  deposition,  knowing  the  same  to  be  false, 
fictitious,  or  fraudulent,  or  to  contain  any  false,  fictitious, 
or  fraudulent  statement  or  entry,  obtain  or  attempt  to 
obtain  any  allowance,  refund,  or  payment  for  damage 
or  otherwise  in  connection  with  any  allowance,  refund, 
or  pajnnent  for  damage  or  otherwise  in  connection  with 
or  growing  out  of  the  transportation  of  or  agreement 
to  transport  such  property,  whether  with  or  without  the 
consent  or  connivance  of  the  carrier,  whereby  the  com- 
pensation of  such  caiTier  for  such  transportation,  either 
before  or  after  payment,  shall  in  fact  be  made  less  than 
the  regular  rates  then  established  and  in  force  on  the 
line  of  transportation,  shall  be  deemed  guilty  of  fraud, 
wliich  is  hereby  declared  to  be  a  misdemeanor,  and  shall, 
upon  convict  ion  llicrcor  in  any  court  of  the  rnitod  States 
of  comyx'icnl  jiiiisdiction  within  the  district  in  wiiich 
such  offense  was  wholly  or  in  i)art  committed,  be  subject 
for  each  offense  to  a  fine  of  not  exceeding  five  thousand 
dollars  or  imprisonment  in  the  penitentiary  for  a  terra 
not  exceeding  two  years,  or  both,  in  the  discretion  of  the 
couit :  Provided,  That  the  ])enMlty  of  imi)risonment  shall 
not   .'i})ply  to  artificial  persons. 


Violations  by  Common  Carrier  715 

If  any  sucli  person,  or  any  officer  or  agent  of  any 
such  corporation  or  company,  shall,  by  payment  of 
money  or  other  thing  of  value,  solicitation,  or  othenvise, 
induce  or  attempt  to  induce  any  common  carrier  sub- 
ject to  the  provisions  of  this  Act,  or  any  of  its  officers 
or  agents,  to  discriminate  unjustly  in  his,  its,  or  their 
favor  as  against  any  other  consignor  or  consignee  in  the 
transportation  of  property,  or  shall  aid  or  abet  any  com- 
mon carrier  in  any  such  unjust  discrimination,  such  per- 
son or  such  officer  or  agent  of  such  corporation  or  com- 
pany shall  be  deemed  guilty  of  a  misdemeanor,  and  shall, 
upon  conviction  thereof  in  any  court  of  the  United  States 
of  competent  jurisdiction  within  the  district  in  which 
such  offense  was  committed,  be  subject  to  a  fine  of  not 
exceeding  five  thousand  dollars,  or  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years,  or 
both,  in  the  discretion  of  the  court,  for  each  offense; 
and  such  person,  corporation,  or  company,  shall  also, 
together  with  said  common  carrier,  be  liable,  jointly  or 
severally,  in  an  action  to  be  brought  by  any  consignor 
or  consignee  discriminated  against  in  any  court  of  the 
United  States  of  competent  jurisdiction  for  all  damages 
caused  by  or  resulting  therefrom.* 

§  792.  Making  false  entries  by  common  carrier  in  ac- 
counts— Penalty.  The  Commission  may,  in  its  discretion, 
prescribe  the  forms  of  any  and  all  accounts,  records, 
and  memoranda  to  be  kept  by  carriers  subject  to  the 
provisions  of  this  Act,  including  the  accounts,  records, 
and  memoranda  of  the  movoAient  of  traffic  as  w^ell  as 
the  receipts  and  expenditures  of  moneys.  The  Commis- 
sion shall  at  all  times  have  access  to  all  accounts,  rec- 
ords and  memoranda  kept  by  carriers  subject  to.  this 
Act,  and  it  shall  be  unlawful  for  such  carriers  to  keep 
any  other  accounts,  records,  or  memoranda  than  those 

4— June    18,    1910,    Sec.    10,    36 
Stat.  549. 


716  Ceiminal  Law 

prescribed  or  approved  by  the  Commission,  and  it  may 
employ  special  agents  or  examiners,  who  shall  have  au- 
thority under  the  order  of  the  Commission  to  inspect 
and  examine  any  and  all  accounts,  records,  and  memo- 
randa kept  by  such  carriers.  This  provision  shall  apply 
to  receivers  of  carriers  and  operating  trustees. 

In  case  of  failure  or  refusal  on  the  part  of  any  such 
carrier,  receiver,  or  trustee  to  keep  such  accounts,  rec- 
ords, and  memoranda  on  the  books  and  in  manner  pre- 
scribed by  the  Commission,  or  to  submit  such  accounts, 
records,  and  memoranda  as  are  kept  to  the  inspection  of 
the  Commission  or  any  of  its  authorized  agents  or  ex- 
aminers, such  carrier,  receiver,  or  trustee  shall  forfeit 
to  the  United  States  the  sum  of  five  hundred  dollars  for 
each  such  oifense  and  for  each  and  every  day  of  the  con- 
tinuance of  such  offense,  such  forfeitures  to  be  recover- 
able in  the  same  manner  as  other  forfeitures  provided 
for  in  this  Act. 

Any  person  who  shall  wilfully  make  any  false  entiy 
in  the  accounts  of  any  book  or  accounts  or  in  any  record 
or  memoranda  kept  by  a  carrier,  or  who  shall  wilfully 
destroy,  mutilate,  alter,  or  by  any  other  means  or  device 
falsify  the  record  of  any  such  account,  record,  or  memo- 
randa, or  who  shall  wilfully  neglect  or  fail  to  make  full, 
true,  and  correct  entries  in  such  accounts,  records,  or 
memoranda  of  all  facts  and  transactions  appertaining 
to  the  carrier's  business,  or  shall  keep  any  other  ac- 
counts, records,  or  memoranda  than  those  prescribed  or 
approved  by  the  Commission,  sliall  be  deemed  guilty  of 
a  misdemeanor  and  shall  l)e  subject,  upon  conviction  in 
any  court  of  the  United  States  of  competent  jurisdic- 
tion, to  a  fine  of  not  less  than  one  thousand  dollars  nor 
more  than  five  thousand  dollars,  or  imprisonment  for 
a  term  not  less  than  one  year  nor  more  than  three  years, 
(»i-  both  such  fiiic  and  iiii|ii  isoimiciil  :  TrovidcMl,  That  the 
(!(»nnnissioii  may  in  its  discretion  issue  orders  specify- 
ing such  o})erating,  accounting,  or  (inancial  pai)crs,  rec- 


Violations  by  Common  Carrier  717 

ords,  books,  blanks,  tickets,  stubs  or  documents  of  car- 
riers which  may,  after  a  reasonable  time,  be  destroyed, 
and  prescribing  the  length  of  time  such  books,  papers, 
or  documents  shall  be  preserved. 

Any  examiner  who  divulges  any  fact  or  information 
which  may  come  to  his  knowledge  during  the  course  of 
such  examination,  except  insofar  as  he  may  be  directed 
by  the  Commission  or  by  a  court  or  judge  thereof,  shall 
be  subject,  upon  conviction  in  any  court  of  the  United 
States  of  competent  jurisdiction,  to  a  fine  of  not  more 
than  five  thousand  dollars  or  imprisonment  for  a  terai 
not  exceeding  two  years,  or  both. 

That  the  circuit  and  district  courts  of  the  United 
States  shall  have  jurisdiction,  upon  the  application  of 
the  attorney-general  of  the  United  States  at  the  request 
of  the  Commission,  alleging  a  failure  to  comply  with 
or  a  violation  of  any  of  the  provisions  of  said  Act  to 
regulate  commerce  or  of  any  Act  supplementary  thereto 
or  amendatory  thereof  by  any  common  carrier,  to  issue 
a  writ  or  writs  of  mandamus  commanding  such  common 
carrier  to  comply  with  the  provisions  of  this  Act,  or  any 
of  them. 

And  to  carry  out  and  give  effect  to  the  provisions  of 
said  Act,  or  any  of  them,  the  Commission  is  hereby  au- 
thorized to  employ  special  agents  or  examiners  who  shall 
have  power  to  administer  oaths,  examine  witnesses,  and 
receive  evidence.® 

§793.  Who  with  intent  to  defraud  makes  or  utters 
false  bill  of  lading,  etc. — Punishment.  Any  person  who, 
knowingly  or  with  intent  to  defraud,  falsely  makes, 
alters,  forges,  counterfeits,  prints  or  photographs  any  bill 
of  lading  purporting  to  represent  goods  received  for 
shipment  among  the  several  states  or  with  foreign  na- 
tions, or  with  like  intent  utters  or  publishes  as  true  and 
genuine  any  such  falsely  altered,  forged,  counterfeited, 

5— Act  Aug.  9,  1916,  39  Stat.  441. 


718  Criminal,  Law 

falsely  printed  or  photographed  bill  of  lading,  knowing 
it  to  be  falsely  altered,  forged,  counterfeited,  falsely 
printed  or  photographed,  or  aids  in  making,  altering, 
forging,  counterfeiting,  printing  or  photographing,  or 
uttering  or  publishing  the  same,  or  issues  or  aids  in  issu- 
ing or  procuring  the  issue  of,  or  negotiates  or  transfers 
for  value  a  bill  which  contains  a  false  statement  as  to 
the  receipt  of  the  goods,  or  as  to  any  other  matter,  or 
who,  with  intent  to  defraud,  violates,  or  fails  to  comply 
with,  or  aids  in  any  violation  of,  or  failure  to  comply 
with  any  provision  of  this  Act,  shall  be  guilty  of  a  mis- 
demeanor, and,  upon  conviction,  shall  be  punished  for 
each  offense  by  imprisonment  not  exceeding  five  years, 
or  by  a  fine  not  exceeding  five  thousand  dollars,  or  both.^ 

§  794.  lUeg-al  act  of  common  carrier  by  water.  It  shall 
be  unlawful  for  any  common  carrier  by  water,  or  other 
person  subject  to  this  Act,  either  alone  or  in  conjunc- 
tion with  any  other  person,  directly  or  indirectly — 

First.  To  make  or  give  any  undue  or  unreasonable 
preference  or  advantage  to  any  particular  person,  local- 
ity, or  description  of  traffic  in  any  respect  whatsoever, 
or  to  subject  any  particular  person,  locality,  or  descrip- 
tion of  traffic  to  any  undue  or  unreasonable  prejudice 
or  disadvantage  in  any  respect  whatsoever. 

Second.  To  allow  any  person  to  obtain  transportation 
for  property  at  less  than  the  regular  rates  then  estab- 
lished and  enforced  ou  the  line  of  such  carrier,  by  means 
of  false  billing,  false  classification,  false  weighing,  false 
report  of  weight,  or  l»y  any  otlicr  unjust  or  unfair  de- 
vice or  means. 

Third.  To  intluce,  jjei-suade,  or  oliierwise  iiillueuce 
any  marine  insurance  company  or  underwriter,  or  agent 
thereof,  not  to  give  a  competing  carrier  by  water  as  favor- 
able a  i-atc  of  insurance  on  vessel  or  cargo,  having  due 

6— Sec.    41,    Act    AiiK.    '2'.),    H)ir,, 
Sec.  41,  39  Stat.  544. 


Violations  by  Common  Carrier  719 

regard  to  the  class  of  vessel  or  cargo,  as  is  granted  to 
such  carrier  or  other  person  subject  to  this  Act.'' 

§  795.  Common  carrier  and  its  agent  must  not  disclose 
information  concerning  shipment,  etc.  It  shall  be  unlaw- 
ful for  any  common  carrier  subject  to  the  provisions  of 
this  Act,  or  any  ofiicer,  agent,  or  employee  of  such  com- 
mon carrier,  or  for  any  other  person  or  corporation  law- 
fully authorized  by  such  common  carrier  to  receive  in- 
formation therefrom,  knowingly  to  disclose  to  or  permit 
to  be  acquired  by  any  person  or  corporation  other  than 
the  shipper  or  consignee,  without  the  consent  of  such 
shipper  or  consignee,  any  information  concerning  the 
nature,  kind,  quantity,  destination,  consignee,  or  rout- 
ing of  any  property  tendered  or  delivered  to  such  com- 
mon carrier  for  interstate  transportation,  which  infor- 
mation may  be  used  to  the  detriment  or  prejudice  of 
such  shipper  or  consignee,  or  which  may  improperly  dis- 
close his  business  transactions  to  a  competitor;  and  it 
shall  also  be  unlawful  for  any  person  or  corporation  to 
solicit  or  knowingly  receive  any  such  inforaiation  which 
may  be  so  used:  Provided,  That  nothing  in  this  Act 
shall  be  construed  to  prevent  the  giving  of  such  infor- 
mation in  response  to  any  legal  process  issued  under  the 
authority  of  any  state  or  federal  court,  or  to  any  officer 
or  agent  of  the  Government  of  the  United  States,  or 
of  any  State  or  Territory,  in  the  exercise  of  his  powers, 
or  to  any  officer  or  other  duly  authorized  person  seek- 
ing such  information  for  the  prosecution  of  persons 
charged  with  or  suspected  of  crime ;  or  information  given 
by  a  common  earner  to  another  carrier  or  its  duly  au- 
thorized agent,  for  the  purpose  of  adjusting  mutual  traf- 
fic accounts  in  the  ordinary  course  of  business  of  such 
carriers. 

7— Act    Sept.    7,    1916,    39    Stat. 
7.S4. 


720  Criminal  Law 

Any  person,  corporation,  or  association  violating  any 
of  the  provisions  of  the  next  preceding  paragraph  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and  for 
each  offense,  on  conviction,  shall  pay  to  the  United 
States  a  penalty  of  not  more  than  one  thousand  dollars.* 

§  796.  Refusal  to  carry  mail  by  water-carrier— Punish- 
ment. Provided,  That  out  of  this  appropriation  the  post- 
master-general is  authorized  to  provide  difficult  or  emer- 
gency mail  service  in  Alaska,  including  the  establish- 
ment and  equipment  of  relay  stations,  in  such  manner  as 
he  may  think  advisable,  without  advertising  therefor. 

For  inland  transportation  by  steamboat,  or  other  power- 
boat routes  or  by  aeroplanes,  $1,185,000:  Provided, 
That  the  contract  now  in  force  for  carrying  the  mail  on 
Lake  Winnepesaukee  from  the  postoffice  at  Laconia,  New 
Hampshire,  shall  be  readjusted  so  that  the  yearly  sal- 
ary paid  the  carrier,  who  furnishes  his  own  equipment, 
shall  be  $1,800  per  annum :  Provided  further.  That  here- 
after, when  there  is  no  competition  on  a  route  and  the 
rate  of  compensation  asked  is  excessive,  or  no  proposal 
is  received,  the  postmaster-general  may  require  that  the 
mails  be  candied  as  freight  or  express,  and  it  shall  be 
unlawful  for  any  common  carrier  by  water  to  refuse  to 
carry  the  mails  when  so  required,  and  the  penalty  for 
such  offense  shall  be  a  fine  of  five  hundred  dollars.  Each 
day  of  refusal  shall  constitute  a  separate  offense.^ 

(Beginning  with  the  first  proviso  of  paragraph  on 
"Office  of  the  second  assistant,  etc.,"  including  punish- 
ment.) 

§  797.  Unlawful  to  be  officer  of  more  than  one  carrier — 
Punishment.     "(12)   Aflcr  December  31,  1921,  it  shall 

1)L'  iiiil;i\\  rul  for  any  jxtsoii  to  liold  llie  posilioii  of  officer 

8— Act  Auk.  »,  1917,  40  Stat.  272. 
9— Chap.    117,   Act   July   2,    1918, 
40  Stat.  747. 


Violations  by  Common  Carrier  721 

or  director  of  more  than  one  carrier,  unless  such  holding 
shall  have  been  authorized  by  order  of  the  Commission, 
upon  due  showing,  in  form  and  manner  prescribed  by 
the  Commission,  that  neither  public  nor  private  interests 
will  be  adversely  affected  thereby.  After  this  section 
takes  effect  it  shall  be  unlawful  for  any  officer  or  director 
of  any  carrier  to  receive  for  his  own  benefiit,  directly  or 
indirectly,  any  money  or  thing  of  value  in  respect  of  the 
negotiation,  hypothecation,  or  sale  of  any  securities  is- 
sued or  to  be  issued  by  such  carrier,  or  to  share  in  any 
of  the  proceeds  thereof,  or  to  participate  in  the  making 
or  paying  of  any  dividends  of  an  operating  carrier  from 
any  funds  properly  included  in  capital  account.  Any 
violation  of  these  provisions  shall  be  a  misdemeanor,  and 
on  conviction  in  any  United  States  court  having  juris- 
diction, shall  be  punished  by  a  fine  of  not  less  than  one 
thousand  dollars  nor  more  than  ten  thousand  dollars,  or 
by  imprisonment  for  not  less  than  one  year  nor  more 
than  three  years,  or  by  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court."  ^^ 

10— Sec.  489,  Act  March  1,  1920, 
41  Stat.  496. 


C.  L.— 46 


CHAPTER  LV 


COPYRIGHTS  AND  PATENTS 


§  799.  Inserting  or  impression  any 
notice  of  copyright  upon 
any  uncopyrighted  article 
with  fraudulent  intent ; 
punishment. 

§  800.  Any  person  who  shall  wilfully 
and  for  profit  infringe  any 
copyright  secured  by  Act 
March  4,  1909,  guilty  of 
misdemeanor. 

§  801.  Criminal  prosecutions  under 
Copyright  Act,  March  4, 
1909,  must  be  instituted 
within  three  years  after 
cause  of  action  arose. 

§  802.  False  affidavit  to  claim  to 
copyright. 


803.  In  case  Copyright  of  a  book 
officers  showing  that  it  has 
been  printed  from  type  set 
in  the  U.  S. 


804.  Any  person  who  marks  upon 

anything  made,  used  or 
sold  by  him  for  which  he 
has  no  patent,  the  name  of 
the  real  patentee  is  sub- 
ject to  a  penalty. 

805.  In  contests  over  patents,  wit- 

nesses who  refuse  to  testify 
in  disobedience  to  sub- 
poena, guilty  of  contempt. 


§  799.  Inserting-  or  impressing  any  notice  of  copyright 
upon  any  uncopyrighted  article  with  fraudulent  intent 
— Punishment.  Tliat  any  person  wlio,  with  fraudnlont 
intent,  shall  insert  or  impress  any  notice  of  copyright 
required  by  this  Act,  or  words  of  the  same  purport,  in 
or  upon  any  uncopyrighted  article,  or  with  fraudulent 
intent  shall  remove  or  alter  the  copyright  notice  upon 
any  ailiclc  dnly  cojjvri.uliled  shall  he  guilty  of  a  mis- 
demeanor, ])unishal)le  by  a  hne  ol"  not  less  than  one  hun- 
dred dollars  and  not  more  than  one  thousand  dollars. 
Any  perfK)n  who  shall  knowingly  issue  or  sell  any  article 
heiii'inn-  a  notice  ol"  I'nited  States  copyright  which  has 
not  been  eopyri^iited  in  this  country,  or  who  shall  know- 
ingly impoi't  any  article  bearing'  snch  notice  oi'  woi'ds  of 
the   sanu'   purport,   which    has   not    been    c()j)yri,i;lilc(i    in 

722 


Copyrights  and  Patents  723 

this  country,  shall  be  liable  to  a  fine  of  one  hundred  dol- 
lars.^ 

§  800.  Any  person  who  shall  wilfully  and  for  profit  in- 
fringe any  copyright  secured  by  Act  of  March  4,  1909 
guilty  of  misdemeanor.  That  any  person  who  wilfully 
and  for  profit  shall  infringe  any  copyright  secured  by 
this  Act,  or  who  shall  knowingly  and  wilfully  aid  or 
abet  such  infringement,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall  be  punished 
by  imprisonment  for  not  exceeding  one  year  or  by  a 
fine  of  not  less  than  one  hundred  dollars  nor  more  than 
one  thousand  dollars,  or  both,  in  the  discretion  of  the 
court:  Provided,  however.  That  nothing  in  this  Act  shall 
be  so  construed  as  to  prevent  the  performance  of  religious 
or  secular  works  such  as  oratorios,  cantatas,  masses,  or 
octavo  choruses  by  public  schools,  church  choirs,  or  vocal 
societies,  rented,  borrowed,  or  obtained  from  some  public 
library,  public  school,  church  choir,  school  choir,  or  vocal 
society,  provided  the  performance  is  given  for  charitable 
or  educational  purposes  and  not  for  profit.^ 

§  801.  Criminal  prosecutions  under  Copyright  Act, 
March  4, 1909,  must  be  instituted  within  three  years  after 
cause  of  action  arose.  That  no  criminal  proceeding  shall 
be  maintained  under  the  provisions  of  this  Act  unless 
the  same  is  commenced  within  three  years  after  the  cause 
of  action  arose.* 

§  802.  False  affidavit  to  claim  to  copyright.  That  any 
person  who,  for  the  purpose  of  obtaining  registration 
of  a  claim  to  copyright,  shall  knowingly  make  a  false 
affidavit  as  to  his  having  complied  with  the  above  con- 
ditions   (Section  16,  Act  of  March  4,   1909),   shall  be 

1— Sec.  29,  Act  Mar.  4,  1909,  35  3— Sec.  39,  Act  Mar.  4,  1909,  35 
Stat.  1082.  Stat.  1084. 

2— Sec.  28,  Act  Mar.  4,  1909,  35 
Stat.  1082. 


724  Criminal  Law 

deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  by  a  fine  of  not  more  than  one 
thousand  dollars,  and  all  of  his  rights  and  privileges 
under  said  copyright  shall  be  forfeited.* 

§  803.  In  case  copyright  of  a  book,  officers  showing  that 
it  has  been  printed  from  type  set  in  the  United  States. 
In  the  case  of  the  book  the  copies  so  deposited  shall  be 
accompanied  by  an  affidavit,  under  the  official  seal  of  any 
officer  authorized  to  administer  oaths  within  the  United 
States,  duly  made  by  the  person  claiming  copyright  or 
by  his  duly  authorized  agent  or  representative  residing 
in  the  United  States,  or  by  the  printer  who  has  printed 
the  book,  setting  forth  that  the  copies  deposited  have 
been  printed  from  type  set  within  the  limits  of  the  United 
States  or  from  plates  made  within  the  limits  of  the  United 
States  from  type  set  therein;  or,  if  the  text  be  produced 
by  lithographic  process,  or  photo-engraving  process,  that 
such  process  was  wholly  performed  within  the  limits  of 
the  United  States,  and  that  the  printing  of  the  text  and 
binding  of  the  said  book  have  also  been  performed  within 
the  limits  of  the  United  States.  Such  affidavit  shall  state 
also  the  place  where  and  the  establishment  or  establish- 
ments in  which  such  type  was  set  or  plates  were  made 
or  lithographic  process,  or  photo-engraving  process  or 
printing  and  binding  were  performed  and  the  date  of  the 
completion  of  the  printing  of  the  book  or  the  date  of 
publication.^ 

PATENTS 

§804.  Any  person  who  marks  upon  anything  made, 
used  or  sold  by  him,  for  which  he  has  no  patent,  the  name 
of  the  real  patentee,  is  subject  to  a  penalty.  Every  per- 
son wlio,  ill  any  manner,  mai-ks  upon  anything  made, 
used,  or  sold  by   liini  for  wliicli   lie   lias  not  obtained  a 

4— Sec.  17,  Act  Mar.  4,  1909,  35  5— Sec.  16,  Act  Mar.  4,  1909,  35 

Stat.  1079.  Stat.  1079. 


Copyrights  and  Patents  725 

patent,  the  name  or  any  imitation  of  the  name  of  any 
person  who  has  obtained  a  patent  therefor  without  the 
consent  of  such  patentee,  or  liis  assigns  or  legal  represen- 
tatives; or 

Who,  in  any  manner,  marks  upon  or  affixes  to  any 
patented  article  the  word  ''patent"  or  ''patentee,"  or  the 
"letters-patent,"  or  any  word  of  like  import,  with  in- 
tent to  imitate  or  counterfeit  the  mark  or  device  of  the 
patentee,  without  having  the  license  or  consent  of  such 
patentee  or  his  assigns  or  legal  representatives;  or 

Who,  in  any  manner,  marks  upon  or  affixes,  to  any 
unpatented  article  the  word  "patent,"  or  any  word  im- 
porting that  the  same  is  patented,  for  the  purpose  of 
deceiving  the  public,  shall  be  liable  for  every  such  of- 
fense, to  a  penalty  of  not  less  than  one  hundred  dollars, 
with  costs;  one-half  of  said  penalty  to  the  person  who 
shall  sue  for  the  same,  and  the  other  for  the  use  of  the 
United  States  to  be  recovered  by  suit,  in  any  district 
court  of  the  United  States  within  whose  jurisdiction  such 
offense  may  have  been  committed.® 

§  805.  In  contests  over  patents  witnesses  who  refuse  to 
testify  in  disobedience  to  subpoena,  guilty  of  contempt. 

Whenever  any  witness,  after  being  duly  served  with  such 
subpoena,  neglects  or  refuses  to  appear,  or  after  appear- 
ing, refuses  to  testify,  the  judge  of  the  court  whose  clerk 
issued  the  subpoena  may,  on  proof  of  such  neglect  or 
refusal,  enforce  obedience  to  the  process,  or  punish  the 
disobedience,  as  in  other  like  cases.  But  no  witness  shall 
be  deemed  guilty  of  contempt  for  disobeying  such  sub- 
poena, unless  his  fees  and  traveling  expenses  in  going 
to,  returning  from  and  one  day's  attendance  at  the  place 
of  examination,  are  paid  or  tendered  him  at  the  time  of 
the  service  of  the  subpoena;  nor  for  refusing  to  disclose 
any  secret  invention  or  discovery  made  or  owned  by  him- 
self.' 

6— E.  S.  4901,  Act  July  8,  1870,     7— Act  July  8,  1870,  R.  S.  4908, 
16  Stat.  203.  16  Stat.  204. 


CHAPTER  LVI 


CUEEENCY  AND  COINAGE 


CHAPTER  SEVEN 


Offenses  Against  the  Currency,  Coinage,  etc. 
Penal  Code  Act,  March  4,  1909 


§  807.  Obligation    or    other   security       §  820. 
of    the    United    States    de- 
fined. §  821. 

§  808.  Forging      or      counterfeiting 
United  States  securities. 

§  809.  Counterfeiting    national-bank       §  822. 
notes. 

§  810.  Using   plates    to    print    notes       §  823. 
without  authority,  etc. 

§811.  Passing,    selling,    concealing,       §824. 
etc.,  forged  obligations.  §  825. 

§  812.  Taking   impressions   of   tools, 

implements,  etc.  §  826. 

§  813.  Having    in   possession   unlaw- 
fully   such    impressions.  §  827. 

§  814.  Buying,  selling,  or  dealing  in 

forged  bonds,  notes,  etc.  §  828. 

§  81.3.  Secreting    or    removing    tools 

or  material  used  for  print-       §  829. 

iiig    l)onds,    notes,    stamps, 

etc.  §  830. 

§  816.  Counterfeiting    notes,    bonds, 

etc.,     of     foreign     govern-       §  831. 
ments. 

§  817.  Passing    such     forged    notes, 
bonds,  etc. 

8  818.  Counterfeiting    nofes    of    for-       §832. 
cign   tiankfl. 

§  819.   I'asHing  Huch  eouiifcrfeif  Imiik 
notes. 

726 


Having  in  possession  such 
forged  notes,  bonds,  etc. 

Having  unlawfully  in  posses- 
sion or  using  plates  for 
such  notes,  bonds,  etc. 

Connecting  parts  of  different 
instruments. 

Counterfeiting  gold  or  silver 
coins  or  bars. 

Counterfeiting  minor  coins. 

Falsifying,  mutilating,  or 
lightening  coinage. 

Debasement  of  coinage  by  of- 
ficers of  the  mint. 

Making  or  uttering  coins  in 
reseml)lance    of    money. 

Making  or  issuing  devices  of 
minor   coins. 

Counterfeiting,  etc.,  dies  for 
coins  of  the  United  States. 

Counterfeiting,  etc.,  dies  for 
foreign   coins. 

Making,  importing,  or  having 
in  possession  tokens,  prints, 
etc.,  similar  to  United 
States  or  foreign  coins. 

Counterfeit  obligations,  se- 
curities, coins,  or  material 
for  e,(>unt<'rf<'i1  ing,  to  be 
forfeited. 


Currency  and  Coinage  727 

§  833.  Issue   of  search  warrant   for  §  836.  Mutilating    or    defacing    na- 

suspccted  counterfeits,  etc.,  tional-bank  notes. 

forfeiture.  §  837.  Imitating    United    States   se- 

§  834.  Circulating    bills    of    expired  curities    or    printing    busi- 

corporations.  ness  cards  on  them. 

§  835.  Imitating  national-bank  notes  §  838.  Notes   of   less   than  one   dol- 

with       printed       advertise-  lar  not  to  be  issued. 

ments  thereon. 

§  807.  * '  Oblig-ation  or  other  security  of  the  United 
States"  defined.  Sec.  147.  The  words  ''obligations  or 
other  security  of  the  United  States"  shall  be  held  to 
mean  all  bonds,  certificates  of  indebtedness,  nation-bank 
currency,  coupons.  United  States  notes,  treasury  notes, 
gold  certificates,  silver  certificates,  fractional  notes,  cer- 
tificates of  deposit,  bills,  checks,  or  drafts  for  money, 
drawn  by  or  upon  authorized  officers  of  the  United  States, 
stamps  and  other  representatives  of  value,  of  whatever 
denomination,  which  have  been  or  may  be  issued  under 
any  act  of  congress. 

§  808.  Forging  or  counterfeiting  United  States  securi- 
ties. Sec.  148.  AVlioever,  with  intent  to  defraud,  shall 
falsely  make,  forge,  counterfeit,  or  alter  any  obligation 
or  other  security  of  the  United  States  shall  be  fined  not 
more  than  five  thousand  dollars  and  imprisoned  not  more 
than  fifteen  years. 

§  809.  Counterfeiting  national  bank  notes.  Sec.  149. 
Whoever  shall  falsely  make,  forge,  or  counterfeit,  or 
cause  or  procure  to  be  made,  forged,  or  counterfeited, 
or  shall  willingly  aid  or  assist  in  falsely  making,  forg- 
ing or  counterfeiting,  any  note  in  imitation  of,  or  pur- 
porting to  be  in  imitation  of,  the  circulating  notes  issued 
by  any  banking  association  now  or  hereinafter  author- 
ized and  acting  under  the  laws  of  the  United  States;  or 
whoever  shall  pass,  utter,  or  publish,  or  attempt  to  pass, 
utter,  or  publish,  any  false,  forged,  or  counterfeited  note, 
purporting  to  be  issued  by  any  such  association  doing  a 


728  Crimxn-al  Law 

banking  business,  knowing  the  same  to  be  falsely  made, 
forged,  or  counterfeited;  or  whoever  shall  falsely  alter, 
or  cause  or  procure  to  be  falsely  altered,  or  shall  will- 
ingly aid  or  assist  in  falsely  altering,  any  such  circu- 
lating notes,  or  shall  pass,  utter,  or  publish,  or  attempt 
to  pass,  utter,  or  publish  as  true,  any  falsely  altered  or 
spurious  circulating  note  issued,  or  purporting  to  have 
been  issued,  by  any  such  banking  association,  knowing 
the  same  to  be  falsely  altered  or  spurious,  shall  be  fined 
not  more  than  one  thousand  dollars  or  imprisoned  not 
more  than  fifteen  years. 

§  810.  Using  plates  or  print  notes  without  authority, 
etc.  Sec.  150.  "Whoever,  having  control,  custody,  or  pos- 
session of  any  plate,  stone,  or  other  thing,  or  any  part 
thereof,  from  which  has  been  printed,  or  which  may  be 
prepared  by  direction  of  the  Secretary  of  the  Treasury 
for  the  puiTOOse  of  printing,  any  obligation  or  other  se- 
curity of  the  United  States,  shall  use  plate,  stone,  or 
other  thing,  or  any  part  thereof,  or  knowingly  suffer  the 
same  to  be  used  for  the  purpose  of  printing  any  such  or 
similar  obligation  or  other  security,  or  any  part  thereof, 
except  as  may  be  printed  for  the  use  of  the  United  States 
by  order  of  the  proper  officer  thereof;  or  whoever  by 
any  way,  art,  or  means  shall  make  or  execute,  or  cause 
or  procure  to  be  made  or  executed,  or  shall  assist  in 
making  or  executing  any  plate,  stone  or  other  thing  in 
the  likeness  of  any  plate  designated  for  the  printing  of 
such  obligation  or  otliei-  security;  or  whoever  shall  sell 
any  such  plate,  stone,  or  otlicr  thing,  or  bring  into  the 
United  States  or  any  place  subject  to  the  jurisdiction 
thereof,  from  any  foreign  place,  any  such  plate,  stone, 
or  otlicr  tiling,  except  under  tlie  direction  of  the  Secre- 
t;iry  of  the  Treasnry  oi-  other  propci-  oriicer,  or  witli  any 
other  intent,  in  either  (•.■isc,  tliaii  that  sucii  ])hit(',  stone, 
or  other  thing,  he  used  Tor  the  printing  of  tlu^  obliga- 
tions or  other  securities  (►f  the  Unit-ed  States;  or  who- 
ever shall  lia\e  in  his  eoiitri»l.  eusto<ly,  or  possession  any 


CUR^ENCV    AND    CoiNAGE  729 

plate,  stone,  or  other  tliin.^-  in  any  manner  made  after  or 
in  tlie  similitude  of  any  plate,  stone,  or  other  thing,  from 
which  any  such  obligation  or  other  security  has  been 
printed,  with  intent  to  use  such  plate,  stone,  or  other 
thing,  or  to  suffer  the  same  to  be  used  in  forging  or 
counterfeiting  any  such  obligation  or  other  security,  or 
any  part  thereof;  or  whoever  shall  have  in  his  posses- 
sion or  custody,  except  under  authority  from  the  Sec- 
retary of  the  Treasury  or  other  proper  officer,  any  obli- 
gation or  other  security  made  or  executed,  in  whole  or 
in  part,  after  the  similitude  of  any  obligation  or  other 
security  issued  under  the  authority  of  the  United  States, 
with  intent  to  sell  or  otherwise  use  the  same;  or  who- 
ever shall  print,  photograph,  or  in  any  other  manner 
make  or  execute,  or  cause  to  be  printed,  photographed, 
made,  or  executed,  or  shall  aid  in  printing,  photograph- 
ing, making  or  executing  any  engraving,  photograph, 
print,  or  impression  in  the  likeness  of  any  such  obliga- 
tion or  other  security,  or  any  part  thereof,  or  shall  sell 
any  such  engraving,  photograph,  print,  or  impression, 
except  to  the  United  States,  or  shall  bring  into  the  United 
States  or  any  place  subject  to  the  jurisdiction  thereof, 
from  any  foreign  place  any  such  engraving,  photograph, 
print,  or  impression,  except  by  the  direction  of  some 
proper  officer  of  the  United  States;  or  whoever  shall 
have  or  retain  in  his  control  or  possession,  after  a  dis- 
tinctive paper  has  been  adopted  by  the  Secretary  of 
the  Treasuiy  for  the  obligations  and  other  securities 
of  the  United  States,  any  similar  paper  adapted  to  the 
making  of  any  such  obligation  or  other  security,  ex- 
cept under  the  authority  of  the  Secretary  of  the  Treas- 
ury or  some  other  proper  officer  of  the  United  States, 
shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  fifteen  years,  or  both. 

§  811.  Passing,  selling,  concealing,  etc.,  forged  obli- 
gations. Sec.  151.  Whoever,  with  intent  to  defraud, 
shall  pass,  utter,  publish,  or  sell,  or  attempt  to  pass. 


730  Ckiminax,  Law 

utter,  publish,  or  sell,  or  shall  bring  into  the  United 
States  or  any  place  subject  to  the  jurisdiction  thereof, 
with  intent  to  pass,  publish,  utter,  or  sell,  or  shall  keep 
in  possession  or  conceal  with  like  intent,  any  falsely 
made,  forged,  counterfeited,  or  altered  obligation  or  other 
security  of  the  United  States,  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than 
fifteen  years. 

§812.  Taking  impressions  of  tools,  implements,  etc. 

Sec.  152.  Whoever,  without  authority  from  the  United 
States,  shall  take,  procure,  or  make,  upon  lead,  foil, 
wax,  plaster,  paper,  or  any  other  substance  or  material, 
an  impression,  stamp,  or  imprint  of,  from,  or  by  the  use 
of  any  bedplate,  bedpiece,  die,  roll,  plate,  seal,  type, 
or  other  tool,  implement,  instrument,  or  thing  used  or 
fitted  or  intended  to  be  used  in  printing,  stamping,  or 
impressing,  or  in  making  other  tools,  implements,  in- 
struments, or  things  to  be  used  or  fitted  or  intended  to 
be  used  in  printing,  stamping,  or  impressing  any  kind 
or  doscripti-on  of  obligation  or  other  security  of  the 
United  States  now  authorized  or  hereafter  to  be  author- 
ized by  the  United  States,  or  circulating  note  or  evidence 
of  debt  of  any  banking  association  under  the  laws  thereof, 
shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  ten  years,  or  both. 

§813.  Having  in  possession  unlawfully  such  impres- 
sions. Sec.  l.j;>.  Whoever,  witli  intent  to  defraud,  shall 
have  ill  liis  possession,  keeping,  custody,  or  control, 
without  aulhoilly  fidui  the  I'liited  States,  any  imprint, 
stani}),  or  iiujji-essioii,  taken  or  iua(h'  upon  any  substance 
or  material  whatsoe\ei-,  or  any  tool,  ini])lemeut,  instru- 
ment, oi-  thing,  used,  oi'  litted  or  intended  to  he  used, 
foi-  an\-  of  the  |)ur|)oses  iiienlione(l  in  the  iireceding  sec- 
tion; OI-  \vhoe\ei-,  with  intent  to  defraud,  shall  sell,  give, 
OI-   deliver   any    such    imprint,    staiiip,    or    impression    to 


CUERENCY    AND    CoiNAGE  731 

any  other  person,  shall  be  fined  not  more  than  five  thou- 
sand dollars,  or  imprisoned  not  more  than  ten  years, 
or  both. 

§  814.  Buying-,  selling,  or  dealing  in  forged  bonds, 
notes,  etc.  Sec.  154.  Whoever  shall  buy,  sell,  exchange, 
transfer,  receive,  or  deliver,  any  false,  forged,  counter- 
feited, or  altered  obligation  or  other  security  of  the 
United  States,  or  circulating  note  of  banking  associa- 
tion organized  or  acting  under  the  laws  thereof,  which 
has  been  or  may  hereafter  be  issued  by  virtue  of  any 
act  of  Congress,  with  the  intent  that  the  same  be  passed, 
published,  or  used  as  true  and  genuine,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  ten  years,  or  both. 

§  815.  Secreting,  or  removing  tools  or  material  used 
for  printing  bonds,  notes,  stamps,  etc.  Sec.  155.  Who- 
ever, without  authority  from  the  United  States,  shall 
secrete  within,  embezzle,  or  tal^e  and  carry  away  from 
any  building,  room,  office,  apartment,  vault,  safe,  or  other 
place  w^here  the  same  is  kept,  used,  employed,  placed, 
lodged,  or  deposited  by  authority  of  the  United  States, 
any  bed  piece,  bed  plate,  roll,  plate,  die,  seal,  type,  or 
other  tool,  implement,  or  thing  used,  or  fitted  to  be  used 
in  stamping  or  printing,  or  in  making  some  other  tool 
or  implement  used  or  fitted  to  be  used  in  stamping  or 
printing  any  kind  or  description  of  bond,  bill,  note,  cer- 
tificate, coupon,  postage  stamp,  revenue  stamp,  fractional 
currency  note,  or  other  paper,  instrument,  obligation, 
device,  or  document,  now  or  hereafter  authorized  by 
law  to  be  printed,  stamped,  sealed,  prepared,  issued, 
uttered,  or  put  in  circulation  on  behalf  of  the  United 
States;  or  whoever,  without  such  authority,  shall  so 
secrete,  embezzle,  or  take  and  carry  away  any  paper, 
parchment  or  other  material  prepared  and  intended  to 
be  used  in  the  making  of  any  such  papers,  instruments, 


732  Criminal  Law 

obligations,  devices,  or  documents;  or  whoever,  without 
such  authority  shall  so  secrete,  embezzle,  or  take  and 
cany  away  any  paper,  parchment,  or  other  material 
printed  or  stamped,  in  whole  or  part,  and  intended  to 
he  prepared,  issued,  or  put  in  circulation  on  behalf  of 
the  United  States  as  one  of  the  papers,  instruments, 
or  obligations  hereinbefore  named,  or  printed  or  stamped, 
in  whole  or  part,  whether  intended  to  issue  or  put  the 
same  in  circulation  or  not,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  ten 
years,  or  both. 

§816.  Counterfeiting  notes,  bonds,  etc.,  of  foreign 
government.  Sec.  156.  Whoever,  within  the  United 
States,  or  any  place  subject  to  the  jurisdiction  thereof, 
with  intent  to  defraud,  shall  falsely  make,  alter,  forge, 
or  counterfeit  any  bond,  certificate,  obligation,  or  other 
security  in  imitation  of,  or  purporting  to  be  an  imita- 
tion of,  any  bond,  certificate,  obligation,  or  other  security 
of  any  foreign  government,  issued  or  put  forth  under 
the  authority  of  such  foreign  government,  or  any  treas- 
ury note,  bill,  or  promise  to  pay  issued  by  such  foreign 
government,  and  intended  to  circulate  as  money,  either 
by  law,  order,  or  decree  of  such  foreign  government; 
or  whoever  shall  cause  or  secure  to  be  so  falsely  made, 
altered,  forged,  or  counterfeited,  or  shall  knowingly  aid 
or  assist  in  making,  altering,  forging,  or  counterfeiting, 
any  such  bond,  certificate,  obligation,  or  other  security, 
or  any  such  treasury  note,  bill,  or  promise  to  pay,  in- 
tended as  aforesaid  to  circulate  as  money,  shall  be  fined 
not  more  tliaii  five  thousand  dollars,  and  imprisoned  not 
niore  tiian  five  years. 

§  817.  Passing  such  forged  note,  bonds,  etc.  Sec.  157. 
Wlioever  witliin  tlic  I'liitcd  States  or  any  jjlacc  sul)je('t 
to  the  jurisdiction  tlicrcol',  knowingly  and  with  intcMit 
to  dcfi-and,  sliali  uttrr,  ])ass,  oi-  j)ul   off,  in  payment  or 


Currency  and  Coinage  733 

negotiation,  any  false,  forged,  or  counterfeited  bond, 
certificate,  obligation,  security,  treasuary  note,  bill,  or 
promise  to  pay,  mentioned  in  the  section  last  preceding, 
whether  the  same  was  made,  altered,  forged,  or  counter- 
feited within  the  United  States  or  not,  shall  be  fined 
not  more  than  three  thousand  dollars  and  imprisoned 
not  more  than  three  years. 

§  818.  Counterfeiting  notes  on  foreign  bank.  Sec.  158. 
Whoever,  within  the  United  States  or  any  place  sub- 
ject to  the  jurisdiction  thereof,  with  intent  to  defraud, 
shall  falsely  make,  alter,  forge  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  assist  in  the  false  mak- 
ing, altering,  forging,  or  counterfeiting  of  any  bank 
note  or  bill,  issued  by  a  bank  or  corporation  of  any  for- 
eign country,  and  intended  by  the  law  of  usage  of  such 
foreign  countiy  to  circulate  as  money,  such  bank  or  cor- 
poration being  authorized  by  the  laws  of  such  countr^^, 
shall  be  fined  not  more  than  two  thousand  dollars  and 
imprisoned  not  more  than  two  years. 

§  819.  Passing  such  counterfeit  bank  note.  Sec.  159. 
Whoever,  within  the  United  States  or  any  place  subject 
to  the  jurisdiction  thereof,  shall  utter,  pass,  put  off,  or 
tender  in  payment  with  intent  to  defraud,  any  such  false, 
forged,  altered,  or  counterfeited  bank  note  or  bill,  as 
mentioned  in  the  preceding  section  [818],  knowing  the 
same  to  be  false,  forged,  altered,  and  counterfeited, 
whether  the  same  was  made,  forged,  altered,  or  counter- 
feited within  the  United  States  or  not,  shall  be  fined 
not  more  than  one  thousand  dollars  and  imprisoned  not 
more  than  one  year. 

§  820.  Having  in  possession  such  forged  notes,  bonds, 
etc.  Sec.  160.  Whoever,  within  the  United  States  or 
any  place  subject  to  the  jurisdiction  thereof,  shall  have 
in  his  possession  any  false,  forged,  or  counterfeit  bond, 


734  Criminal,  Law 

certificate,  obligation,  security,  treasury  note,  bill, 
promise  to  pay,  bank  note,  or  bill  issued  by  a  bank  or 
corporation  of  any  foreign  countiy,  with  intent  to  utter, 
pass,  or  put  off  the  same,  or  to  deliver  the  same  to  any 
other  person  with  intent  that  the  same  may  thereafter 
be  uttered,  passed,  or  put  off  as  true,  or  shall  knowingly 
deliver  the  same  to  any  other  person  with  such  intent, 
shall  be  fined  not  more  than  one  thousand  dollars  and 
imprisoned  not  more  than  one  year. 

§  821.  Haying-  unlawfully  in  possession  or  using  plates 
for  such  notes,  bonds,  etc.  Sec.  161.  Whoever,  within 
the  United  States  or  any  place  subject  to  the  jurisdic- 
tion thereof,  except  by  lawful  authority,  shall  have  con- 
trol, custody,  or  possession  of  any  plate,  stone,  or  other 
thing,  or  any  part  thereof,  from  which  has  been  printed 
or  may  be  printed  any  counterfeit  note,  bond,  obliga- 
tion, or  other  security,  in  whole  or  in  part,  of  any  foreign 
government,  bank,  or  corporation,  or  shall  use  such  plate, 
stone,  or  other  thing,  or  knowingly  permit  or  suffer  the 
same  to  be  used  in  counterfeiting  such  foreign  obliga- 
tion, or  any  part  thereof;  or  whoever  shall  make  or 
engrave,  or  cause  or  procure  to  be  made  or  engraved, 
or  shall  assist  in  making  or  engi'aving,  any  plate,  stone, 
or  other  thing,  in  the  likeness  or  similitude  of  any  plate, 
stone,  or  other  thing  designated  for  the  printing  of  the 
genuine  issue  of  the  obligations  of  any  foreign  govern- 
ment, bank,  or  corporation;  or  wlioever  shall  print, 
photograph,  or  in  any  other  manner  make,  execute,  or 
sell,  or  cause  to  be  printed,  photographed,  made,  exe- 
cuted, or  sold,  or  sliall  aid  in  printing,  ])hotographing, 
making,  executing,  or  sellini!:,  any  engraving,  ])lioto- 
grapli,  pi-iiil,  (»!•  impression  in  llie  likeness  of  any  gen- 
uine note,  bond,  (»l)ligaii()n,  or  olliei-  security,  or  any 
part  tlnTeot",  of  any  foreign  goxcinnient,  ])ank,  or  cor- 
])oration;  or  wliocxci"  sliail  l)ring  into  the  United  States, 
or    anv    phier    snhject    to    llic    Jnrixlietion    thereof,    any 


Currency  and  Coinage  735 

counterfeit  plate,  stone,  or  other  thing,  or  engraving, 
photograph,  print,  or  other  impression  of  the  notes, 
bonds,  obligations,  or  other  securities  of  other  foreign 
governments,  bank,  or  corporation,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both. 

§  822.  Connecting  parts  of  different  instruments.     Sec. 

162.  Whoever  shall  so  place  or  connect  together  dif- 
ferent parts  of  two  or  more  notes,  bills,  or  other  genuine 
instruments  issued  under  the  authority  of  the  United 
States,  or  by  any  foreign  government,  or  corporation, 
as  to  produce  one  instrument,  with  intent  to  defraud, 
shall  be  deemed  guilty  of  forgery  in  the  same  manner 
as  if  the  parts  so  put  together  were  falsely  made  or 
forged,  and  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 

§  823.  Counterfeiting  gold  or  silver  coins  or  bars.     Sec. 

163.  Whoever  shall  falsely  make,  forge,  or  counterfeit, 
or  cause  or  procure  to  be  falsely  made,  forged,  or  counter- 
feited, or  shall  willingly  aid  or  assist  in  falsely  making, 
forging,  or  counterfeiting  any  coin  or  bars  in  resem- 
blance or  similitude  of  the  gold  or  silver  coins  or  bars 
which  have  been,  or  hereafter  may  be,  coined  or  stamped 
at  the  mints  and  assay  offices  of  the  United  States,  or 
in  resemblance  or  similitude  of  any  foreign  gold  or  silver 
coin  which  by  law  is,  or  hereafter  may  be,  current  in  the 
United  States,  or  are  in  actual  use  and  circulation  as 
money  within  the  United  States;  or  whoever  shall  pass, 
utter,  publish,  or  sell,  or  attempt  to  pass,  utter,  publish, 
or  sell,  or  bring  into  the  United  States  or  any  place 
subject  to  the  jurisdiction  thereof,  from  any  foreign 
place,  knowing  the  same  to  be  false,  forged,  or  counter- 
feit, with  intent  to  defraud  any  body,  politic  or  corporate, 
or  any  person  or  persons  whomsoever,  or  shall  have  in 
his  possession  any  such  false,  forged,  or  counterfeit  coins 


736  Ceiminal  Law 

or  bars,  knowing  the  same  to  be  false,  forged,  or  counter- 
feited, with  intent  to  defraud  any  body,  politic  or  cor- 
porate, or  any  person  or  persons  whomsoever,  shall  be 
fined  not  more  than  five  thousand  dollars  and  imprisoned 
not  more  than  ten  years. 

§824.  Counterfeiting  minor  coins.  Sec.  164.  Who- 
ever shall  falsely  make,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  forged,  or  counterfeited, 
or  shall  willingly  aid  or  assist  in  falsely  making,  forging, 
or  counterfeiting  any  coin  in  the  resemblance  or  simili- 
tude of  any  of  the  minor  coins  which  have  been,  or  here- 
after may  be,  coined  at  the  mints  of  the  United  States; 
or  whoever  shall  pass,  utter,  publish,  or  sell,  or  bring 
into  the  United  States  or  any  place  subject  to  the  juris- 
diction thereof,  from  any  foreign  place,  or  have  in  his 
possession  any  such  false,  forged  or  counterfeited  coin, 
with  intent  to  defraud  any  person  whomsoever,  shall  be 
fined  not  more  than  one  thousand  dollars  and  imprisoned 
not  more  than  three  j^ears. 

§825.  Falsifying,  mutilating,  cr  lightening  coinage. 
Sec.  165.  Whoever,  fraudulently,  by  any  art,  way,  or 
means,  shall  deface,  mutilate,  impair,  diminish,  falsify, 
scale,  or  lighten,  or  cause  or  procure  to  be  fraudulently 
defaced,  mutilated,  impaired,  diminished,  falsified, 
scaled,  or  lightened,  or  willingly  aid  or  assist  in  fraudu- 
lently defacing,  mutilating,  impairing,  diminishing,  fal- 
sifying, scaling,  or  lightening,  the  gold  or  silver  coins 
which  liavc  l)eeii,  or  wliich  may  hereafter  be,  coined  at 
the  mints  of  the  United  States,  or  any  foreign  gold  or 
silver  coins  which  are  by  law  made  current  or  are  in 
actual  use  or  circulation  as  money  within  the  United 
States  or  in  nny  jjlace  subject  to  the  jurisdiction  thereof; 
or  wlioever  shall  |)ass,  utter,  publish,  or  sell,  or  attempt 
to  pass,  utter,  i)ul)lisii,  or  sell,  ov  bring  into  th(>  United 
States  or  any  place  subject  to  llie  jniisdiclion   1  hereof, 


Currency  and  Coinage  737 

from  any  foreign  place,  knowing  the  same  to  be  defaced, 
mutilated,  impaired,  diminished,  falsified,  scaled,  or 
lightened,  with  intent  to  defraud  any  person  whomso- 
ever, or  shall  have  in  his  possession  any  such  defaced, 
mutilated,  impaired,  diminished,  falsified,  scaled,  or 
lightened  coin,  knowing  the  same  to  be  defaced,  mu- 
tilated, impaired,  diminished,  falsified,  scaled,  or  light- 
ened, with  intent  to  defraud  any  person  whomsoever, 
shall  be  fined  not  more  than  two  thousand  dollars  and 
imprisoned  not  more  than  five  years. 

§  826.  Debasement  of  coinage  by  officers  of  the  mint. 

Sec.  166.     If  any  of  the  gold  or  silver  coins  struck  or 
coined  at  any  of  the  mints  of  the  United  States  shall 
be  debased,  or  made  worse  as  to  the  proportion  of  fine 
gold  or  fine  silver  therein  contained,  or  shall  be  of  less 
weight  or  value  than  the  same  ought  to  be,  pursuant 
to  law,  or  if  any  of  the  scales  or  weights  used  at  any 
of  the  mints  or  assay  offices  of  the  United  States  shall 
be  defaced,  altered,  increased,  or  diminished  through  the 
fault  or  connivance  of  any  officer  or  person  employed 
at  the  said  mints  or  assay  offices,  with  a  fraudulent  in- 
tent; or  if  any  such  officer  or  person  shall  embezzle  any 
of  the  metals  at  any  time  committed  to  his  charge  for 
the  purpose  of  being  coined,  or  any  of  the  coins  struck 
or  coined  at  the  said  mints,  or  any  medals,  coins,  or  other 
moneys  or  said  mints  or  assay  offices  at  any  time  com- 
mitted to  his  charge,  or  of  which  he  may  have  assumed 
the  charge,  every  such  officer  or  person  who  commits 
any  of  the  said  offenses  shall  be  fined  not  more  than  ten 
thousand  dollars  and  imprisoned  not  more  than  ten  years. 

§  827.  Making  or  uttering  coins  in  resemblance  of 
money.  Sec.  167.  Whoever,  except  as  authorized  by 
law,  shall  make  or  cause  to  be  made,  or  shall  utter  or 
pass,  or  attempt  to  utter  or  pass,  any  coins  of  gold  or 
silver  or  other  metal,  or  alloys  of  metals,  intended  for 

C.  L.— 47 


738  Criminal  Law 

the  use  and  purpose  of  current  money,  whether  in  the 
resemblance  of  coins  of  the  United  States  or  of  foreign 
countries,  or  of  original  design,  shall  be  fined  not  more 
than  three  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both. 

§  828.  Making  or  issuing  devices  of  minor  coins.  Sec. 
168.  "Whoever,  not  lawfully  authorized,  shall  make, 
issue,  or  pass,  or  caused  to  be  made,  issued,  or  passed, 
any  coin,  card,  token,  or  device  in  metal,  or  its  com- 
pounds, which  may  be  intended  to  be  used  as  money 
for  any  one-cent,  two-cent,  three-cent,  five-cent,  now  or 
hereafter  authorized  by  law,  or  for  coins  of  equal  value, 
shall  be  fined  not  more  than  one  thousand  dollars  and 
imprisoned  not  more  than  five  years. 

§  829.  Counterfeiting,  etc.,  dies  for  coins  of  the  United 
States.  Sec.  1G9.  AVhocver,  without  lawful  authority, 
shall  make,  or  cause  or  procure  to  be  made,  or  shall 
willingly  aid  or  assist  in  making,  any  die,  hub,  or  mold, 
or  any  part  thereof,  either  of  steel  or  plaster,  or  any 
other  substance  whatever,  in  the  likeness  or  similitude, 
as  to  the  design  or  the  inscription  thereon,  of  any  die, 
hub,  or  mold  designated  for  the  coining  or  making  of 
any  of  the  genuine  gold,  silver,  nickle,  bronze,  copper, 
or  other  coins  of  the  United  States,  that  have  been  or 
hereafter  may  be  coined  at  the  mints  of  the  United  States; 
or  whoever,  without  lawful  authority,  shall  have  in  his 
possession  any  such  die,  hub,  or  mold,  or  any  part  thereof, 
or  shall  permit  the  same  to  be  used  for  or  in  aid  of 
the  counterfeiting  of  any  of  the  coins  of  the  United 
States  hereinbefore  mentioned,  shall  be  fined  not  more 
than  five  thousand  dollars  and  imprisoned  not  more  than 
ten  years. 

§  830.  Counterfeiting,  etc.,  dies  for  foreign  coins.     Sec. 
170.     Whoever,  within  the  United  States  or  any  place 


CUEKENCY   AND    CoiNAGE  739 

subject  to  the  jurisdiction  thereof,  without  lawful  au- 
thority, shall  make,  or  cause  or  procure  to  be  made,  or 
shall  willingly  aid  or  assist  in  making,  any  die,  hub,  or 
mold,  or  any  part  thereof,  either  of  steel  or  plaster,  or 
any  other  substance  whatever,  in  the  likeness  or  simili- 
tude, as  to  the  design  or  the  inscription  thereon,  of  any 
die,  hub,  or  mold  designated  for  the  coining  of  the  genu- 
ine coin  of  any  foreign  government;  or  whoever,  with- 
out lawful  authority,  shall  have  in  his  possession  any 
such  die,  hub,  or  mold,  or  any  part  thereof,  or  shall  con- 
ceal, or  knowingly  suffer  the  same  to  be  used  for  the 
counterfeiting  of  any  foreign  coin,  shall  be  fined  not 
more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both. 

§  831.  Making,  importing,  or  having  in  possession 
tokens,  prints,  etc.,  similar  to  United  States  or  foreign 
coins.  Sec.  171.  Whoever,  within  the  United  States  or 
any  place  subject  to  the  jurisdiction  thereof,  shall  make, 
or  cause  or  procure  to  be  made,  or  shall  bring  therein, 
from  any  foreign  country,  or  shall  have  in  possession 
with  intent  to  sell,  give  away,  or  in  any  other  manner 
use  the  same,  any  business  or  professional  card,  notice, 
placard,  token,  device,  print,  or  impression,  or  any  other 
thing  whatsoever,  in  the  likeness  or  similitude  as  to 
design,  color,  or  the  inscription  thereon,  of  any  of  the 
coins  of  the  United  States  or  of  any  foreign  country 
that  have  been  or  hereafter  may  be  used  as  money,  either 
under  the  authority  of  the  United  States  or  under  the 
authority  of  any  foreign  govenmient,  shall  be  fined  not 
more  than  one  thousand  dollars.  But  nothing  in  this  sec- 
tion shall  be  construed  to  forbid  or  prevent  the  printing 
and  publishing  of  illustrations  of  coins  and  medals,  or 
the  making  of  the  necessary  plates  for  the  same,  to  be 
used  in  illustrating  numismatic  and  historical  books  and 
journals  and  the  circulars  of  legitimate  publishers  and 
dealers  in  the  same. 


740  Criminal  Law 

§  832.  Counterfeit  obligations,  securities,  coins,  or  ma- 
terial for  counterfeiting-,  to  be  counterfeited.  Sec.  172. 
All  counterfeits  of  any  obligation  or  other  security  of 
the  United  States  or  of  any  foreign  government,  or  coun- 
terfeits of  any  of  the  coins  of  the  United  States  or  of 
any  foreign  government,  and  all  material  or  apparatus 
fitted  or  intended  to  be  used,  or  that  shall  have  been 
used,  in  the  making  of  any  such  counterfeit  obligation 
or  other  security  or  coins  hereinbefore  mentioned,  that 
shall  be  found  in  the  possession  of  any  person  without 
authority  from  the  Secretaiy  of  the  Treasury  or  other 
proper  officer  to  have  the  same,  shall  be  taken  possession 
of  by  any  authorized  agent  of  the  Treasury  Department 
and  forfeited  to  the  United  States,  and  disposed  of  in 
any  manner  the  Secretary  of  the  Treasury  may  direct. 
^Yhoever  having  the  custody  or  control  of  any  such  coun- 
terfeits, material,  or  apparatus  shalk  fail  or  refuse  to 
surrender  possession  thereof  upon  request  by  any  such 
authorized  agent  of  the  Treasury  Department,  shall  be 
fined  not  more  than  one  hundred  dollars,  or  imprisoned 
not  more  than  one  year,  or  both. 

§833.  Issue  of  search  warrants  in  certain  cases  for 
suspected  counterfeit  obligations,  securities,  or  coin,  or 
material  for  counterfeiting,  forfeiture.  Sec.  17;>.  The 
several  judges  of  courts  established  under  the  laws  of 
the  United  States  and  United  States  commissioners  may, 
u])on  ])roper  oath  or  affirmation,  witliin  their  respective 
jurisdictions,  issue  a  searcli  wan-ant  authorizing  any 
marshal  of  the  United  States,  or  any  other  person  spe- 
cially mentioned  in  such  warrant,  to  enter  any  house, 
store,  building,  l)oat,  or  other  place  named  in  such  war- 
r;iii1.  in  wliicli  tlicrc  sliall  apjiear  ])robable  cause  for  be- 
lieving that  tiie  inanHt'acturc  of  counterfeit  money,  or 
tlif  coiiccalnicnt  of  countcrrcit  money,  or  the  manufac- 
Inic  or  concciilincnt  ol'  countcrl'cit  obligations  or  coins 
of  the   Cnitcd  States  of  (»!'  aiiv   foreign   government,  or 


Currency  and  Coinage  741 

the  manufacture  or  concealment  of  dies,  hubs,  molds, 
plates,  or  other  things  fitted  or  intended  to  be  used  for 
the  manufacture  of  counterfeit  money,  coins,  or  obliga- 
tions of  the  United  States  or  of  any  foreign  government, 
or  of  any  bank  doing  business  under  the  authority  of 
the  United  States  or  of  any  State  or  Territory  thereof, 
or  of  any  bank  doing  business  under  the  authority  of 
any  foreign  government,  or  of  any  political  division  of 
any  foreign  government,  is  being  carried  on  or  practiced, 
and  there  search  for  any  such  counterfeit  money,  coins, 
dies,  hubs,  plates,  and  other  things,  and  for  any  such 
obligations,  and  if  any  such  be  found,  to  seize  and  secure 
the  same  and  to  make  return  thereof  to  the  proper  au- 
thority; and  all  such  counterfeit  money,  coins,  dies,  hubs, 
molds,  plates,  and  other  things,  and  all  such  counter- 
feit obligations  so  seized  shall  be  forfeited  to  the  United 
States. 

§  834.  Circulating  bills  of  expired  corporations.  Sec. 
174.  In  all  cases  where  the  charter  of  any  corporation 
which  has  been  or  may  be  created  by  act  of  Congress 
has  expired  or  may  hereafter  expire,  if  any  director, 
officer,  or  agent  of  the  corporation,  or  any  trustee  thereof, 
or  any  agent  of  such  trustee,  or  any  person  having  in 
his  possession  or  under  his  control  the  property  of  the 
corporation  for  the  pui*pose  of  paying  or  redeeming  its 
notes  and  obligations,  shall  knowingly  issue,  reissue,  or 
utter  as  money,  or  in  any  way  knowingly  put  in  circu- 
lation any  bill,  note,  check,  draft,  or  other  security  pur- 
porting to  have  been  made  by  any  such  corporation 
whose  charter  has  expired,  or  by  any  officer  thereof,  or 
purporting  to  have  been  made  under  authority  derived 
therefrom,  or  if  any  person  shall  knowingly  aid  in  any 
such  act,  he  shall  be  fined  not  more  than  ten  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 
But  nothing  herein  shall  be  construed  to  make  it  un- 
lawful for  any  person,  not  being  such  director,  officer. 


742  Criminal  Law 

or  agent  of  the  corporation,  or  any  trustee  thereof,  or 
any  agent  of  such  trustee,  or  any  person  having  in  his 
possession  or  under  his  control  the  property  of  the  cor- 
poration for  the  purpose  hereinbefore  set  forth,  who  has 
received  or  may  hereafter  receive  such  bill,  note,  check, 
draft,  or  other  security,  bona  fide  and  in  the  ordinary 
transaction  of  business,  to  utter  as  money  or  otherwise 
circulate  the  same. 

§  835.  Imitating  national  banking  notes  with  printed 
advertisements  thereon.  Sec.  175.  It  shall  not  be  law- 
ful to  design,  engrave,  print,  or  in  any  manner  make  or 
execute,  or  to  utter,  issue,  distribute,  circulate,  or  use 
any  business  or  professional  card,  notice,  placard,  circu- 
lar, handbill,  or  advertisement  in  the  likeness  or  simili- 
tude of  any  circulating  note  or  other  obligation  or  security 
of  any  banking  association  organized  or  acting  under 
the  laws  of  the  United  States  which  has  been  or  may  be 
issued  under  any  act  of  Congress,  or  to  write,  print,  or 
othenvise  impress  upon  any  such  note,  obligation,  or 
security,  any  business  or  professional  card,  notice  or 
advertisement,  or  any  notice  or  advertisement  of  any 
matter  or  thing  whatever.  Whoever  shall  violate  any 
provision  of  this  section  shall  be  fined  not  more  than  one 
hundred  dollars,  or  imprisoned  not  more  than  six  months, 
or  both. 

§  836.  Mutilating    or    defacing    national    bank    note. 

Sec.  176.  W'liocNci-  shall  iiiutilale,  cut,  deface,  disfigure, 
or  perforate  wilh  lioK's,  oi-  unite  or  cement  together,  or 
do  any  other  thing  to  any  bank  bill,  draft,  note,  or  other 
evidence  of  debt,  issued  by  any  national  banking  asso- 
ciation, or  shall  cause  or  procure  tlie  same  to  be  done, 
witli  intent  to  render  sucli  hniik  Itill,  dinri,  note,  or  other 
evidence  of  debt  unfit  to  ho  reissued  ))y  said  association, 
shall  ]je  fined  not  more  Ihnn  one  hundred  dollai's,  or  im- 
prisoned not  mure  tiinn  six  niontlis,  or  ))()lh. 


Currency  and  Coinage  743 

§837.  Imitating-  United  States  securities  or  printing 
business  cards  on  them.  Sec.  177.  It  shall  not  be  lawful 
to  design,  engrave,  print,  or  in  any  manner  make  or  exe- 
cute, or  to  utter,  issue,  distribute,  circulate,  or  use,  any- 
business  or  professional  card,  notice,  placard,  circular, 
handbill,  or  advertisement,  in  the  likeness  or  similitude 
of  any  bond,  certificate  of  indebtedness,  certificate  of  de- 
posit, coupon.  United  States  note.  Treasury  note,  gold 
certificate,  silver  certificate,  fractional  note,  or  other  ob- 
ligation or  security  of  the  United  States  which  has  been 
or  may  be  issued  under  or  authorized  by  any  act  of  Con- 
gTess  heretofore  passed  or  which  may  hereafter  be 
passed;  or  to  write,  print,  or  otherwise  impress  upon  any 
such  instrument,  obligation,  or  security,  any  business  or 
professional  card,  notice,  or  advertisement,  or  any  notice 
or  advertisement  of  any  matter  or  thing  whatever.  Who- 
ever shall  violate  any  provision  of  this  section  shall  be 
fined  not  more  than  five  hundred  dollars. 

§  838.  Notes  of  less  than  one  dollar  not  to  be  issued. 

Sec.  178.  No  person  shall  make,  issue,  circulate,  or  pay 
out  any  note,  check,  memorandum,  token,  or  other  obliga- 
tion for  a  less  sum  than  one  dollar,  intended  to  circulate 
as  money  or  to  be  received  or  used  in  lieu  of  lawful 
money  of  the  United  States;  and  every  person  so  offend- 
ing shall  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  six  months,  or  both. 


CHAPTER  LVII 


OFFENSES  EELATING  TO  CUSTOMS  AND  DUTIES 


§  840.  Locks  and  fastenings  may  be 
put  on  vessel  by  inspector, 
if  locks  are  broken  master 
is  responsible. 

§  841.  Master  of  any  vessel  who  in- 
tentionally obstructs  officer 
lawfully  going  on  board 
shall   be  punished. 

§  842.  Officers  collecting  imports 
under  authority  of  U.  S. 
shall  own  vessel;  punish- 
ment. 

§  843.  Entering  goods  for  transpor- 
tation with  intent  to  draw 
back  the  duties  and  same 
landed  in  U.  S.  unlawful; 
punishment. 

§  844.  Obliteration  of  any  marks 
put  on  packages  by  revenue 
officer   penal. 

§  845.  Importer  or  proprietor  of 
warehoused  goods  guilty  of 
crime  if  wareliouse  fraudu- 
lently   opened. 

§  846.  Fraudulently  concealing 
goods  from  public  or  pri- 
vate warehouse  guilty  as 
under  Section  l!98G,  11.  S. 

§  847.  It  is  a  felony  for  failure  of 
owner  or  master  to  pro- 
ceed to  port  of  destination. 

S  848.  Fraudulently  and  knowingly 
importing  goods  that  is 
contrary  to  law;  puniHh- 
nient. 

jl  849.  Hcfusing  to  assist  officers  in 
making  search  or  seizure 
misdumcanor. 


§  850.  Unlawful  for  any  officer  of 
U.  S.  to  receive  any  por- 
tion of  informer's  com- 
pensation ;   penalty. 

§  851.  Officer  under  custom  laws  re- 
bating any  fine  or  penalty 
guilty  of  felony. 

§  852.  Any  person  knowingly  and 
wilfully  with  intent  to  de- 
fraud U.  S.  smuggle  any 
goods  into  U.  S.  under  Act 
Feb.    27,    1877;    penalty. 

§  853.  Unauthorized  person  break- 
ing, etc.,  seal  car  or  vessel 
guilty  of   felony. 

§  854.  A  vessel  must  discharge  the 
cargo  in  day  time  unless 
licensed  to  do  otherwise. 

§  855.  Unloading  vessel  in  violation 
Sec.  25,  Act  June  26,  1884; 
penalty. 

§  856.  Under  Act  Oct.  3,  1913,  pro- 
test may  be  filed  against 
the  decision  of  the  collec- 
tor as  to  the  rate  of  cus- 
tom duties  as  to  contingent 
fee  in  respect  to  recovery; 
uiil.'iw  fill ;    |nini^hiii('iit. 

8  857.  Under  -Act  Oct.  3,  1913,  the 
general  appraisers  of  iiicr- 
chandist?  authorized  to  ad- 
minister oaths  to  witnesses. 

S  858.  Wilfully  jiikI  corniiitly  swear- 
ing falsely  by  any  person 
in  examination  l)eforG  gen- 
eral !i])i)r:iiser  of  iiicrcli;!  ii- 
disc. 


'44 


Offenses  Relating  to  Customs  and  Duties     745 

§  859.  Giving  or  offering  to  give  a  §  860.  Any    officer    or    employee   ac- 

bribe    to    employee    of    the  ccpting    bribe     under    Act 

U.    S.,    Act    Oct.    3,    1913;  Oct.    3,    1913;    punishment, 
punishment. 

§  840.  Locks  and  fastenings  may  be  put  on  vessel  by- 
inspector.  If  locks  are  broken  master  is  responsible.  The 

inspector  who  may  be  put  on  board  of  any  vessel  shall 
secure,  after  sunset  in  each  evening,  or  previous  to  his 
quitting  the  vessel,  the  hatches  and  other  communica- 
tions with  the  hold  of  such  vessel,  or  any  other  part  there- 
of he  may  judge  necessary,  with  locks  or  other  proper 
fastening,  which  locks  or  other  fastenings  shall  not  be 
opened,  broken,  or  removed  until  the  morning  following, 
or  after  the  rising  of  the  sun,  and  in  the  presence  of  the 
inspector  by  whom  the  same  were  affixed,  except  by 
special  license  from  the  collector  of  the  port,  and  the 
naval  officer,  if  any,  first  obtained.  If  the  locks  or  other 
fastenings,  or  any  of  them,  are  broken  or  removed  con- 
trary to  this  section,  or  if  any  merchandise  or  packages 
are  clandestinely  landed,  notice  thereof  shall  be  imme- 
diately given  by  the  inspector  to  the  collector  and  naval 
officer,  if  any,  of  the  port  where  the  vessel  may  be;  and 
the  master  of  such  vessel  shall,  for  each  and  every  of- 
fense, be  liable  to  a  penalty  of  five  hundred  dollars.^ 

§  841.  Master  of  any  vessel  who  intentionally  obstructs 
officer  lawfully  going  on  board  shall  be  punished.    If  any 

master  of  a  vessel  coming  into  or  having  arrived  at  any 
port  within  the  United  States  shall  obstruct  or  hinder, 
or  shall  intentionally  cause  any  obstruction  or  hindrance 
to  any  officer  in  lawfully  going  on  board  such  vessel,  for 
the  purpose  of  carrying  into  effect  any  of  the  revenue 
laws  of  the  United  States,  he  shall  for  every  such  offense 
be  liable  to  a  penalty  of  not  more  than  five  hundred  dol- 
lars nor  less  than  fifty  dollars.'^ 

1— E.  S.  3070,  Act  Mar.  2,  1799,     2— K.  S.  3068,  Act  Mar.  2,  1799, 
1  Stat.  668.  1  Stat.  678. 


746  Ceiminal  Law 

§  842.  Officers  collecting  imports  under  authority  of 
U.  S.  shall  own  vessel.  Punishment.  Xo  person  employed 
under  the  authority  of  the  United  States,  in  the  collec- 
tion of  duties  or  imports  or  tonnage,  shall  own,  either  in 
whole  or  in  part,  any  vessel,  or  act  as  agent,  attorney,  or 
consignee  for  the  owner  or  owners  of  any  vessel,  or  of 
any  cargo  or  lading  on  board  the  same;  nor  shall  any 
such  person  import,  or  be  concerned  directly  or  indirectly 
in  the  importation  of  any  merchandise  for  sale  into  the 
United  States.  Every  person  who  violates  this  section 
shall  be  liable  to  a  penalty  of  five  hundred  dollars.' 

§  843.  Entering"  goods  for  transportation  with  intent 
to  draw  back  the  duties  and  same  landed  in  U.  S.  un- 
lawful. Punishment.  If  any  mercliandise  entered  for 
exportation,  with  intent  to  draw  back  the  duties,  or  to 
obtain  any  allowance  given  by  law  on  the  exportation 
thereof,  shall  be  landed  within  any  port  w^ithin  the  limits 
of  the  United  States,  all  such  merchandise  shall  be  sub- 
ject to  seizure  and  forfeiture,  together  with  the  vessel 
from  which  such  merchandise  shall  be  landed,  and  the  ves- 
sels or  boats  used  in  landing  the  same;  and  all  persons 
concerned  therein  shall,  upon  indictment  and  conviction 
thereof,  sutTer  iiii])ri8oiiment  for  a  term  not  exceeding 
six  months.  For  discoveiy  of  frauds  and  seizure  of  mer- 
chandise rolanded  contrary  to  law,  the  several  officers 
established  by  tliis  title  shall  have  the  same  powers,  and, 
in  case  of  seizure,  the  same  proceedings  shall  be  had  as 
ill  tiio  case  of  merchandise  imported  contrary  to  law.* 

§  844.  Obliteration  of  any  marks  put  on  packages  by 
revenue  officer  penal.  Any  jxmsoii  convicted  of  nlloring, 
defacing,  or  ol)! iterating  any  niarlv  wliicli  has  been  placed 
by  any  oflicer  of  the  revenue  on  any  package  of  ware- 
s—Act Mar.  2,  1799,  R.  S.  2638,  4— J{.  S.  3049,  Act  Mar.  2,  1799, 
1  Stat.  69.J.                                                     1  Stat.  C92. 


Offenses  Relating  to  Customs  and  Duties      747 

housed  merchandise  shall  be  liable  to  a  penalty  of  five 
hundred  dollars  for  every  such  offense.^ 

§  845.  Importer  or  proprietor  of  warehoused  goods 
guilty  of  crime  of  warehouse  fraudulently  opened.  If 
any  importer  or  proprietor  of  any  warehoused  merchan- 
dise, or  any  person  in  his  employ,  shall,  by  any  con- 
trivance, fraudulently  open  the  warehouse,  or  shall  gain 
access  to  the  merchandise,  except  in  the  presence  of  the 
proper  officer  of  the  customs,  acting  in  the  execution  of 
his  duty,  such  importer  or  proprietor  shall  be  liable  to  a 
penalty  of  one  thousand  dollars  for  every  such  offense.^ 

§  846.  Fraudulently  concealing  goods  from  public  or 
private  warehouse  guilty  as  under  section  2986,  R.  S. 
If  any  warehoused  merchandise  shall  be  fraudulently 
concealed  in  or  removed  from  any  public  or  private  ware- 
house, the  same  shall  be  forfeited  to  the  United  States; 
and  all  persons  convicted  of  fraudulently  concealing  or 
removing  such  merchandise,  or  of  aiding  or  abetting 
such  concealment  or  removal,  shall  be  liable  to  the  same 
penalties  as  are  imposed  for  the  fraudulent  introduction 
of  merchandise  into  the  United  States.'' 

§  847.  It  is  a  felony  for  failure  of  owner  or  nmster  not 
to  proceed  to  port  of  destination.  If  the  owner,  master, 
or  person  in  charge  of  any  vessel,  car,  or  other  vehicle 
so  sealed,  shall  not  proceed  to  the  port  or  place  of  des- 
tination thereof  named  in  the  manifest  of  its  cargo, 
freight,  or  contents,  and  deliver  such  vessel,  car,  or  vehi- 
cle to  the  proper  officer  of  the  customs,  or  shall  dispose 
of  the  same  by  sale  or  otherwise,  or  shall  unload  the 
same,  or  any  part  thereof,  at  any  other  than  such  port 

5_Act  Aug.  6,  1846,  E.  S.  2985,  7— E.  S.  2987,  Act  Aug.  6,  1846, 

9  Stat.  55.  9  Stat.  55. 

6— E.  S.  2986,  Act  Aug.  6,  1846, 
9  Stat.  55. 


"748  Chimin AL  Law 

or  place,  or  shall  sell  or  dispose  of  the  contents  of  such 
vessel,  car,  or  other  vehicle,  or  any  part  thereof,  before 
such  deliveiy,  he  shall  be  deemed  guilty  of  felony,  and 
on  conviction  thereof,  before  any  court  of  competent 
jurisdiction,  pay  a  fine  not  exceeding  one  thousand  dol- 
lars, or  shall  be  imprisoned  for  a  term  not  exceeding  five 
years,  or  both,  at  the  discretion  of  the  court;  and  such 
vessel,  car,  or  other  vehicle,  with  its  contents,  shall  be 
forfeited  to  the  United  States,  and  may  be  seized  wher- 
ever found  within  the  United  States,  and  disposed  of 
and  sold  as  in  other  cases  of  forfeiture.  Nothing  in  this 
section,  however,  shall  be  construed  to  prevent  sales  of 
cargo,  in  whole  or  in  part,  prior  to  arrival,  to  be  deliv- 
ered as  per  manifest,  and  after  due  inspection.' 

§  848.  Fraudulently  and  knowingly  importing  goods 
that  is  contrary  to  law.  Punishment.  If  any  person  shall 
fraudulently  or  knowingly  import  or  bring  into  the 
United  States,  or  assist  in  so  doing,  any  merchandise, 
contrary  to  law,  or  shall  receive,  conceal,  buy,  sell,  or  in 
any  manner  facilitate  the  transportation,  concealment, 
or  sale  of  such  merchandise  after  importation,  knowing 
the  same  to  have  been  imported  contrary  to  law,  such 
nioi'chandiso  shall  be  forfeited  and  the  offondoi"  shall  be 
fined  in  any  sum  not  exceeding  five  thousand  dollars  nor 
less  than  fifty  dollars,  or  be  imprisoned  for  any  time  not 
exceeding  two  years,  or  both.  Whenever,  on  trial  for  a 
violation  of  this  section,  the  defendant  is  shown  to  have 
or  to  have  had  possession  of  such  goods,  such  possession 
sliali  be  deemed  evidence  sufiicient  to  aulliori/e  convic- 
tion, unless  the  defendant  shall  explain  the  ])ossession  to 
the  satisfaction  of  the  juiy.^ 

§  849.  Refusing  to  assist  officers  in  making  search  or 
seizure  misdemeanor.     rl\-erv  oflicei-  or  other  person  an 

8— H.  K.  :J104,  Act  .Furic  27,  IHC.},  d-R.  H.  :WH\1,  Act   .luly    IH,   1H(U), 

13  Stat.  197.  14  Stat.  179. 


Offenses  Relating  to  Customs  and  Duties       749 

thorized  to  make  searches  and  seizures  by  this  title, 
shall,  at  the  time  of  executing  any  of  the  powers  con- 
ferred upon  him,  make  known,  upon  being  questioned, 
his  character  as  an  officer  or  agent  of  the  customs  or  Gov- 
ernment, and  shall  have  authority  to  demand  of  any  per- 
son within  the  distance  of  three  miles  to  assist  him  in 
making  any  arrests,  search,  or  seizure  authorized  by  this 
title,  where  such  assistance  may  be  necessary;  and  if 
such  person  shall,  witliout  reasonable  excuse,  neglect  or 
refuse  so  to  assist,  upon  proper  demand,  he  shall  be 
deemed  guilty  of  a  misdemeanor,  punishable  by  a  fine  of 
not  more  than  two  hundred  dollars,  nor  less  then  five 
dollars." 

§  850.  Unlawful  for  any  officer  of  U.  S.  to  receive  any 
portion  of  informer's  compensation.  Penalty.  Except 
in  cases  of  smuggling  as  aforesaid,  it  shall  not  be  law- 
ful for  any  officer  of  the  United  States,  under  any  pre- 
tense whatever,  directly  or  indirectly,  to  receive,  accept, 
or  contract  for  any  portion  of  the  money  which  may, 
under  any  of  the  provisions  of  this  or  any  other  act, 
accrue  to  any  such  person  furnishing  information;  and 
any  such  officer  who  shall  so  receive,  accept,  or  contract 
for  any  portion  of  the  money  that  may  accrue  as  afore- 
said shall  be  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof,  shall  be  liable  to  a  fine  not  exceeding  five  thou- 
sand dollars,  or  imprisonment  for  not  more  than  one  year, 
or  both,  in  the  discretion  of  the  court,  and  shall  not  be 
thereafter  eligible  to  any  office  of  honor,  trust,  or  emolu- 
ment. And  any  such  person  so  furnishing  infonnation 
as  aforesaid,  who  shall  pay  to  any  such  officer  of  the 
United  States,  or  to  any  person  for  his  use,  directly  or 
indirectly,  any  portion  of  said  money,  or  any  other  valu- 
able thing,  on  account  of  or  because  of  such  money,  shall 

10— E.  S.  3071,  Act  July  18,  1866, 
14  Stat.  180. 


750  Criminal  Law 

have  a  right  of  action  against  such  officer  or  other  per- 
son, and  his  legal  representatives,  to  recover  back  the 
same,  or  the  value  thereof." 

§  851.  Officer  under  custom  laws  rebating  any  fine  or 
penalty  guilty  of  felony.  That  it  shall  not  be  lawful  for 
any  officer  or  officers  of  the  United  States  to  compromise 
or  abate  any  claim  of  the  United  States  arising  under 
the  customs  laws,  for  any  fine,  penalty,  or  forfeiture  in- 
curred by  a  violation  thereof;  and  any  officer  or  person 
who  shall  compromise  or  abate  any  such  claim,  or  at- 
tempt to  make  such  compromise  or  abatement,  or  in  any 
manner  relieve  or  attempt  to  relieve  from  such  fine,  pen- 
alty, or  forfeiture,  shall  be  deemed  guilty  of  a  felony, 
and,  on  conviction  thereof,  shall  suffer  imprisonment  not 
exceeding  ten  years,  and  be  fined  not  exceeding  ten  thou- 
sand dollars;  provided,  however,  that  the  Secretary  of 
the  Treasury  shall  have  power  to  remit  any  fines,  penal- 
ties, or  forfeitures,  or  to  compromise  the  same,  in  ac- 
cordance with  existing  law.^^ 

§  852.  Any  person  knowingly  and  willfully  with  intent 
to  defraud  U.  S.  smuggle  any  goods  into  U.  S.  under  Act 
Feb.  27,  1877.  Penalty.  If  any  person  shall  knowingly 
and  willfully,  with  intent  to  defraud  the  revenue  of  the 
United  States,  smuggle,  or  clandestinely  introduce,  into 
the  United  States,  any  goods,  wares,  or  merchandise,  sub- 
ject to  duty  by  law,  and  which  should  have  been  invoiced, 
without  jjaying  or  accounting  for  the  duty,  or  shall  make 
out  or  pass,  or  attemi)t  to  pass,  through  the  custom- 
house any  false,  forged,  <•!•  tVaiidulciit  invoice,  every  such 
person,  his,  her,  or  their  aiders,  and  abettors,  shall  be 
deemed  guilty  of  a  iiiisdomoanor,  and  on  conviction 
thereof  shall  be  lined  in  any  sum  not  exceeding  five  thou- 

11— Sec.    7,    Act    .Tunc    22,    1874,  12— Sec.    10,    Act  June   22,    1874, 

18   Stat.    187.  IH    Stat.    190. 


Offenses  Kelating  to  Customs  and  Duties      751 

sand  dollars,  or  imprisonment  for  any  term  not  exceed- 
ing two  years,  or  both,  at  the  discretion  of  the  court." 

§  853.  Unauthorized  person  breaking-,  etc.,  seal  car  or 
vessel  guilty  of  felony.  If  any  unauthorized  person  or 
persons  shall  willfully  break,  cut,  pick,  open,  or  remove 
any  wire,  seal,  lead,  lock,  or  other  fastening  or  mark 
attached  to  any  vessel,  car,  or  other  vehicle,  crate,  box, 
bag,  bale,  basket,  ban-el,  bundle,  cask,  trunk,  package, 
or  parcel,  or  anything  whatsoever,  under  and  by  virtue 
of  this  title  and  regulations  authorized  by  it,  or  any 
other  law,  or  shall  affix  or  attach,  or  any  way  willfully 
aid,  assist,  or  encourage  the  affixing  or  attaching,  by 
wire  or  otherwise,  to  any  vessel,  car,  or  other  vehicle, 
or  to  any  crate,  box,  bale,  barrel,  bag,  basket,  bundle, 
cask,  package,  parcel,  article,  or  thing  of  any  kind,  any 
seal,  lead,  metal,  or  anything  purporting  to  be  a  seal 
authorized  by  law,  such  person  or  persons  shall  be  deemed 
guilty  of  felony,  and  shall  be  imprisoned  for  a  term  not 
exceeding  five  years,  or  shall  pay  a  fine  of  not  exceed- 
ing one  thousand  dollars,  or  both,  at  the  discretion  of 
the  court. ^* 

§854.  A  vessel  must  discharge  the  cargo  in  daytime 
unless  licensed  to  do  otherwise.  Except  as  authorized 
by  Sec.  24  Act  June  26,  1884,  no  merchandise  brought  in 
any  vessel  from  any  foreign  port  shall  be  unladen  or  de- 
livered from  such  vessel  within  the  United  States  but  in 
open  day — that  is  to  say,  between  the  rising  and  the  set- 
ting of  the  sun — except  by  special  license  from  the  col- 
lector of  the  port,  and  naval  officer  of  the  same,  where 
there  is  one,  for  that  purpose,  nor  at  any  time  without  a 
permit  from  the  collector,  and  naval  officer,  if  any,  for 
such  unloading  or  delivery.^^ 

13— Act  Feb.   27,    1877,    19    Stat.  15— Sec.   25,   Act   June    26,    1884, 

247.  23   Stat.   59. 

14_Act  Feb.    27,   1877,    19    Stat. 
248. 


752  Criminal  Law 

§  855.  Unloading  vessel  in  violation  of  Sec.  25,  Act 
June  26,  1884.  Penalty.  If  any  merchandise  shall  be 
unladen  or  delivered  from  any  vessel,  contrary  to  this 
section,  the  master  of  such  vessel,  and  every  other  per- 
son who  shall  knowingly  be  concerned,  or  aiding  therein, 
or  in  removing,  storing,  or  othenvise  securing  such  mer- 
chandise, shall  each  be  liable  to  a  penalty  of  four  hun- 
dred dollars  for  each  offense,  and  shall  be  disabled  from 
holding  any  office  of  trust  or  profit  under  the  United 
States,  for  a  term  not  exceeding  seven  years;  and  the 
collector  of  the  district  shall  advertise  the  name  of  such 
person  in  a  newspaper  printed  in  the  state  in  which  he 
resides,  within  twenty  days  after  each  respective  con- 
viction.^^ 

§  856.  Under  Act,  Oct.  3,  1913,  protest  may  be  filed 
against  the  decision  of  the  collector  as  to  the  rate  of  cus- 
tom duties  as  to  contingent  fee  in  respect  to  recovery. 
Unlawful.  Punishment.  That  the  decision  of  the  collec- 
tor as  to  the  rate  and  amount  of  duties  chargeable  upon 
imported  merchandise,  or  upon  merchandise  on  which 
duty  shall  have  been  assessed,  including  all  dutiable 
costs  and  charges,  and  as  to  all  fees  and  exactions  of 
whatever  character  (except  duties  on  tonnage),  shall  be 
final  and  conclusive  against  all  persons  interested  there- 
in, unless  the  owner,  importer,  consignee,  or  agent  of 
such  iiici-cli;iii(IIsc,  oi-  the  jXTsoii  paying  such  fees, 
charges,  and  exactions  other  than  duties,  shall,  within 
thirty  days  aftei',  but  not  before,  sucli  ascertainment 
and  licpiidation  of  dntics,  as  well  in  cases  of  merclian- 
dise  entercfl  in  \)()]\{\  as  for  cousiuiiplit)!!.  <»r  witfiin  fifteen 
days  after  the  iKiynicnt  (»r  such  fees,  charges,  and  ex- 
actions, if  dissatisfied  witli  such  decision  imposing  a 
iiigliei-  i-ate  of  duty,  or  a  greater  charge,  fee,  or  exaction, 

16— Act   Mar.  2,   17!t!>,  1  Stat.  (Wr^ 


Offenses  Relating  to  Customs  and  Duties      753 

than  he  shall  claim  to  bo  legally  payable,  file  a  protest 
or  protests  in  writing  with  the  collector,  setting  forth 
therein  distinctly  and  specifically,  and  in  respect  to  each 
entry  or  payment,  the  reasons  for  his  objections  thereto, 
and  if  the  merchandise  is  entered  for  consumption  shall 
pay  the  full  amount  of  the  duties  and  charges  ascer- 
tained to  be  due  thereon.  Such  protest  shall  be  deemed 
to  be  finally  abandoned  and  waived  unless  within  thirty 
days  from  the  date  of  filing  thereof  the  person  who  filed 
such  notice  or  protest  shall  have  deposited  with  the  col- 
lector of  customs  a  fee  of  $1.00  with  respect  to  each  pro- 
test. Such  fee  shall  be  deposited  and  accounted  for  as 
miscellaneous  receipts,  and  in  case  the  protest  in  con- 
nection with  which  such  fee  was  deposited  shall  be  finally 
sustained  in  whole  or  in  part,  such  fee  shall  be  refunded 
to  the  importer,  with  the  duties  found  to  be  collected  in 
excess,  from  the  appropriation  for  the  refund  to  im- 
Ijorters  of  excess  of  deposits.  No  agreement  for  a  con- 
tingent fee  in  respect  to  recovery  or  refund  under  pro- 
test shall  be  lawful.  Compliance  with  this  provision 
shall  be  a  condition  precedent  to  the  validity  of  the  pro- 
test and  to  any  refund  thereunder,  and  a  violation  of  this 
provision  shall  be  punishable  by  a  fine  not  exceeding 
$500,  or  imprisonment  for  not  more  than  one  year,  or 
both. 

Upon  such  pajTiient  of  duties,  protest,  and  deposit  of 
protest  fee,  the  collector  shall  transmit  the  invoice  and 
all  the  papers  and  exhibits  connected  therewith  to  the 
board  or  nine  general  appraisers,  for  due  assignment  and 
determination  as  provided  by  law;  such  determination 
shall  be  final  and  conclusive  upon  all  persons  interested 
therein,  and  the  record  shall  be  transmitted  to  the  proper 
collector  or  person  acting  as  such,  who  shall  liquidate 
the  entry  accordingly,  except  in  cases  where  an  appeal 
shall  be  filed  in  the  United  States  Court  of  Customs  Ap- 

C.  L.— 48 


754  Criminal  Law 

peals  within  the  time  and  in  the  manner  provided  for  by 
law." 

§  857.  Under  Act,  Oct.  3,  1913,  the  general  appraisers 
of  merchandise  authorized  to  administer  oaths  to  wit- 
nesses. The  general  appraisers,  or  any  of  them  are  here- 
by authorized  to  administer  oaths,  and  said  general  ap- 
praisers, the  boards  of  general  appraisers,  the  local  ap- 
praisers, or  the  collectors,  as  the  case  may  be,  may  cite 
to  appear  before  them,  and  examine  upon  oath  any 
owner,  importer,  agent,  consignee,  or  other  person  touch- 
ing any  matter  or  thing  wliich  they,  or  either  of  them, 
may  deem  material  respecting  any  imported  merchandise 
then  under  consideration  or  previously  imjported  within 
one  year,  in  ascertaining  the  classification  or  dutiable 
value  thereof  or  the  rate  or  amount  of  duty;  and  they, 
or  either  of  them,  may  require  the  production  of  any  let- 
ters, accounts,  contracts,  or  invoices  relating  to  said  mer- 
chandise, and  may  require  such  testimony  to  be  reduced 
to  writing,  and  when  so  taken  it  shall  be  filed  and  pre- 
served for  use  or  reference  until  the  final  decision  of  the 
collector,  appraiser,  or  said  board  of  appraisers  shall  be 
made  respecting  the  valuation  or  classification  of  said 
merchandise,  as  the  case  may  be;  and  such  evidence  shall 
be  given  consideration  in  all  subsequent  proceedings  re- 
lating to  such  merchandise." 

§  858.  Willfully  and  corruptly  swearing  falsely  by  any 
person  in  examination  before  general  appraiser  of  mer- 
chandise. If  any  person  so  cited  to  appear  shall  neglect 
or  refuse  to  attend,  or  shall  decline  to  answer,  or  shall 
refuse  to  answer  in  writing  any  interrogatories,  and  sub- 
scribe his  name  to  his  deposition,  or  to  produce  such 
papers  when  so  required  by  a  general  appraiser,  or  a 
]K);ird  of  uciicral  ;i])prnisors,  or  a  local  appraiser,  or  a 

17— Act    Oct.    3,    1913,    38    Stat.  18—38  Stat.   188. 

187. 


Offenses  Relating  to  Customs  and  Duties      755 

collector,  he  shall  be  liable  to  a  penalty  of  not  less  than 
$20  nor  more  than  $500;  and  if  such  person  be  the  owner, 
importer,  or  consignee,  the  appraisement  which  the  board 
of  general  appraisers  or  local  appraiser,  or  collector 
where  there  is  no  appraiser,  may  make  of  the  merchan- 
dise shall  be  final  and  conclusive;  and  any  person  who 
shall  willfully  and  corruptly  swear  falsely  on  an  exam- 
ination before  any  general  appraiser,  or  board  of  gen- 
eral appraisers,  or  local  appraiser  or  collector,  shall  be 
deemed  guilty  of  perjury;  and  if  he  is  the  owner,  im- 
porter, or  consignee,  the  merchandise  shall  be  forfeited, 
or  the  value  thereof  may  be  recovered  from  him.^^ 

§  859.  Giving-  or  offering  to  give  a  bribe  to  employee 
of  the  U.  S.  Act,  Oct.  3,  1913.  Punishment.  Any  person, 
who  shall  give,  or  offer  to  give,  or  promise  to  give,  any 
money  or  thing  of  value,  directly  or  indirectly,  to  any 
officer  or  employee  of  the  United  States  in  consideration 
of  or  for  any  act  or  omission  contrary  to  law  in  connec- 
tion with  or  pertaining  to  the  importation,  appraisement, 
entry,  examination,  or  inspection  of  goods,  wares,  or  mer- 
chandise, including  herein  any  baggage  or  of  the  liquida- 
tion of  the  entry  thereof,  or  shall  by  threats  or  demands 
or  promises  of  any  character  attempt  to  improperly  in- 
fluence or  control  any  such  officer  or  employee  of  the 
United  States  as  to  the  performance  of  his  official  duties 
shall,  on  conviction  thereof,  be  fined  not  exceeding  $2,000, 
or  be  imprisoned  at  hard  labor  not  more  than  one  year, 
or  both,  in  the  discretion  of  the  court;  and  evidence  of 
such  giving,  or  offering,  or  promising  to  give,  satisfac- 
tory to  the  court  in  which  such  trial  is  had,  shall  be  re- 
garded as  prima  facie  evidence  that  such  giving  or  offer- 
ing or  promising  was  contrary  to  law,  and  shall  put  upon 
the  accused  the  burden  of  proving  that  such  act  was  in- 
nocent and  not  done  with  an  unlawful  intention.^" 

19— Act    Oct.    3,    1913,    38    Stat.  20— Act  Oct.  3,  1913,  38  Stat.  191. 

188. 


756  Criminal  Law 

§  860.  Any  officer  or  employee  accepting  bribe  under 
Act  Oct.  3,  1913.  Punishment.  Any  officer  or  employee 
of  the  United  States  who  shall,  excepting  for  lawful 
duties  or  fees,  solicit,  demand,  exact,  or  receive  from  any 
person,  directly  or  indirectly,  any  money  or  thing  of 
value  in  connection  with  or  pertaining  to  the  importa- 
tion, appraisement,  entiy,  examination,  or  inspection  of 
goods,  wares,  or  merchandise,  including  herein  any  bag- 
gage or  liquidation  of  the  entry  thereof,  on  conviction 
thereof  shall  be  fined  not  exceeding  $5,000,  or  be  impris- 
oned at  hard  labor  not  more  than  two  years,  or  both,  in 
the  discretion  of  the  court;  and  evidence  of  such  solicit- 
ing, demanding,  exacting,  or  receiving,  satisfactory  to 
the  court  in  which  such  trial  is  had,  shall  be  regarded 
as  prima  facie  evidence  that  such  soliciting,  demanding, 
exacting,  or  receiving  was  contrary  to  law,  and  shall  put 
upon  the  accused  the  burden  of  proving  that  such  act 
was  innocent  and  not  with  an  unlawful  intention.^^ 

21— Act  Oct.  3,  1913,  38  Stat.  192. 


CHAPTER  LVIII 

OFFENSES  EELATING  TO  OFFICIAL  DUTIES 


CHAPTEE  FIVE 

Penal  Code  Act,  March  4,  1909 


§  862.  Officer,    etc.,    of    the    United 

States  guilty  of  extortion. 

§  863.  Eeceipting    for    larger    sums 

than  are  paid. 

§  864.  Disbursing   officer   unlawfully 

converting,       etc.,       public 

money. 

§  865.  Failure  of  treasurer,  etc.,  to 

safely   keep   public   money. 

§  866.  Custodian    of    public    money 

failing  to  safely  keep,  etc. 

§  867.  Failure    of    officer    to    render 

accounts,  etc. 
§  868.  Failure     to     deposit     as     re- 
quired. 
§  869.  Provisions    of    the    five    pre- 
ceding   sections,    to    whom 
applicable. 
§  870.  Eecord  evidence  of  embezzle- 
ment. 
§  871.  Prima   facie   evidence. 
§  872.  Evidence    of    conversion. 
§  873.  Banker,     etc.,     receiving     de- 
posit  from   disbursing   offi- 
cer. 
§  874.  Embezzlement     by     internal- 
revenue  officer,  etc. 
§  875.  Officer      contracting     beyond 

specific   appropriation. 
§  876.  Officer  of  United  States  court 
failing  to   deposit   moneys, 
etc. 
§  877.  Eeceiving     loan     or     deposit 

from  officer  of  court. 
§  878.  Failure    to    make    returns    or 
reports. 


§  879. 


;880. 


§  881. 


§882. 

§883. 
§884. 

§885. 
§886. 


§887. 


§  889. 


890, 


§891 


§  892 


Aiding  in  trading  in  obscene 
literature. 

Collecting  and  disbursing  of- 
ficers forbidden  to  trade  in 
public  property. 

Certain  officers  forbidden  to 
purchase,  etc.,  witness,  etc., 
fees. 

Falsely  certifying,  etc.,  as  to 
record  of  deeds,  etc. 

Other  false  certificates. 

Inspector  of  steamboats  re- 
ceiving illegal   fees. 

Pension  agent  taking  fee,  etc. 

Officer  not  to  be  interested  in 
claims  against  the  United 
States. 

Member  of  Congress,  etc., 
soliciting  or  accepting 
bribe,  etc. 

Offering,  etc.,  Member  of 
Congress  bribe,  etc. 

Member  of  Congress  taking 
consideration  for  procuring 
contract,  office,  etc.;  offer- 
ing Member  consideration, 
etc. 

Member  of  Congress,  etc., 
taking  compensation  in 
matters  to  which  United 
States  is  a  party. 
,  Member  of  Congress  not  to 
be  interested  in  contract. 
Officer  making  contracts 
with   Member  of  Congress. 


757 


758 

Chimin. 

Mj  Law 

§893. 

Contracts  to  which  two  pre- 

political   purposes    prohib- 

ceding sections  do  not  ap- 

ited. 

piy- 

§899. 

Penalty     for     violating     pro- 

§894. 

United   States   officer   accept- 

visions   of    four   preceding 

ing  bribe. 

sections. 

§895. 

Political  contributions  not  to 

§900. 

Governmental      officer,      etc., 

be  solicited  by  certain  of- 

giving   out   advance    infor- 

ficers. 

mation  respecting  crop  re- 

§896. 

Political  contributions  not  to 

ports. 

be  received  in  public  offices. 

§901. 

Government    officer,    etc., 

§897. 

Immunity    from    official    pro- 

knowingly compiling  or  is- 

scription. 

suing    false    statistics    re- 

§898. 

Giving  money  to  officials  for 

specting  crops. 

§  862.  Officer,  etc.,  of  the  United  States  guilty  of  extor- 
tion. Sec.  85.  Eveiy  officer,  clerk,  agent,  or  employee 
of  the  United  States,  and  every  person  representing  him- 
self to  be  or  assuming  to  act  as  such  officer,  clerk,  agent, 
or  employee,  who,  under  color  of  his  office,  clerkship, 
agency,  or  employment,  or  under  color  of  his  pretended 
or  assumed  office,  clerkship,  agency,  or  employment,  is 
guilty  of  extortion,  and  every  person  who  shall  attempt 
any  act  which  if  perfonned  would  make  him  guilty  of 
extortion,  shall  be  fined  not  more  tlian  five  hundred  dol- 
lars, or  imprisoned  not  more  than  one  year,  or  both. 

§  863.  Receipting  for  larger  sums  than  are  paid.  Sec. 
86.  Whoever,  being  an  officer,  clerk,  agent,  employee, 
or  otlier  person  charged  with  tlie  payment  of  any  appro- 
priation made  by  Congress,  shall  pay  to  any  clerk  or 
other  employee  of  the  United  States  a  sum  less  than  that 
provided  by  law,  and  require  such  employee  to  receipt  or 
give  a  voucher  for  an  amount  greater  tlian  tliat  actually 
paid  to,  and  received  by  him,  is  guilty  of  embezzlement, 
and  sliall  be  lined  in  double  tlic  amount  so  withheld  from 
any  empk)yce  of  tlio  Oovcrnmenl  nnd  imprisoned  not 
moro  i]i;in  two  years. 

{^  864.  Disbursing  officer  unlawfully  converting,  etc., 
public  money.  Sec  S7.  WIiocn  ci-,  Itcing  a  (lisl)ursing  of- 
licci-  of  llic  I  iiitcd  St;ilcs,  or  ;i  pci'son  acting  as  such,  shall 


Offenses  to  Official  Duties  759 

in  any  manner  convert  to  his  own  use,  or  loan  with  or 
without  interest,  or  deposit  in  any  place  or  in  any  man- 
ner, except  as  authorized  by  law,  any  public  money  in- 
trusted to  him;  or  shall,  for  any  purpose  not  prescribed 
by  law,  withdraw  from  the  treasurer  or  any  assistant 
treasurer,  or  any  authorized  depositary  or  transfer,  or 
apply,  any  portion  of  the  public  money  intrusted  to  him, 
shall  be  deemed  guilty  of  an  embezzlement  of  the  money 
so  converted,  loaned,  deposited,  withdrawn,  transferred, 
or  applied,  and  shall  be  fined  not  more  than  the  amount 
embezzled,  or  imprisoned  not  more  than  ten  years,  or 
both. 

§  865.  Failure  of  treasurer,  etc.,  to  safely  keep  public 
money.  Sec.  88.  If  the  Treasurer  of  the  United  States 
or  any  assistant  treasurer,  or  any  public  depositary,  fails 
safely  to  keep  all  moneys  deposited  by  any  disbursing 
officer  or  distributing  agent  as  well  as  all  moneys  de- 
posited by  any  receiver,  collector,  or  other  person  having 
money  of  the  United  States,  he  shall  be  deemed  guilty 
of  embezzlement  of  the  moneys  not  so  safely  kept,  and 
shall  be  fined  in  a  sum  equal  to  the  amount  of  money  so 
embezzled  and  imprisoned  not  more  than  ten  years. 

§  866.  Custodian  of  public  money  failing  to  safely 
keep,  etc.  Sec.  89.  Every  officer  or  other  person  charged 
by  an  Act  of  Congress  with  the  safe-keeping  of  the  pub- 
lic moneys,  who  shall  loan,  use,  or  convert  to  his  own 
use,  or  shall  deposit  in  any  bank  or  exchange  for  other 
funds,  except  as  specially  allowed  by  law,  any  portion  of 
the  public  moneys  intrusted  to  him  for  safe-keeping, 
shall  be  guilty  of  embezzlement  of  the  money  so  loaned, 
used,  converted,  deposited,  or  exchanged,  and  shall  be 
fined  in  a  sum  equal  to  the  amount  of  money  so  embez- 
zled and  imprisoned  not  more  than  ten  years. 

§  867.  Failure  of  officer  to  render  accounts,  etc.  Sec. 
90.    Every  officer  or  agent  of  the  United  States  who,  hav- 


760  Crimixal  Law 

ing  received  public  money  which  he  is  not  authorized 
to  retain  as  salary,  pay,  or  emolument,  tails  to  render 
his  accounts  for  the  same  as  provided  by  law  shall  be 
deemed  guilty  of  embezzlejnent,  and  shall  be  fined  in  a 
sum  equal  to  the  amount  of  the  money  embezzled  and 
imprisoned  not  more  than  ten  years. 

§  868.  Failure  to  deposit  as  required.  Sec.  91.  Who- 
ever, having  money  of  the  United  States  in  his  posses- 
sion or  under  his  control,  shall  fail  to  deposit  it  with  the 
treasurer,  or  some  assistant  treasurer,  or  some  public  de- 
positary of  the  United  States,  when  required  so  to  do  by 
the  Secretaiy  of  the  Treasury,  or  the  head  of  any  other 
proper  department,  or  by  the  accounting  officers  of  the 
treasury,  shall  be  deemed  guilty  of  embezzlement  thereof, 
and  shall  be  fined  in  a  sum  equal  to  the  amount  of  money 
embezzled  and  imprisoned  not  more  than  ten  years. 

§  869.  Provisions  of  the  five  preceding-  sections,  to 
whom  applicable.  Sec.  92.  The  provisions  of  the  preced- 
ing sections  shall  be  construed  to  apply  to  all  persons 
charged  with  the  safekeeping,  transfer,  or  disbursement 
of  the  public  money,  whether  such  persons  be  indicted 
as  receivers  or  depositaries  of  the  same. 

§  870.  Record  evidence  of  embezzlement.  Sec.  93. 
Upon  the  trial  of  any  indictment  against  any  person  for 
embezzling  public  money  under  any  provision  of  the  six 
preceding  sections  [858,*  859,  860,  861,  862,  863],  it  shall 
be  sufficient  evidence,  prima  facie,  for  the  purpose  of 
showing  a  balance  against  such  person,  to  produce  a 
lijiiiscripl  iVoiii  llic  l)()()ks  niid  ])roceedings  of  the  treas- 
ury, as  r('(|nii-('(l  in  civil  cases,  under  tlie  provisions  for 
the  settlement  <>t'  Mcconnts  between  the  United  States 
and  receivers  ol'  puhlic  money. 


Offenses  to  Official  Duties  761 

§  871.  Prima  facie  evidence.  Sec.  94.  The  refusal  of 
any  person,  whether  in  or  out  of  office,  charged  with  the 
safe-keeping,  transfer,  or  disbursement  of  the  public 
money  to  pay  any  draft,  order,  or  warrant,  drawn  upon 
him  by  the  proper  accounting  officer  of  the  Treasury,  for 
any  public  money  in  his  hands  belonging  to  the  United 
States,  no  matter  in  what  capacity  the  same  may  have 
been  received,  or  may  be  held,  or  to  transfer  or  disburse 
any  such  money,  promptly,  upon  the  legal  requirement 
of  any  authorized  officer,  shall  be  deemed,  upon  the  trial 
of  any  indictment  against  such  person  for  embezzlement 
prima  facie  evidence  of  such  embezzlement. 

§  872.  Evidence  of  conversion.  Sec.  95.  If  any  officer 
charged  with  the  disbursement  of  the  public  moneys  ac- 
cepts, receives,  or  transmits  to  the  Treasury  Department 
to  be  allowed  in  his  favor  any  receipt  or  voucher  from  a 
creditor  of  the  United  States  without  having  paid  to 
such  creditor  in  such  funds  as  the  officer  received  for 
disbursement,  or  in  such  funds  as  he  may  be  authorized 
by  law  to  take  in  exchange,  the  full  amount  specified  in 
such  receipt  or  voucher,  every  such  act  is  an  act  of  con- 
version by  such  officer  to  his  own  use  of  the  amount  speci- 
fied in  such  receipt  or  voucher. 

§  873.  Banker,  etc.,  receiving-  deposit  from  disbursing 
officer.  Sec.  96.  Every  banker,  broker,  or  other  person 
not  an  authorized  depositary  of  public  moneys,  who  shall 
knowingly  receive  from  any  disbursing  officer,  or  col- 
lector of  internal  revenue,  or  other  agent  of  the  United 
States,  any  public  money  on  deposit,  or  by  way  of  loan 
or  accommodation,  with  or  without  interest,  or  other- 
wise than  in  payment  of  a  debt  against  the  United  States, 
or  shall  use,  transfer,  convert,  appropriate,  or  apply  any 
portion  of  the  public  money  for  any  purpose  not  pre- 
scribed by  law ;  and  every  president,  cashier,  teller,  direc- 
tor, or  other  officer  of  any  bank  or  banking  association 


762  Ckiminal  Law 

who  shall  violate  any  provision  of  this  section  is  guilty 
of  embezzlement  of  the  public  money  so  deposited, 
loaned,  transferred,  used,  converted,  appropriated,  or  ap- 
plied, and  shall  be  fined  not  more  than  the  amount  em- 
bezzled, or  imprisoned  not  more  than  ten  years,  or  both. 

§  874.  Embezzlement  by  internal  revenue  officer,  etc. 
Sec.  97.  Any  officer  connected  with,  or  employed  in,  the 
Internal-Eevenue  Service  of  the  United  States,  and  any 
assistant  of  such  officer,  who  shall  embezzle  or  wrong- 
fully convert  to  his  own  use  any  money  or  other  prop- 
erty of  the  United  States,  and  any  officer  of  the  United 
States,  or  any  assistant  of  such  officer,  who  shall  embezzle 
or  wrongfully  convert  to  his  own  use  any  money  or  prop- 
erty which  may  have  come  into  his  possession  or  under 
his  control  in  the  execution  of  such  office  or  emplojnnent, 
or  under  color  or  claim  of  authority  as  such  officer  or 
assistant,  whether  the  same  shall  be  the  money  or  prop- 
erty of  the  United  States  or  of  some  other  person  or 
party,  shall,  where  the  offense  is  not  othcr^vise  punish- 
able by  some  statute  of  the  United  States,  be  fined  not 
more  than  the  value  of  the  money  and  property  thus  em- 
bezzled or  converted,  or  imprisoned  not  more  than  ten 
years,  or  both. 

§  875.  Officer  contracting  beyond  specific  appropria- 
tion. Sec.  98.  Whoever,  being  an  officer  of  the  United 
States,  shall  knowingly  contract  for  the  erection,  repair, 
()!•  furnishing  of  any  public  l)uihling,  or  for  any  public 
improvement,  to  pay  a  larger  amount  than  the  specific 
sum  appropriated  for  such  pur})oso,  sliall  be  fined  not 
moixi  than  two  thousand  dollars  and  imprisoned  not  more 
than  two  years. 

§  876.  Officer  of  United  States  court  failing  to  deposit 
moneys,  etc.  Sec.  !)!i.  W  iioevcr,  being  a  clerk  oi'  other 
oflieer  of  a  eonrt  of  the  United  States,  sliall   fail  forth- 


Offenses  to  Official  Duties  763 

with  to  deposit  any  money  belonging  in  the  registry  of 
the  court,  or  hereafter  paid  into  court  or  received  by  the 
ofticers  thereof,  with  the  treasurer,  assistant  treasurer, 
or  a  designated  depositary  of  the  United  States,  in  the 
name  and  to  the  credit  of  such  court,  or  shall  retain  or 
convert  to  his  own  use  or  to  the  use  of  another  any  such 
money,  is  guilty  of  embezzlement,  and  shall  be  fined  not 
more  than  the  amount  embezzled,  or  imprisoned  not  more 
than  ten  years,  or  both ;  but  nothing  herein  shall  be  held 
to  prevent  the  delivery  of  any  such  money  upon  security, 
according  to  agTeement  of  parties,  under  the  direction 
of  the  court. 

§  877.  Receiving  loan  or  deposit  from  officer  of  court. 

Sec.  100.  Whoever  shall  knowingly  receive,  from  a  clerk 
or  other  officer  of  a  court  of  the  United  States,  as  a  de- 
posit, loan,  or  otherwise,  any  money  belonging  in  the 
registry  of  such  court,  is  guilty  of  embezzlement,  and 
shall  be  punished  as  prescribed  in  the  preceding  section. 

§  878.  Failure  to  make  returns  or  reports.  Sec.  101. 
Every  officer  Avho  neglects  or  refuses  to  make  any  re- 
turn or  report  which  he  is  required  to  make  at  stated 
times  by  any  Act  of  Congress  or  regulation  of  the  De- 
partment of  the.Treasuiy,  other  than  his  accounts,  with- 
in the  time  prescribed  by  such  Act,  or  regulation,  shall 
be  fined  not  more  than  one  thousand  dollars. 

§  879.  Aiding  in  trading  in  obscene  literature.  Sec. 
102.  Whoever,  being  an  officer,  agent,  or  employee  of 
the  Government  of  the  United  States,  shall  knowingly 
aid  or  abet  any  person  engaged  in  violating  any  provi- 
sion of  law  prohibiting  importing,  advertising,  dealing 
in,  exhibiting,  or  sending  or  receiving  by  mail,  obscene 
or  indecent  publications,  or  representations,  or  means  for 
preventing  conception  or  producing  abortion,  or  other 
article  of  indecent  or  immoral  use,  or  tendency,  shall  be 


764  Criminal  Law 

fined  not  more  than  five  thousand  dollars,  or  unprisoned 
not  more  than  ten  years,  or  both. 

§  880.  Collecting  and  disbursing  officers  forbidden  to 
trade  in  public  property.  Sec.  103.  Whoever,  being  an 
officer  of  the  United  States  concerned  in  the  collection 
or  the  disbursement  of  the  revenues  thereof,  shall  carry 
on  anj^  trade  or  business  in  the  funds  or  debts  of  the 
United  States,  or  of  any  State,  or  in  any  public  property 
of  either,  shall  be  fined  not  more  than  three  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both, 
and  be  removed  from  office,  and  thereafter  be  incapable 
of  holding  any  office  under  the  United  States. 

§  881.  Certain  officers  forbidden  to  purchase,  etc.,  wit- 
ness, etc.,  fees.  Sec.  104.  Whoever,  being  a  judge,  clerk, 
or  deputy  clerk  of  any  court  of  the  United  States,  or  of 
any  territoiy  thereof,  or  a  United  States  district  attor- 
ney, assisting  attorney,  marshal,  deputy  marshal,  com- 
missioner, or  other  person  holding  any  office  or  employ- 
ment, or  position  of  trust  or  profit  under  the  Govern- 
ment of  the  United  States,  shall,  either  directly  or  in- 
directly, purchase  at  less  than  the  full  face  value  thereof, 
any  claim  against  the  United  States  for  the  fee,  mileage, 
or  expenses  of  any  witness,  juror,  deputy  marshal,  or 
any  other  officer  of  the  court  whatsoever,  shall  be  fined 
not  more  than  one  thousand  dollars. 

§  882.  Falsely  certifying,  etc.,  as  to  record  of  deeds, 
etc.  Sec.  105.  Whoever,  being  an  officer  or  other  person 
;iu1li(ii-i/c(l  l)y  ;my  law  of  the  United  States  to  record  a 
conveyance  of  I'cal  property  or  any  otlicr  instrument 
which  ])y  such  law  may  l)e  recorded,  sliall  knowingly 
certify  falsely  tlinl  such  conveyance  or  instrument  has 
or  lias  not  been  recorded,  shall  be  fined  not  more  than 
one  thousand  dollars,  or  imprisoned  not  more  than  seven 
years,  or  both. 


Offenses  to  Official  Duties  765 

§  883.  Other  false  certificates.  Sec.  106.  Whoever, 
being  a  public  officer  or  other  person  authorized  by  any 
law  of  the  United  States  to  make  or  give  a  certificate  or 
other  writing,  shall  knowingly  make  and  deliver  as  true 
such  a  certificate  or  writing,  containing  any  statement 
which  he  knows  to  be  false,  in  a  case  where  the  punish- 
ment thereof  is  not  elsewhere  expressly  provided  by  law, 
shall  be  fined  not  more  than  five  hundred  dollars,  or  im- 
prisoned not  more  than  one  year,  or  both. 

§  884.  Inspector  of  steamboats  receiving  illegal  fees. 
Sec.  107.  Every  inspector  of  steamboats  who,  upon  any 
pretense,  receives  any  fee  or  reward  for  his  services,  ex- 
cept what  is  allowed  to  him  by  law,  shall  forfeit  his  of- 
fice, and  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  six  months,  or  both. 

§  885.  Pension  agent  taking  fee,  etc.  Sec.  108.  Eveiy 
pension  agent,  or  other  person  employed  or  appointed  by 
him,  who  takes,  receives,  or  demands  any  fee  or  reward 
from  any  pensioner  for  any  service  in  connection  with 
the  payment  of  his  pension,  shall  be  fined  not  more  than 
five  hundred  dollars. 

§  886.  Officer  not  to  be  interested  in  claims  against  the 
United  States.  Sec.  109.  Whoever,  being  an  officer  of 
the  United  States,  or  a  person  holding  any  place  of  trust 
or  profit,  or  discharging  any  official  function  under,  or 
in  connection  with,  any  Executive  Department  of  the 
Government  of  the  United  States,  or  under  the  Senate 
or  House  of  Representatives  of  the  United  States,  shall 
act  as  an  agent  or  attorney  for  prosecuting  any  claim 
against  the  United  States,  or  in  any  manner,  or  by  any 
means,  othei^wise  than  in  discharge  of  his  proper  official 
duties,  shall  aid  or  assist  in  the  prosecution  or  support 
of  any  such  claim,  or  receive  any  gratuity,  or  any  share 
of  or  interest  in  any  claim  from  any  claimant  against 


766  Cbiminal.  Law 

the  United  States,  with  intent  to  aid  or  assist,  or  in  con- 
sideration of  having  aided  or  assisted,  in  the  prosecution 
of  such  claim,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both. 

§  887.  Member  of  Confess  taking  consideration  for 
procuring  contract,  office,  etc. ;  offering  member  consider- 
ation, etc.  Sec.  110.  Whoever,  being  elected  or  ap- 
pointed a  member  of  or  Delegate  to  CongTess,  or  a  resi- 
dent Commissioner,  shall  after  his  election  or  appoint- 
ment and  either  before  or  after  he  has  qualified,  and  dur- 
ing his  continuance  in  office,  directly  or  indirectly,  ask, 
accept,  receive,  or  agree  to  receive  any  money,  property, 
or  other  valuable  consideration,  or  any  promise,  con- 
tract, undertaking,  obligation,  gratuity,  or  security  for 
the  payment  of  money  or  for  the  delivery  or  conveyance 
of  anything  of  value  to  him  or  to  any  person  with  his 
consent,  connivance,  or  concurrence,  for  his  attention  to, 
or  services,  or  with  the  intent  to  have  his  action,  vote, 
or  decision  influenced,  on  any  question,  matter,  cause,  or 
proceeding,  which  may  at  any  time  be  pending  in  either 
House  of  Congress  or  before  any  committee  thereof,  or 
which  by  law  or  under  the  Constitution  may  be  brought 
before  him  in  his  official  capacity,  or  in  his  place  as  such 
Member,  Delegate,  or  Resident  Commissioner,  shall  be 
fined  not  more  than  tliree  times  the  amount  asked,  ac- 
cepted, or  received,  and  imprisoned  not  more  than  three 
years;  and  sliall,  moreover,  forfeit  his  office  or  place,  and 
thereafter  be  forever  disqualified  from  holding  any  office 
of  honor,  trust,  or  profit  under  the  Goverimient  of  the 
United  States. 

§  888.  Offering,  etc.,  member  of  Congress  bribe,  etc. 
Sec.  111.  Whoever  shall  promise,  offer,  or  give,  or  cause 
to  he  |ii()iiiis<'(l,  offeivd,  or  given,  any  money  or  other 
tiling  ol'  valno,  or  shnll  make  or  tender  any  contract, 
nndcrtaking,   obligation,   gratuity,   or   security   for  the 


Offenses  to  Official  Duties  767 

payment  of  money  or  for  the  delivery  or  conveyance  of 
anything  of  value,  to  any  member  of  either  House  of 
Congress,  or  Delegate  to  Congress,  or  Resident  Commis- 
sioner, after  his  election  or  appointment  and  either  be- 
fore or  after  he  has  qualified,  and  during  his  continuance 
in  office,  or  to  any  person  with  his  consent,  connivance, 
or  concurrence,  with  intent  to  influence  his  action,  vote, 
or  decision,  on  any  question,  matter,  cause,  or  proceed- 
ing which  may  at  any  time  be  pending  in  either  House 
of  Congress,  or  before  any  committee  thereof,  or  which 
by  law  or  under  the  Constitution  may  be  brought  before 
him  in  his  official  capacity  or  in  his  place  as  such  Mem- 
ber, Delegate,  or  Resident  Commissioner,  shall  be  fined 
not  more  than  three  times  the  amount  of  money  or  value 
of  the  thing  so  promised,  offered,  given,  made,  or  ten- 
dered, and  imprisoned  not  more  than  three  years. 

§889.  Member  of  Congress  taking  consideration  for 
procuring  contract,  office,  etc.;  offering  member  consid- 
eration, etc.     Sec.  112.     Whoever,  being  elected  or  ap- 
pointed a  Member  of  or  Delegate  to  Congress,  or  a  Resi- 
dent Commissioner,  shall,  after  his  election  or  appoint- 
ment and  either  before  or  after  he  has  qualified,  and  dur- 
ing his  continuance  in  office,  or  being  an  officer  or  agent 
of  the  United  States,  shall  directly  or  indirectly  take, 
receive,  or  agree  to  receive,  from  any  person,  any  money, 
property,  or  other  valuable  consideration  whatever,  for 
procuring,  or  aiding  to  procure,  any  contract,  appointive 
office,  or  place  from  the  United  States  or  from  any  offi- 
cer or  department  thereof,  for  any  person  whatever,  or 
for  giving  any  such  contract,  appointive  office,  or  place 
to  any  person  whomsoever;  or  whoever,  directly  or  in- 
directly, shall  offer,  or  agTce  to  give,  or  shall  give,  or 
bestow,  any  money,  property,  or  other  valuable  considera- 
tion whatever,  for  the  procuring,  or  aiding  to  procure, 
any  such  contract,  appointive  office,  or  place,  shall  be 
fined  not  more  than  ten  thousand  dollars  and  imprisoned 


768  Criminal  Law 

not  more  than  two  years;  and  shall,  moreover,  be  dis- 
qualified from  holding-  any  office  of  honor,  profit,  or  trust 
under  the  Government  of  the  United  States.  Any  such 
contract  or  agreement  may,  at  the  option  of  the  Presi- 
dent, be  declared  void. 

§  890.  Member  of  CongTess,  etc.,  taking  compensation 
in  matters  to  which  United  States  is  a  party.  Sec.  113. 
AVhoever,  being  elected  or  appointed  a  Senator,  Mem- 
ber of,  or  Delegate  to  Congress,  or  a  Resident  Commis- 
sioner, shall,  after  his  election  or  appointment  and  either 
before  or  after  he  has  qualified,  and  during  his  contin- 
uance in  office,  or  being  the  head  of  a  department,  or 
other  officer  or  clerk  in  the  employ  of  the  United  States, 
shall,  directly  or  indirectly,  receive,  or  agree  to  receive, 
any  compensation  whatever  for  any  services  rendered  or 
to  be  rendered  to  any  person,  either  by  himself  or  an- 
other, in  relation  to  any  proceeding,  contract,  claim,  con- 
troversy, charge,  accusation,  arrest,  or  other  matter  or 
tiling  in  which  the  United  States  is  a  party  or  directly 
or  indirectly  interested,  before  any  department,  court- 
martial,  bureau,  officer,  or  any  civil,  military,  or  naval 
commission  whatever,  shall  be  fined  not  more  than  ten 
thousand  dollars  and  impi-isoned  not  more  than  two 
years;  and  shall,  moreover,  thereafter  be  incapable  of 
holding  any  office  of  honor,  trust,  or  profit  under  the  Gov- 
erunioiii  of  ilic  United  States. 

§  891.  Member  of  Congress  not  to  be  interested  in  con- 
tract. Sec.  114.  W'liocvci',  l)eiiig  oloct(Hl  or  appointed  a 
M('in])oi'  of  or  Deh'gate  to  Congress,  or  a  Resident  Com- 
missioner, shall,  after  liis  election  or  appointment  and 
either  before  or  aftei-  lie  lias  (lunlified,  and  during  his 
conf iim.-nicc  in  oflicc.  (lii-cclly  oi'  indii'cclly,  liinisclf,  or 
by  any  oilier  pei'son  in  Irnsi  for  liini,  or  for  his  use  or 
IxMicfil,  on  jiis  acconnl,  nndcrlako,  execute,  liold,  or  en- 
Joy,  in  whole  or  in  part,  ;iny  contract  or  agreement,  made 


Offenses  to  Official  Duties  .  769 

or  entered  into  in  behalf  of  the  United  States  by  any  of- 
ficer or  person  authorized  to  make  contracts  on  its  be- 
half, shall  be  fined  not  more  than  three  thousand  dollars. 
All  contracts  or  agreements  made  in  violation  of  this  sec- 
tion shall  be  void;  and  whenever  any  such  sum  of  money 
is  advanced  by  the  United  States,  in  consideration  of  any 
such  contract  or  agreement,  it  shall  forthwith  be  repaid; 
and  in  case  of  failure  or  refusal  to  repay  the  same,  when 
demanded  by  the  proper  officer  of  the  department  under 
whose  authority  such  contract  or  agreement  shall  have 
been  made  or  entered  into,  suit  shall  at  once  be  brought 
against  the  persons  so  failing  or  refusing  and  his  sure- 
ties, for  the  recovery  of  the  money  so  advanced. 

§  892.  Officer  making  contracts  with  member  of  Con- 
gress. Sec.  115.  Whoever,  being  an  officer  of  the  United 
States,  shall  on  behalf  of  the  United  States,  directly  or 
indirectly  make  or  enter  into  any  contract,  bargain,  or 
agreement,  in  writing  or  othei'wise,  with  any  Member 
of  or  Delegate  to  Congress,  or  any  Resident  Commis- 
sioner, after  his  election  or  appointment  as  such  Mem- 
ber, Delegate  or  Resident  Commissioner,  and  either  be- 
fore or  after  he  has  qualified,  and  during  his  continuance 
in  office,  shall  be  fined  not  more  than  three  thousand  dol- 
lars. 

§893.  Contracts  to  which  two  preceding  sections  do 
not  apply.  Sec.  116.  Nothing  contained  in  the  two  pre- 
ceding sections  [891,  892]  shall  extend,  or  be  construed  to 
extend,  to  any  contract  or  agreement  made  or  entered 
into,  or  accepted,  by  any  incorporated  company,  where 
such  contract  or  agreement  is  made  for  the  general  bene- 
fit of  such  incorporation  or  company ;  nor  to  the  purchase 
or  sale  of  bills  of  exchange  or  other  property  by  any 
Member  of  or  Delegate  to  Congress,  or  Resident  Commis- 
sioner, where  the  same  are  ready  for  delivery,  and  pay- 

C.  L.— 49 


770  Criminal  Law 

ment  therefor  is  made  at  the  time  of  making  or  entering 
into  the  contract  or  agreement. 

§  894.  United  States  officer  accepting  bribe.  Sec.  117. 
Whoever,  being  an  officer  of  the  United  States,  or  a  per- 
son acting  for  or  on  behalf  of  the  United  States,  in  any- 
official  capacity,  mider  or  by  virtue  of  the  authority  of 
any  department  or  office  of  the  Government  thereof;  or 
whoever,  being  an  officer  or  person  acting  for  or  on  be- 
half of  either  House  of  Congress,  or  of  any  committee 
of  either  House,  or  of  both  Houses  thereof,  shall  ask,  ac- 
cept, or  receive  any  money,  or  any  contract,  promise, 
undertaking,  obligation,  gratuity,  or  security  for  the  pay- 
ment of  money,  or  for  the  delivery  or  conveyance  of  any- 
thing of  value,  with  intent  to  have  his  decision  or  action 
or  any  question,  matter,  cause,  or  proceeding  which  may 
at  any  time  be  pending,  or  which  may  by  law  be  brought 
before  him  in  his  official  capacity,  or  in  his  place  of  trust 
or  profit,  influenced  thereby,  shall  be  fined  not  more  than 
three  times  the  amount  of  money  or  value  of  the  thing 
so  asked,  accepted,  or  received,  and  imprisoned  not  more 
than  three  years ;  and  shall  moreover,  forfeit  his  office  or 
place  and  thereafter  be  forever  disqualified  from  holding 
any  office  of  honor,  trust,  or  profit  under  the  Government 
of  the  United  States. 

§  895.  Political  contributions  not  to  be  solicited  by  cer- 
tain officers.  Sec.  118.  No  senator  or  Representative  in, 
or  Delegate  or  Resident  Commissioner  to  Congress  or 
Senator,  Representative,  Delegate,  or  Resident  Commis- 
sioner elect,  or  officer  or  employee  of  either  House  of  Con- 
gress, and  no  executive,  judicial,  military,  or  naval  offi- 
cer of  the  United  States,  and  no  clerk  or  employee  of  any 
department,  branch,  or  bureau  of  the  executive,  judicial, 
or  military  or  naval  service  of  the  United  States,  shall, 
directly  or  indirectly,  solicit  or  receive,  or  be  in  any 
manner  concerned  in  soliciting  or  receiving,  any  assess- 
ment, subscription,  or  contribution  for  any  political  pur- 


Offenses  to  Official  Duties  771 

pose  whatever,  from  any  officer,  clerk,  or  employee  of  the 
United  States,  or  any  department,  branch,  or  bureau 
thereof,  or  from  any  person  receiving  any  salary  or  com- 
pensation from  moneys  derived  from  the  Treasury  of  the 
United  States. 

§  896.  Political  contributions  not  to  be  received  in  pub- 
lic offices.  Sec.  119.  No  person  shall,  in  any  room  or 
building  occupied  in  the  discharge  of  official  duties  by 
any  officer  or  employee  of  the  United  States  mentioned 
in  the  preceding  section  [895],  or  in  any  navy-yard,  fort, 
or  arsenal,  solicit  in  any  manner  Avhatever  or  receive  any 
contribution  of  money  or  other  thing  of  value  for  any 
political  purpose  whatever. 

§897.  Immunity  from  official  proscription.  Sec.  120. 
No  officer  or  employee  of  the  United  States  mentioned  in 
section  one  hundred  and  eighteen  [895],  shall  discharge, 
or  promote,  or  degrade,  or  in  any  manner  change  the  offi- 
cial rank  or  compensation  of  any  other  officer  or  em- 
ployee, or  promise  or  threaten  so  to  do,  for  giving  or 
withholding  or  neglecting  to  make  any  contribution  of 
money  or  other  valuable  thing  for  any  political  purpose. 

§  898.  Giving-  money  to  officials  for  political  purposes 
prohibited.  Sec.  121.  No  officer,  clerk  or  other  person 
in  the  service  of  the  United  States  shall,  directly  or 
indirectly,  give  or  hand  over  to  any  other  officer,  clerk, 
or  person  in  the  service  of  the  United  States,  or  to  any 
Senator  or  Member  of  or  Delegate  to  Congress,  or  Resi- 
dent Commissioner,  any  money  or  other  valuable  thing 
on  account  of  or  to  be  applied  to  the  promotion  of  any 
political  object  whatever. 

§  899.  Penalty  for  violating  provisions  of  four  preced- 
ing sections.  Sec.  122.  Whoever  shall  violate  any  pro- 
vision of  the  four  preceding  sections  [889,  890,  891,  892] 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  three  years,  or  both. 


772  Ceiminal  Law 

§900.  Governmental  officer,  etc.,  g:iving'  out  advance 
information  respecting  crop  reports.  Sec.  123.  AVlio- 
ever,  being  an  officer  or  employee  of  the  United  States 
or  a  person  acting  for  or  on  behalf  of  the  United  States 
in  any  capacity,  under  or  by  virtue  of  the  authority  of 
any  department  of  office  tliereof,  and  wliile  liolding  sucli 
office,  emplojanent,  or  position  shall,  by  virtue  of  the 
office,  employment,  or  position  held  by  him,  become  pos- 
sessed of  any  information  wliich  might  exert  an  influence 
upon  or  affect  the  market  value  of  any  product  of  tlie 
soil  grown  within  the  United  States,  which  information 
is  by  law  or  by  the  rules  of  tlie  department  or  office  re- 
quired to  be  withlield  from  publication  until  a  fixed 
time,  and  sliall  willfully  impart,  directly  or  indirectly, 
such  information,  or  any  part  tliereof,  to  any  person 
not  entitled  under  the  law  or  the  rules  of  the  depart- 
ment or  office  to  receive  the  same  or  shall,  before  such 
information  is  made  public  through  regular  official  chan- 
nels, directly  or  indirectly  speculate  in  any  such  product 
respecting  which  he  has  thus  become  possessed  of  such 
information,  by  buying  or  selling  the  same  in  any  quan- 
tity, shall  be  fined  not  more  than  ten  thousand  dollars, 
or  imprisoned  not  more  than  ten  years,  or  both;  Pro- 
vided, That  no  person  shall  be  deemed  guilty  of  a  viola- 
tion of  any  such  rule,  unless  prior  to  such  alleged 
violation  he  shall  have  had  actual  knowledge  thereof. 

§  901.  Government  officer,  etc.,  knowingly  compiling  or 
issuing  false  statistics  respecting  crops.  Sec.  124.  Who- 
ever, being  an  officer  or  employee  of  the  United  States, 
and  whose  duties  recjuire  the  conqnlation  or  report  of 
statistics  or  information  relative  to  the  products  of  the 
soil,  shall  knowingly  compile  for  issuance,  or  issue,  any 
false  statistics  or  information  as  a  report  of  the  United 
States,  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  tlinn  five  years,  or  botli. 


CHAPTER  LIX 


ESPIONAGE  ACT 


S  903.  Espionage  Act,  detailing  cir-       §  919. 
cumstances    made    criminal 
against    Government;    pun- 
ishment for  violation. 

§  904.  Espionage  Act  amended  by 
Act  of  May  16,  1918,  ap- 
proved June   15,   1917. 

§  905.  Making  false  statements,  wil-       §  920. 
fully  to  interfere  with  na- 
tional forces. 

§  907.  Punishment  for  concealing  of-       §  921. 
fenders,  etc. 

§  908.  Communicating  foreign  gov- 
ernment plans  for  defense; 
punishment.  §  922. 

§  909.  Designation  of  other  prohib- 
ited places. 

§  910.  Court-martial,    etc.,    jurisdic-       §  923. 
tion  not  affected. 

§  911.  All  possessions  of  the  United 

States  included,  offenses  on      §  924. 
high   seas,  etc. 

§  912.  Former   act    repealed.  §  925. 

§  913.  Vessels  in  ports  of  the  United 
States. 

§  914.  Forfeiture  of  vessel  if  owner 

refuses  to   obey  rules,   etc.       §  926. 

§  915.  Injury,     etc.,     of     vessel     by 

owner,  etc.,  unlawful.  §  927. 

§  916.  Enforcement  by  the  Presi- 
dent. §  928. 

§  917.  Injuring    vessels    engaged    in 

foreign   commerce;   punish-       §  929. 
ment. 

§  918.  Interference      with      foreign       §  930. 
commerce  by  violent  means. 

773 


Enforcement  of  neutrality, 
maintenance  of  neutrality, 
clearance  or  departure 
withheld  from  vessel  carry- 
ing arms,  etc.,  to  a  bellig- 
erent when  United  States 
is  neutral. 

Detention  of  private  warlike 
vessel  to  prevent  use 
against  friendly  nation. 

Sending  out  armed  vessel  for 
delivery  to  belligerent  na- 
tion at  peace  with  United 
States,  unlawful. 

Clearances,  etc.,  manifests  to 
be  delivered  before  depar- 
ture of  vessels. 

Refusal  of  clearance,  etc.,  if 
statements  believed  to  be 
false,  etc. 

Punishment  for  unlawful  de- 
parture,  etc. 

Interned  belligerent  aliens, 
leaving  limits,  etc.,  without 
permission,  to  be  arrested, 
etc. 

Organizing  expeditions 
against  friendly  powers. 

Enforcement  by  the  Presi- 
dent. 

Compelling  foreign  vessels  to 
depart. 

Former  resolution  and  con- 
flicting laws  repealed. 

Seizure  of  arms  and  other  ar- 
ticles intended   for  export. 


774 


Criminal  Law 


§  931.  Further  detention,  etc.,  ap- 
plication to  court  for  war- 
rant. 

§  932.  Petition  of  owner  for  restora- 
tion. 

§  933.  Libel  proceedings  for  condem- 
nation and  sale  of  seized 
property. 

§  934.  Admiralty  procedure  to  gov- 
ern trials. 

§  935.  Lawful  export  trade  not  in- 
terfered with. 

§  936.  Discretionary  release  of  prop- 
erty. 

§  937.  Enforcement  by  the  Presi- 
dent. 

§  938.  Certain  exports  in  time  of 
war  unlawful. 

§  939.  Punishment   for  violation, 

§  940.  Clearance  refused  vessel 
carrying  prohibited  ar- 
ticles. 

§  941.  Disturbance  of  foreign  rela- 
tions. 

§  942.  Punishment  for  falsely  as- 
suming to  be  foreign  offi- 
cial. 

§  943.  Punishment  for  acting  for 
foreign  government  without 
recognition. 

§944.  "Foreign  government."  Use 
of  term  construed. 

§  945.  Punishment  for  conspiracy  in 
United  States  to  injure 
property  in  foreign  country 
at   peace   therewith. 

8  946.  Passports. 

§  947.  Punishment  for  false  state- 
ments in  application. 


§  948.  Illegally  using  passport  of 
another. 

§  949.  Punishment  for  counterfeit- 
ing, forging,  etc.,  pass- 
ports. 

§  950.  Counterfeiting  government 
seal. 

§  951.  Punishment  for  forging,  etc., 
any  Government  seal. 

§  952.  Punishment  for  forging,  etc., 
naval,  military,  or  official 
passes   or   permits. 

§  953.  Use  of  mails,  matter  violat- 
ing provisions  of  this  act 
nonmailable. 

§  954.  Letters,  etc.,  advocating  trea- 
son, resistance  to  law,  etc., 
nonmailable. 

§  955.  Punishment  for  violation. 

§  956.  General  provisions,  prior  of- 
fenses, etc.,  subject  to 
former   laws. 

§  957.  Alien  anarchists,  etc.,  ex- 
cluded  admission. 

§  958.  Deportation  after  entry  if 
member  of  excluded  classes. 

§  959.  Punishment  for  returning 
after  deportation. 

§  960.  Foreign  travel,  acts  of,  made 
unlawful  during  time  of 
war. 

§  961.  Passports  required  for  all 
entries  and  departures  of 
citizens. 

§  962.  Punishment   for  violation. 

§  963.  Meaning  of  terms  "United 
States"  and   "person." 

§  964.  An  act  to  regulate  further 
the  entry  of  aliens  into  the 
United  States. 


TITLE   I.     ESPIONAGE 


§  903.  Espionage  Act — Detailing-  circumstances  made 
criminal  against  government,  punishment  for  violation. 

'I'liat    (a)   wlioc'vcr,  for  tlio  purpose  of  obtaining  infer- 


Espionage  Act  775 

mation  respecting  the  national  defense  with  intent  or 
reason  to  believe  that  the  information  to  be  obtained  is 
to  be  used  to  the  injury  of  the  United  States,  or  to  the 
advantage  of  any  foreign  nation,  goes  upon,  enters,  flies 
over,  or  otherwise  obtains  information  concerning  any 
velle,  aircraft,  work  of  defense,  navy  yard,  naval  station, 
submarine  base,  coaling  station,  fort,  batteiy,  torpedo 
station,  dockyard,  canal,  railroad,  arsenal,  camp,  factory, 
mine,  telegraph,  telephone,  wireless,  or  signal  station, 
building,  office,  or  other  place  connected  with  the  na- 
tional defense,  owned  or  constructed,  or  in  progress  of 
construction  by  the  United  States  or  under  the  control 
of  the  United  States,  or  of  any  of  its  officers  or  agents, 
or  within  the  exclusive  jurisdiction  of  the  United  States, 
or  any  place  in  which  any  vessel,  aircraft,  arms,  muni- 
tions, or  other  material  or  instruments  for  use  in  time 
of  war  are  being  made,  prepared,  repaired,  or  stored, 
under  any  contract  or  agreement  with  the  United  States, 
or  with  any  person  on  behalf  of  the  United  States,  or 
otherwise  on  behalf  of  the  United  States  or  any  pro- 
hibited place  within  the  meaning  of  section  six  of  this 
title;  of  (b)  whoever  for  the  purpose  aforesaid,  and 
with  like  intent  or  reason  to  believe,  copies,  takes,  makes, 
or  obtains,  or  attempts,  or  induces  or  aids  another  to 
copy,  take,  make,  or  obtain,  any  sketch,  photograph, 
photographic  negative,  blue  print,  plan,  map,  model,  in- 
strument, appliance,  document,  writing,  or  note  of  any- 
thing connected  with  the  national  defense;  or  (c)  who- 
ever, for  the  purpose  aforesaid,  receives  or  obtains  or 
agrees  or  attempts  or  induces  or  aids  another  to  receive 
or  obtain  from  any  person,  or  from  any  source  whatever, 
any  document,  writing,  code  book,  signal  book,  sketch, 
photograph,  photographic  negative,  blue  print,  plan, 
map,  model,  instrument,  appliance,  or  note,  of  anything 
connected  with  the  national  defense,  knowing  or  having 
reason  to  believe,  at  the  time  he  receives  or  obtains, 
or  agrees  or  attempts  or  induces  or  aids  another  to  re- 


776  Criminal  Law 

ceive  or  obtain  it,  that  it  has  been  or  will  be  obtained, 
taken,  made  or  disposed  of  by  any  person  contrary  to 
the  provisions  of  this  title;  or  (d)  whoever,  lawfully  or 
unlawfully  having  possession  of,  access  to,  control  over, 
or  being  intrusted  with  any  document,  writing,  code 
book,  signal  book,  sketch,  photograph,  photographic  neg- 
ative, blue  print,  plan,  map,  model,  instrument,  appli- 
.ance,  or  note  relating  to  the  national  defense,  wilfully 
communicates  or  transmits  or  attempts  to  communicate 
or  transmit  the  same  to  any  person  not  entitled  to  re- 
ceive it,  or  wilfully  retains  the  same  and  fails  to  deliver 
it  on  demand  to  the  officer  or  employee  of  the  United 
States  entitled  to  receive  it;  or  (e)  whoever,  being  in- 
trusted with  or  having  lawful  possession  or  control  of 
any  document,  writing,  code  book,  signal  book,  sketch, 
photograph,  photographic  negative,  blue  print,  plan,  map, 
model,  note,  or  information,  relating  to  the  national  de- 
fense, through  gross  negligence  permits  the  same  to  be 
removed  from  its  proper  place  of  custody  or  delivered 
to  anyone  in  violation  of  his  trust,  or  to  be  lost,  stolen, 
abstracted,  or  destroyed,  shall  be  punished  by  a  fine  of 
not  more  than  ten  thousand  dollars,  or  by  impi-isonment 
for  not  more  than  two  years,  or  botli.^ 

§  904.  Espionage  Act,  approved  June  15, 1917,  amended 
by  Act  of  May  16,  1918.  I^c  it  ciincled  l)y  the  Senate 
and  House  of  Ixcprcsciitalives  of  liic  rniled  States  of 
America  in  Congress  asscm))le(l,  'I'liat  section '  three  of 
title  one  ot"  llic  Act  entitled  "An  Act  to  ])unish  acts 
of  interference  with  the  I'oi'eign  ivhitioiis,  tlie  neutrality, 
and  the  I'oi'eign  eoninierce  oj'  the  I'liited  States,  to  punish 
espionage,  and  better  to  enforce  the  criminal  laws  of  the 
United  States,  and  for  other  purjjoses,"  ajjproved  June 
15,  1917,  be,  and  the  same  is  hereby  amended  so  as  to 
read  as  follows: 

1— Sec.   1,  Art  June   15,  1917,  40 
Stat.  217. 


Espionage  Act  777 

''Sec.  3.  Whoever,  when  the  United  States  is  at  war, 
shall  wilfully  make  or  convey  false  reports  or  false  state- 
ments with  intent  to  interfere  with  the  operation  or 
success  of  the  military  or  naval  forces  of  the  United 
States,  or  to  promote  the  success  of  its  enemies,  or  shall 
wilfully  make  or  convey  false  reports  or  false  statements 
or  say  or  do  anything  except  by  way  of  bona  fide  and 
not  disloyal  advice  to  an  investor  or  investors,  with  in- 
tent to  obstruct  the  sale  by  the  United  States  of  bonds 
or  other  securities  of  the  United  States  or  the  making 
of  loans  by  or  to  the  United  States,  and  whoever,  when 
the  United  States  is  at  war,  shall  wilfully  cause  or  at- 
tempt to  cause,  or  incite  or  attempt  to  incite,  insub- 
ordination, disloyalty,  mutiny,  or  refusal  of  duty,  in  the 
military  or  naval  forces  of  the  United  States,  or  shall 
wilfully  obstruct  or  attempt  to  obstruct  the  recruiting 
or  enlistment  service  of  the  United  States  and  whoever, 
when  the  United  States  is  at  war,  shall  wilfully  utter, 
print,  write,  or  publish  any  disloyal,  profane,  scurrilous, 
or  abusive  language  about  the  form  of  government  of 
the  United  States,  or  the  Constitution  of  the  United 
States,  or  the  military  or  naval  forces  of  the  United 
States,  or  the  flag  of  the  United  States,  or  the  uniform , 
of  the  Army  or  Navy  of  the  United  States,  or  any  lan- 
guage intended  to  bring  the  form  of  government  of  the 
United  States,  or  the  Constitution  of  the  United  States, 
or  the  military  or  naval  forces  of  the  United  States, 
or  the  flag  of  the  United  States,  or  the  uniform  of  the 
Army  or  Navy  of  the  United  States  into  contempt,  scorn, 
contumely,  or  disrepute,  or  shall  wilfully  utter,  print, 
write,  or  publish  any  language  intended  to  incite,  pro- 
voke, or  encourage  resistance  to  the  United  States,  or  to 
promote  the  cause  of  its  enemies,  or  shall  wilfully  display 
the  flag  of  any  foreign  enemy,  or  shall  wilfully  by  utter- 
ance, writing,  printing,  publication,  or  language  spoken, 
urge,  incite,  or  advocate  any  curtailment  of  production 
in  this  country  of  the  prosecution  of  the  war  in  which 


778  Criminal  Law 

the  United  States  may  be  engaged,  with  intent  by  such 
curtailment  to  cripple  or  hinder  the  United  States  in 
the  prosecution  of  the  war,  and  whoever  shall  wilfully 
advocate,  teach,  defend,  or  suggest  the  doing  of  any  of 
the  acts  or  things  in  this  section  enumerated,  and  who- 
ever shall  by  word  or  act  support  or  favor  the  cause  of 
any  country  with  which  the  United  States  is  at  war  or 
by  word  or  act  oppose  the  cause  of  the  United  States 
therein,  shall  be  punished  by  a  fine  of  not  more  than 
ten  thousand  dollars  or  imprisonment  for  not  more 
than  twenty  years,  or  both:  Provided,  That  any  em- 
ployee or  official  of  the  United  States  Government  who 
commits  any  disloyal  act  or  utters  any  unpatriotic  or 
disloyal  language,  or  who,  in  an  abusive  and  violent 
manner  criticizes  the  Army  or  Navy  or  the  flag  of  the 
United  States  shall  be  at  once  dismissed  from  the  sei^v- 
ice.  Any  such  employee  shall  be  dismissed  by  the  head 
of  the  department  in  which  the  employee  may  be  en- 
gaged, and  any  such  official  shall  be  dismissed  by  the 
autliority  having  power  to  appoint  a  successor  to  the 
dismissed  ohicial.'"^ 

§  905.  Making  false  statement,  wilfully  to  interfere 
with  national  forces.  11'  two  or  more  persons  conspire 
to  violate  tiie  jjrovisioiis  of  sections  2  or  8  of  this 
title  [Sees.  904,  907],  and  one  or  more  of  sncli  ])ers()ns 
does  any  act  to  effect  tlie  object  of  the  conspiracy,  each 
of  the  parties  to  such  conspiracy  shall  be  punished  as  in 
said  sections  provided  in  the  case  of  the  doing  of  the  act 
the  accomplishment  of  which  is  the  object  of  such  con- 
spiracy. Except  as  above  provided  conspiracies  to  com- 
mit offenses  under  this  tith>  shall  be  })unishc(l  as  provided 
by  section  thirty  scncm  of  the  Act  to  codify,  revise,  and 
amend  the  penal  laws  of  the  United  States  approved 
March  4,  VM)} 

2— Sec.   1,  Act  May  10,  1918,  40  3— Sec.  3,  Act  Juno  15.  1919,  40 

Stat.    553.  Stat.  219,  Act. 


Espionage  Act  779 

§  907.  Punishment  for  concealing  offenders,  etc.  Who- 
ever harbors  or  conceals  any  person  who  he  knows,  or 
has  reasonable  grounds  to  believe  or  suspect,  has  com- 
mitted, or  is  about  to  commit,  an  offense  under  this  title 
shall  be  punished  by  a  fine  of  not  more  than  ten  thousand 
dollars,  or  by  imprisonment  for  not  more  than  two  years, 
or  both.^ 

§  908.  Communicating  foreign  government  plans  of 
defense;  punishment,  (a)  Whoever,  with  intent  or  rea- 
son to  believe  that  it  is  to  be  used  to  the  injury  of  the 
United  States  or  to  the  advantage  of  a  foreign  nation, 
communicates,  delivers,  or  transmits,  or  attempts  to,  or 
aids  or  induces  another  to,  communicate,  deliver,  or  trans- 
mit, to  any  foreign  government,  or  to  any  faction  or 
party  or  military  or  naval  force  within  a  foreign  coun- 
tiy,  whether  recognized  or  unrecognized  by  the  United 
States,  or  to  any  representative,  officer,  agent,  employee, 
subject,  or  citizen  thereof,  either  directly  or  indirectly, 
any  document,  writing,  code  book,  signal  book,  sketch, 
photograph,  photographic  negative,  blue  print,  plan,  map, 
model,  note,  instrument,  applicance,  or  information  re- 
lating to  the  national  defense,  shall  be  punished  by  im- 
prisonment for  not  more  than  twenty  years:  Provided, 
That  whoever  shall  violate  the  provisions  of  subsection 
(a)  of  this  section  in  time  of  war  shall  be  punished  by 
death  or  by  imprisonment  for  not  more  than  thirty  years; 
and  (b)  whoever,  in  time  of  war,  with  intent  that  the 
same  shall  be  communicated  to  the  enemy,  shall  collect, 
record,  publish,  or  communicate,  or  attempt  to  elicit  any 
inforaiation  with  respect  to  the  movement,  numbers,  de- 
scription, condition,  or  disposition  of  any  of  the  armed 
forces,  ships,  aircraft,  or  war  materials  of  the  United 
States,  or  with  respect  to  the  plans  or  conduct,  or  sup- 

5— Sec.  5,  Act  June  15,  1919,  40 
Stat.    219. 


780  Criminal  Law 

posed  plans  or  conduct  of  any  naval  or  military  opera- 
tions, or  with  respect  to  any  works  or  measures  under- 
taken for  or  connected  with,  or  intended  for  the  fortifi- 
cation or  defense  of  any  place,  or  any  other  information 
relating  to  the  public  defense,  which  might  be  useful 
to  the  enemy,  shall  be  punished  by  death  or  by  imprison- 
ment for  not  more  than  thirty  years.^ 

§909.  Designiation  of  other  prohibited  places.    The 

President  in  time  of  war  or  in  case  of  national  emergency 
may  by  proclamation  designate  any  place  other  than 
those  set  forth  in  subsection  (a)  of  section  1  hereof  in 
which  anything  for  the  use  of  the  Army  or  Navy  is 
being  prepared  or  constructed  or  stored  as  a  prohibited 
place  for  the  purposes  of  this  title:  Provided,  That  he 
shall  determine  that  information  with  respect  thereto 
would  be  prejudicial  to  the  national  defense.' 

§  910.  Courts-martial,   etc.,   jurisdiction  not  affected. 

Nothing  contained  in  this  title  shall  be  deemed  to  limit 
the  jurisdiction  of  the  general  courts-martial,  military 
commissions,  or  naval  courts-martial  under  sections  1342, 
134.3,  and  1G24  of  llie  Revised  Statutes  as  anuMided.^ 

§911.  All  possessions  of  the  United  States  included, 
offenses  on  high  seas,  etc.  The  provisions  of  this  title 
shall  extend  to  all  Territories,  i)OSsessions,  and  places 
subject  to  tlie  jurisdiction  of  tlie  United  States  whether 
or  not  contiguous  thereto,  and  offenses  under  this  title 
when  coiiimidcd  upon  the  high  seas  or  elsewhere  within 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States  and  outside  tlie  territorial  limits  thereof  shall 
be  punishable  hereunder.® 

6— Sec.  2,  Act  .Tnno  IT.,   1917,  40           8— See.   1,  Act  June   l."),  1917,  40 

Htftt.  21819.  .                                    Stat.  219. 

7_.Scc.  6,  Art  .Iiiiif  ir,,  1917,  40  9— Sec.  8,  Art  .Tiinr  1.^,  1917,  40 
Stat.  219.                                                     Stat.    219. 


Espionage  Act  781 

§  912.  Former  act  repealed.  The  Act  entitled  "An  Act 
to  prevent  the  disclosure  of  national  defense  secrets," 
approved  March  3,  1911,  is  hereby  repealed.^" 

TITLE  II.     ESPIONAGE 

§  913.  Vessels  in  ports  of  the  United  States.  When- 
ever the  President  by  proclamation  or  Executive  order 
declares  a  national  emergency  to  exist  by  reason  of  actual 
or  threatened  war,  insurrection,  or  invasion,  or  disturb- 
ance, or  threatened  disturbance  of  the  international  re- 
lations of  the  United  States,  the  Secretary  of  the  Treasury 
may  make  subject  to  the  approval  of  the  President,  rules 
and  regulations  governing  the  anchorage  and  movement 
of  any  vessel,  foreign  or  domestic,  in  the  territorial 
waters  of  the  United  States,  may  inspect  such  vessel  at 
any  time,  place  guards  thereon,  and,  if  necessary  in  his 
opinion  in  order  to  secure  such  vessels  from  damage  or 
injury,  or  to  prevent  damage  or  injury  to  any  harbor 
or  waters  of  the  United  States,  or  to  secure  the  ob- 
servance of  the  rights  and  obligations  of  the  United 
States,  may  take,  by  and  with  the  consent  of  the  Presi- 
dent, for  such  pui"poses,  full  possession  and  control  of 
such  vessel  and  remove  therefrom  the  officers  and  crew 
thereof  and  all  other  persons  not  specially  authorized 
by  him  to  go  or  remain  on  board  thereof. 

Within  the  territory  and  waters  of  the  Canal  Zone 
the  Governor  of  the  Panama  Canal,  with  the  approval 
of  the  President,  shall  exercise  all  the  powers  conferred 
by  this  section  on  the  Secretary  of  the  Treasury.^^ 

§  914.  Forfeiture  of  vessel  if  owner  refuses  to  obey 
rules,  etc.  If  any  owner,  agent,  master,  officer,  or  per- 
son in  charge,  or  any  member  of  the  crew  of  any  such 
vessel  fails  to  comply  with  any  regulation  or  rule  issued 
or  order  given  by  the  Secretary  of  the  Treasuiy  or  the 

10— Sec.    9,    Act    June    15,    1917,  11— Sec.    1,    June    15,    1917,    40 

40  Stat.  219.  Stat.  220. 


782  Ckimixal  Law 

Governor  of  the  Panama  Canal  under  the  provisions  of 
this  title,  or  obstructs  or  interferes  with  the  exercise  of 
any  power  conferred  by  this  title,  the  vessel,  together 
with  her  tackle,  apparel,  furniture,  and  equipment,  shall 
be  subject  to  seizure  and  forfeiture  to  the  United  States 
in  the  same  manner  as  merchandise  is  forfeited  for  viola- 
tion of  the  customs  revenue  laws;  and  the  person  guilty 
of  such  failure,  obstruction,  or  interference  shall  be  fined 
not  more  than  ten  thousand  dollars,  or  imprisoned  not 
more  than  two  years,  or  both.^'^ 

§  915.  Injury,  etc.,  of  vessel  by  owner,  etc.,  unlawful. 

It  shall  be  unlawful  for  the  owner  or  master  or  any 
other  person  in  charge  or  command  of  any  private  vessel, 
foreign  or  domestic,  or  for  any  member  of  the  crew  or 
other  person,  within  the  territorial  waters  of  the  United 
States,  wilfully  to  cause  or  permit  the  destruction  or 
injury  of  such  vessel  or  knowingly  to  permit  said  vessel 
to  be  used  as  a  place  of  resort  for  any  person  conspiring 
with  another  or  preparing  to  commit  any  offense  against 
the  United  States,  or  in  violation  of  the  treaties  of  the 
United  States  or  of  the  obligations-  of  the  United  States 
under  the  law  of  nations,  or  to  defraud  the  United  States, 
or  knowingly  to  permit  such  vessels  to  be  used  in  viola- 
tion of  the  rights  and  obligations  of  the  United  States 
under  the  law  of  nations;  and  in  case  such  vessel  shall 
be  so  used,  with  the  knowledge  of  tlie  owner  or  master 
or  otiier  jxm'soh  in  cliargc  or  coniniand  tliei'eof,  the  vessel, 
togetlicr  with  her  tackh>,  appnicl,  runiilure,  and  equip- 
ment, shall  b(!  subject  to  seizure  and  I'oiTeitnrc  to  the 
Ijiited  States  in  the  same  ninnnei-  as  merchandise  is 
iorleited  foi'  \i(»l;ili(in  lor  Ihe  ensloms  revenue  laws; 
and  whoever  \  ioh-ites  lliis  section  slinll  hi'  fined  not  more 
tiian  ten  thousand  doliai's,  or  iin|iiisone(l  nol  nioiv  than 
two  years,  or  both.^^ 

12— Sec.    2,    Act    June    hO,    ]917,  13— Sec.    3,    June    15,    1917,    40 

40    Stat.    220.  Stat.    220. 


Espionage  Act  783 

§  916.  Enforcement  by  the  President.  The  President 
may  employ  such  part  of  the  land  or  naval  forces  of  the 
United  States  as  he  may  deem  necessary  to  carry  out 
the  purpose  of  this  title.^* 

TITLE   III.     ESPIONAGE 

§  917.  Injuring-  vessels  engaged  in  foreign  commerce, 
punishment.  Whoever  shall  set  fire  to  any  vessel  of 
foreign  registry,  or  any  vessel  of  American  registry  en- 
titled to  engage  in  commerce  with  foreign  nations,  or  to 
any  vessel  of  the  United  States  as  defined  in  section  310 
of  the  Act  of  March  4,  1909,  entitled  "An  Act  to  codify, 
revise,  and  amend  the  penal  laws  of  the  United  States," 
or  to  the  cargo  of  the  same,  or  shall  tamper  with  the 
motive  power  or  instrumentalities  of  navigation  of  such 
vessel,  or  shall  place  bombs  or  explosives  in  or  upon 
such  vessel,  or  shall  do  any  other  act  to  or  upon  such 
vessel  while  within  the  jurisdiction  of  the  United  States, 
or,  if  such  vessel  is  of  American  registry,  while  she  is 
on  the  high  sea,  with  intent  to  injure  or  endanger  the 
safety  of  the  vessel  or  of  her  cargo,  or  of  persons  on 
board,  whether  the  injury  or  danger  is  so  intended  to 
take  place  within  the  jurisdiction  of  the  United  States, 
or  after  the  vessel  shall  have  departed  therefrom;  or 
whoever  shall  attempt  or  conspire  to  do  any  such  acts 
with  such  intent  shall  be  fined  not  more  than  ten  thou- 
sand dollars,  or  imprisoned  not  more  than  twenty  years, 
or  both.^^ 

TITLE   IV.     ESPIONAGE 

§  918.  Interference  with  foreign  commerce  by  violent 
means.  Whoever,  with  intent  to  prevent,  interfere  with, 
or  obstruct  or  attempt  to  prevent,  interfere  with,  or  ob- 
stnict  the  exportation  to  foreign  countries  of  articles 

14— Sec.  4,  40  Stat.  220,  Act  June  15— Sec.  1,  Act  June  15,  1917, 
15,  1917.  40  Stat.  221. 


784  Criminal  Law 

from  the  United  States  shall  injure  or  destroy,  by  fire 
or  explosives,  such  articles  or  the  places  where  they  may 
be  while  in  such  foreign  commerce,  shall  be  fined  not 
more  than  ten  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both.^^ 

TITLE  V.     ESPIONAGE 

§  919.  Enforcement  of  neutrality,  maintenance  of  neu- 
trality, clearance  or  departure  withheld  from  vessel 
carrying-  arms,  etc.,  to  a  belligerent  when  United  States 
is  neutral.  During  a  war  in  which  the  United  States  is 
a  neutral  nation,  the  President,  or  any  person  thereunto 
autiiorized  by  him,  may  withhold  clearance  from  or  to 
any  vessel,  domestic  or  foreign,  which  is  required  by 
law  to  secure  clearance  before  departing  from  port  or 
from  the  jurisdiction  of  the  United  States,  or,  by  service 
of  formal  notice  upon  the  owner,  master,  or  person  in 
command  or  having  charge  of  any  domestic  vessel  not 
re(iuired  by  law  to  secure  clearances  before  so  depart- 
ing, to  forbid  its  departure  from  port  or  from  the  juris- 
diction of  the  United  States,  whenever  there  is  reason- 
a])l('  cause  to  believe  that  any  such  vessel,  domestic  or 
foreign,  whether  recpiiring  ck'arance  or  not,  is  about  to 
carry  fuel,  arms,  ammunition,  men,  supplies,  disi)atches, 
or  information  to  any  warship,  tender,  or  supply  ship 
oi-  a  foreign  belligerent  nation  in  violation  of  the  laws, 
treaties,  or  obligations  of  the  I'nited  States  under  the 
law  of  nations;  and  it  shall  thereupon  be  unlawful  for 
such  N'essel   to  (h'part.^'' 

ij  920.  Detention  of  private  warlike  vessel  to  prevent 
use  against  friendly  nation.  Duiin.u'  a  wai-  in  which  the 
United  States  is  a  neiitial  nation,  the  President,  or  any 
person  tliereunto  authoi-ized  hy  hini,  may  detain  any 
armed  vessel  owned  wholly  or  in  part  by  American  eiti- 

ie_8cc.    1,    Act    .lunc    ir,,    1!)17,  17— Sec.    ],    Act    .Juno    IT),    1917, 

40  Stnt.  221.  40  Stat.  221. 


Espionage  Act  785 

zens,  or  any  vessel,  domestic  or  foreign  (otlier  than  one 
which  has  entered  the  ports  of  the  United  States  as  a 
public  vessel),  which  is  manifestly  built  for  warlike  pur- 
poses or  has  been  converted  or  adapted  from  a  private 
vessel  to  one  suitable  for  warlike  use,  until  the  owner 
or  master,  or  person  having  charge  of  such  vessel,  shall 
furnish  proof  satisfactory  to  the  President,  or  to  the 
person  duly  authorized  by  him,  that  the  vessel  will  not 
be  employed  by  the  said  owners,  or  master,  or  person 
having  charge  thereof,  to  cruise  against  or  commit  or 
attempt  to  commit  hostilities  upon  the  subjects,  citizens, 
or  property  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people  with  which  the  United  States 
is  at  peace,  and  that  the  said  vessel  will  not  be  sold  or 
delivered  to  any  belligerent  nation,  or  to  an  agent,  offi- 
cer, or  citizen  of  such  nation,  by  them  or  any  of  them, 
within  the  jurisdiction  of  the  United  States,  or,  having 
left  that  jurisdiction,  upon  the  high  seas.^^ 

§  921.  Sending-  out  armed  vessel  for  delivery  to  bellig- 
erent nation  at  peace  with  United  States,  unlawful.  Dur- 
ing a  war  in  which  the  United  States  is  a  neutral  nation, 
it  shall  be  unlawful  to  send  out  of  the  jurisdiction  of  the 
United  States  any  vessel  built,  armed,  or  eq^uipped  as 
a  vessel  of  war,  or  converted  from  a  private  vessel  into 
a  vessel  of  war,  with  any  intent  or  under  any  agreement 
or  contract,  written  or  oral,  that  such  vessel  shall  be 
delivered  to  a  belligerent  nation,  or  to  an  agent,  officer, 
or  citizen  of  such  nation,  or  with  reasonable  cause  to 
believe  that  the  said  vessel  shall  or  will  be  employed 
in  the  service  of  any  such  belligerent  nation  after  its 
departure  from  the  jurisdiction  of  the  United  States.^^ 

§  922.  Clearances,  etc.,  manifests  to  be  delivered  before 
departure  of  vessels.  During  a  war  in  which  the  United 
States  is  a  neutral  nation,  in  addition  to  the  facts  re- 

4,    June    15,    1917,    40 


18— Sec.    2,    Act    June    15, 

1917, 

19— Sec. 

40  Stat.  222. 

Stat.    222. 

C.  L.— 50 

786  Criminal  Law 

quired  by  sections  4197,  4198,  and  4200  of  the  Revised 
Statutes  to  be  set  out  in  the  masters'  and  shippers' 
manifests  before  clearance  will  be  issued  to  vessels  bound 
to  foreign  ports,  each  of  which  sections  of  the  Revised 
Statutes  is  hereby  declared  to  be  and  is  continued  in 
full  force  and  effect,  eveiy  master  or  person  having 
charge  or  command  of  any  vessel,  domestic  or  foreign, 
whether  requiring  clearance  or  not,  before  departure  of 
such  vessel  from  port  shall  deliver  to  the  collector  of 
customs  for  the  district  wherein  such  vessel  is  then  lo- 
cated a  statement  duly  verified  by  oath  that  the  cargo 
or  any  part  of  the  cargo  is  or  is  not  to  be  delivered  to 
other  vessels  in  port  or  to  be  transshipped  on  the  high 
seas  and,  if  it  is  to  be  so  delivered  or  transshipped,  stat- 
ing the  kind  and  quantities  and  the  value  of  the  total 
quantity  of  each  kind  of  article  so  to  be  delivered  or 
transshipped,  and  the  name  of  the  person,  coi*poration, 
vessel,  or  government,  to  whom  the  delivery  or  trans- 
shipment is  to  be  made;  and  the  owners,  shippers,  or 
consignors  of  the  cargo  of  such  vessel  shall  in  the  same 
manner  and  under  the  same  conditions  deliver  to  the 
collector  like  statements  under  oath  as  to  the  cargo  or 
the  parts  thereof  laden  or  shipped  by  them  respectively.^" 

§  923.  Refusal  of  clearance,  etc.,  if  statements  believed 
to  be  false,  etc.  Whenever  it  appears  that  the  vessel  is 
not  entitled  to  clearance  or  whenever  there  is  reasonable 
cause  to  believe  that  the  additional  statements  under 
oath  required  in  the  foregoing  section  [922]  are  false, 
tlie  collector  of  customs  for  the  district  in  which  the  ves- 
sel is  located  may,  subject  to  review  by  the  Secretary  of 
Commerce,  refuse  clearance  to  any  vessel,  domestic  or 
foreign,  nnd  by  l"(»iiii;il  notice  served  upon  Hie  owners, 
masters,  or  person  or  persons  in  connnand  or  charge  of 
any  domestic  vessel  for  which  clearance  is  not  required 

20— Sec.    4,    June    15,    1917,     JO 
Stat.  222. 


Espionage  Act  787 

by  law,  forbid  the  departure  of  the  vessel  from  the  port 
or  from  the  jurisdiction  of  the  United  States;  and  it 
shall  thereupon  be  unlawful  for  the  vessel  to  depart." 

§  924.  Punishment  for  unlawful  departure,  etc.  Wlio- 
ever,  in  violation  of  any  of  the  provisions  of  this  title, 
shall  take,  or  attempt  or  conspire  to  take,  or  authorize 
the  taking  of  any  such  vessels,  out  of  port  or  .from  the 
jurisdiction  of  the  United  States,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both;  and,  in  addition,  such  vessel,  her 
tackle,  apparel,  furniture,  equipment,  and  her  cargo  shall 
be  forfeited  to  the  United  States.^^ 

§  925.  Interned  bellig"erent  aliens,  leaving  limits,  etc., 
without  permission,  to  be  arrested,  etc.  Whoever,  be- 
ing a  person  belonging  to  the  armed  land  or  naval  forces 
of  a  belligerent  nation  or  belligerent  faction  of  any  na- 
tion and  being  interned  in  the  United  States,  in  accord- 
ance with  the  law  of  nations,  shall  leave  or  attempt  to 
leave  said  jurisdiction,  or  shall  leave  or  attempt  to  leave 
the  limits  of  internment  in  which  freedom  of  movement 
has  been  allowed,  without  permission  from  the  proper 
official  of  the  United  States  in  charge,  or  shall  wilfully 
overstay  a  leave  of  absence  granted  by  such  official, 
shall  be  subject  to  arrest  by  any  marshal  or  deputy 
marshal  of  the  United  States,  or  by  the  militaiy  or  naval 
authorities  thereof,  and  shall  be  returned  to  the  place 
of  internment  and  there  confined  and  safely  kept  for 
such  period  of  time  as  the  official  of  the  United  States 
in  charge  shall  direct;  and  whoever,  within  the  jurisdic- 
tion of  the  United  States  and  subject  thereof,  shall  aid 
or  entice  any  interned  person  to  escape  or  attempt  to 
escape  from  the  jurisdiction  of  the  United  States,  or 
from  the  limits  of  intenmient  prescribed,  shall  be  fined 

21— Sec.  5,  June  15,  1917,  40     22— Sec.  6,  June  15,  1917,  40 
Stat.  222.  Stat.  222. 


788  Criminal  Law 

not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both.^^ 

§  926.  Organizing  expeditions  against  friendly  powers. 

Section  13  of  the  Act  entitled  "An  Act  to  codify,  revise, 
and  amend  the  penal  laws  of  the  United  States,"  ap- 
proved March  4,  1909,  is  hereby  amended  so  as  to  read 
as  follows: 

"Sec.  13.  Whoever,  within  the  territory  or  jurisdic- 
tion of  the  United  States  or  of  any  of  its  possessions, 
knowingly  begins  or  sets  on  foot  or  provides  or  prepares 
a  means  for  or  furnishes  the  money  for,  or  who  takes 
part  in,  any  military  or  naval  expedition  or  enteiprise 
to  be  carried  on  from  thence  against  the  territory  or 
dominion  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people  with  whom  the  United  States  is  at 
peace,  shall  be  fined  not  more  than  $3,000,  or  imprisoned 
not  more  than  three  years,  or  both."  ** 

§  927.  Enforcement  by  the  President.  That  the  Presi- 
dent may  employ  such  jiart  of  tlie  land  or  naval  forces 
of  the  United  States  as  he  may  deem  necessary  to  carry 
out  the  ))urposes  of  tiiis  title.^^ 

i^  928.  Compelling  foreign  vessels  to  depart.  Section 
1.")  of  the  Act  entitled  "An  Act  to  codify,  revise,  and 
amend  tlie  ))enal  laws  of  tlie  United  States,"  approved 
March  4,  1909,  is  hereby  amended  so  as  to  read  as  fol- 
lows: 

"Sec.  IT).  It  shall  he  lawful  foi-  the  President  to  em- 
ploy such  j)art  of  the  land  or  luival  forces  of  the  United 
States,  oi-  of  the  militia  thereof,  as  he  may  deem  neces- 
sai'v   to   compel   any    foi'eign    vessel    to   (lei)art    fi'om   the 

23— Sec.  7,    .liiiic     1.-,,     I'M  7,    40  C.";— Sec.    St,    .luiu-     IT),     1<»17,    40 

Stat.  223.  Sfat.  223. 

24— Sec.  K,    June     l."],     1917,    40 
Staf.  22:{. 


Espionage  Act  789 

United  States  or  any  of  its  possessions  in  all  cases  in 
which,  by  the  law  of  nations  or  the  treaties  of  the  United 
States,  it  ought  not  to  remain,  and  to  detain  or  prevent 
any  foreign  vessel  from  so  departing  in  all  cases  in 
which,  by  the  law  of  nations  or  the  treaties  of  the  United 
States,  it  is  not  entitled  to  depart." '^^ 

§  929.  Former  resolution  and  conflicting  laws  repealed. 

The  joint  resolution  approved  March  4,  1915,  "To  em- 
power the  President  to  better  enforce  and  maintain  the 
neutrality  of  the  United  States,"  and  any  Act  or  parts 
of  Acts  in  conflict  with  the  provisions  of  this  title  are 
hereby  repealed.^''^ 

TITLE    VI.     ESPIONAGE 

§  930.  Seizure  of  arms  and  other  articles  intended  for 
export.  Whenever  an  attempt  is  made  to  export  or  ship 
from  or  take  out  of  the  United  States,  any  arms  or  muni- 
tions of  war,  or  other  articles,  in  violation  of  law,  or 
whenever  there  shall  be  known  or  probable  cause  to  be- 
lieve that  any  such  arms  or  munitions  of  war,  or  other 
articles,  are  being  or  are  intended  to  be  exported,  or 
shipped  from,  or  taken  out  of  the  United  States,  in  vio- 
lation of  law,  the  several  collectors,  naval  officers,  sur- 
veyors, inspectors  of  customs,  and  marshals,  and  deputy 
marshals  of  the  United  States,  and  every  other  person 
duly  authorized  for  the  purpose  by  the  President,  may 
seize  and  detain  any  articles  or  munitions  of  war  about 
to  be  exported  or  shipped  from,  or  taken  out  of  the 
United  States,  in  violation  of  law,  and  the  vessels  or 
vehicles  containing  the  same,  and  retain  possession  there- 
of until  released  or  disposed  of  as  hereinafter  directed. 
If  upon  due  inquiry  as  hereinafter  provided,  the  prop- 
erty seized  shall  appear  to  have  been  about  to  be  so  un- 

26— Sec.  10,  June  15,  1917,  40  27— Sec.  11,  June  15,  1917,  40 
Stat.  223.  Stat.  223. 


790  .  Ceiminal  Law 

lawfully  exported,  shipped  from,  or  taken  out  of  the 
T'nited  States,  the  same  shall  be  forfeited  to  the  United 
States.28 

§  931.  Further  detention,  etc.,  application  to  court  for 
warrant  for.  It  shall  be  the  duty  of  the  person  making 
any  seizure  under  this  title  to  apply,  with  due  diligence, 
to  the  judge  of  the  district  court  of  the  United  States, 
or  to  the  judge  of  the  United  States  district  court  of 
the  Canal  Zone,  or  to  the  judge  of  a  court  of  first  in- 
stance in  the  Philippine  Islands,  having  jurisdiction  over 
the  place  within  which  the  seizure  is  made,  for  a  warrant 
to  justify  the  further  detention  of  the  property  so  seized, 
which  warrant  shall  be  granted  only  on  oath  or  affirma- 
tion showing  that  there  is  known  or  probable  cause  to 
believe  that  the  property  seized  is  being  or  is  intended 
to  be  exported  or  shipped  from  or  taken  out  of  the  United 
States  in  violation  of  law;  and  if  the  judge  refuses  to 
issue  the  warrant,  or  application  therefor  is  not  made 
by  the  person  making  the  seizure  within  a  reasonable 
time,  not  exceeding  ten  days  after  the  seizure,  the  prop- 
erty shall  forthwith  be  restored  to  the  owner  or  person 
from  whom  seized.  If  the  judge  is  satisfied  that  the 
seizure  was  justified  under  the  provisions  of  this  title 
and  issues  waiM'niit  accordingly,  lluMi  the  property  shall 
be  detained  by  Ihc  jx'i-son  seizing  it  uiilil  ilie  President, 
who  is  hereby  exi)ressly  authorized  so  to  do,  orders  il 
to  be  restored  to  the  owner  or  claimant,  or  until  it  is 
discharged  in  due  course  of  law  on  peiilion  of  the  claim- 
ant, or  oil  trial  of  coiKlcninalioii  proceedings,  as  here- 
iiiaftiT  j)i-ovi(l('(l.^^ 

ij  932.  Petition  of  owner  for  restoration.  The  owner 
or  clainiant  of  any  property  seized  under  this  title  may, 
at  any  time  before  condemaalion  proceedings  have  been 
instituted,  as  hereinafter  provided,  file  his  petition  for 

28— Sec.    1,    .Tunc    \5,    1917,    40  29— Sec.    2,    Juno    15,    1917,    40 

Stat.    224.  Stat.  224. 


Espionage  Act  791 

its  restoration  in  the  district  court  of  the  United  States, 
or  the  district  court  of  the  Canal  Zone,  or  the  court  of 
first  instance  in  the  Philippine  Islands,  having  jurisdic- 
tion over  the  place  in  which  the  seizure  was  made,  where- 
upon the  court  shall  advance  the  cause  for  hearing  and 
determination  with  all  possible  dispatch,  and,  after  caus- 
ing notice  to  be  given  to  the  United  States  attorney  for 
the  district  and  to  the  person  making  the  seizure,  shall 
proceed  to  hear  and  decide  whether  the  property  seized 
shall  be  restored  to  the  petitioner  or  forfeited  to  the 
United  States.^o 

§  933.  Libel  proceedings  for  condemnation  and  sale  of 
seized  property.  Whenever  the  person  making  any 
seizure  under  this  title  applies  for  and  obtains  a  war- 
rant for  the  detention  of  the  property,  and  (a)  upon 
the  hearing  and  determination  of  the  petition  of  the 
owner  or  claimant  restoration  is  denied,  or  (b)  the  owner 
or  claimant  fails  to  file  a  petition  for  restoration  within 
thirty  days  after  the  seizure,  the  United  States  attorney 
for  the  district  wherein  it  was  seized,  upon  direction  of 
the  Attorney  General,  shall  institute  libel  proceedings  in 
the  United  States  district  court  of  the  Canal  Zone  or 
the  court  of  first  instance  of  the  Philippine  Islands  hav- 
ing jurisdiction  over  the  place  wherein  the  seizure  was 
made,  against  the  property  for  condemnation;  and  if, 
after  trial  and  hearing  of  the  issues  involved,  the  prop- 
erty is  condemned,  it  shall  be  disposed  of  by  sale,  and 
the  proceeds  thereof,  less  the  legal  costs  and  charges, 
paid  into  the  Treasury.'^ 

§  934.  Admiralty  procedure  to  govern  trials.  The  pro- 
ceedings in  such  summary  trials  upon  the  petition  of  the 
owner  or  claimant  of  the  property  seized,  as  well  as  in 
the  libel  cases  herein  provided  for,  shall  conform,  as 
near  as  may  be,  to  the  proceedings  in  admiralty,  except 

30— Sec.  3,  June  15,  1917,  40  31— Sec.  4,  June  15,  1917,  40 
Stat.  224.  Stat.  224. 


7;)l'  Criminal  Law 

that  either  party  may  demand  trial  by  jury  of  any  isSue 
of  fact  joined  in  such  libel  cases,  and  all  such  proceed- 
ings shall  be  at  the  suit  of  and  in  the  name  of  the  United 
States:  Provided,  That  upon  the  payment  of  the  costs 
and  legal  expenses  of  both  the  sunmiary  trials  and  the 
libel  proceedings  herein  provided  for,  and  the  execution 
and  delivery  of  a  good  and  sufficient  bond  in  an  amount 
double  the  value  of  the  property  seized,  conditioned 
that  it  will  not  be  exported  or  used  or  employed  contrary 
to  the  provisions  of  this  title,  the  court,  in  its  discretion, 
may  direct  that  it  be  delivered  to  the  owners  thereof  or 
to  the  claimants  thereof.'^ 

§  935.  Lawful  export  trade  not  interfered  with.  Ex- 
cept in  those  cases  in  which  the  exportation  of  arms  and 
munitions  of  war  or  other  articles  is  forbidden  by  procla- 
mation or  otherwise  by  the  President,  as  provided 
in  section  1  [930]  of  this  title,  nothing  herein  contained 
shall  be  construed  to  extend  to,  or  interfere  with  any 
trade  in  such  commodities,  conducted  with  any  foreign 
[)ort  or  place  whatsoever,  or  with  any  other  trade  which 
might  have  been  lawfully  carried  on  before  the  passage 
(if  this  lillc,  under  ihc  law  of  nations,  or  under  the 
troatiesor  conventions  entered  into  by  \hv  T'niiod  States, 
or  under  the  laws  thereoi'.^^ 

§936.  Discretionary  release  of  property.  Upon  pay- 
Tne!it  of  tlie  costs  and  legal  exi)enses  incurred  in  any 
such  sunniiMiy  trial  for  possession  or  libel  i)rocoedings, 
the  President  is  heichy  aut  lioi-i/.ed,  in  his  discretion,  to 
oilier  the  release  and  restoration  to  the  owner  or  claim- 
ant, as  the  case  may  be,  of  any  property  seized  or  con- 
demned under  the  provisions  of  this  title.'* 

32— 8cc.  r,,    .Tunc     15,     1917,    40  34— Sec.    7.    .Juno     15,    1917,    40 

Htat.  225.  Stjit.  22.5. 

33_8cP.  r,.    .T„np     1.'),     1917,     40 
Htat.  225. 


Espionage  Xct  793 

§  937.  Enforcement  by  the  President.  The  President 
may  employ  such  part  of  the  land  or  naval  forces  of  the 
United  States  as  he  may  deem  necessary  to  carry  out 
the  purposes  of  this  title.'^ 

TITLE   VII.     ESPIONAGE 

§  938.  Certain  exports  in  time  of  war  unlawful.  When- 
ever during  the  present  war  the  President  shall  find  the 
public  safety  shall  so  require,  and  shall  make  proclama- 
tion thereof,  it  shall  be  unlawful  to  export  from  or  ship 
from  or  take  out  of  the  United  States  to  any  country 
named  in  such  joroclamation  any  article  or  articles  men- 
tioned in  such  proclamation,  except  at  such  time  or  times, 
and  under  such  regulations  and  orders,  and  subject  to 
such  limitations  and  exceptions  as  the  President  shall 
prescribe,  until  otherwise  ordered  by  the  President  or 
by  Congress:  Provided,  however.  That  no  preference 
shall  be  given  to  the  ports  of  one  State  over  those  of 
another.^^ 

§  939.  Punishment  for  violation.  Any  person  who 
shall  export,  ship,  or  take  out,  or  deliver  or  attempt  to 
deliver  for  export,  shipment,  or  taking  out,  any  article 
in  violation  of  this  title,  or  of  any  regulation  or  order 
made  hereunder,  shall  be  fined  not  more  than  ten  thou- 
sand dollars,  or,  if  a  natural  person,  imprisoned  for  not 
more  than  two  years,  or  both ;  and  any  article  so  delivered 
or  exported,  shipped,  or  taken  out,  shall  be  seized  and 
forfeited  to  the  United  States;  and  any  officer,  director, 
or  agent  of  a  cornoration  who  participates  in  any  such 
violation  shall  be  liable  to  like  fine  or  imprisonment,  or 
both.'' 

35— Sec.  8,  June  15,  1917,  40     37— Sec.  2,  June  15,  1917,  40 
Stat.  225.  Stat.  225. 

36— Sec.  1,  June  15,  1917,  40 
Stat.  225. 


794  Criminal  Law 

§  940.  Clearance  refused  vessel  carr3dng  prohibited  ax- 
ticles,  Whenever  there  is  reasonable  cause  to  believe 
that  any  vessel,  domestic  or  foreign,  is  about  to  carry- 
out  of  the  United  States  any  article  or  articles  in  viola- 
tion of  the  provisions  of  this  title,  the  collector  of  customs 
for  the  district  in  which  such  vessel  is  located  is  hereby 
authorized  and  empowered,  subject  to  review  by  the  Sec- 
retary of  Commerce,  to  refuse  clearance  to  any  such 
vessel,  domestic  or  foreign,  for  which  clearance  is  re- 
quired by  law,  and  by  fomial  notice  served  upon  the 
owners,  master,  or  person  or  persons  in  command  or 
charge  of  any  domestic  vessel  for  which  clearance  is 
not  required  by  law,  to  forbid  the  departure  of  such  vessel 
from  the  port,  and  it  shall  thereupon  be  unlawful  for 
such  vessel  to  depart.  Whoever,  in  violation  of  any  of 
the  provisions  of  this  section  [940]  shall  take,  or  attempt 
to  take,  or  authorize  the  taking  of  any  such  vessel,  out  of 
port  or  from  the  jurisdiction  of  the  United  States,  shall 
be  fined  not  more  tlian  ten, thousand  dollars,  or  impris- 
oned not  more  than  two  years,  or  both;  and,  in  addition, 
such  vessel,  lier  tackle,  apparel,  furniture,  equipment, 
and  her  forbidden  cargo  shall  be  forfeited  to  the  United 
States. 

TITLE  VIII.     ESPIONAGE 

§  941.  Disturbance  of  foreign  relations.  "Whoever,  in 
relation  to  any  dispute  or  controversy  l)etween  a  foreign 
government  and  the  United  States,  shall  wilfully  and 
knowingly  iiialsc  any  nnlruc  statement,  either  orally  or 
in  writing,  luidci-  oath  before  any  person  authorized  and 
eini)ower('(l  lo  administer  oaths,  which  the  afliant  has 
knowledge  or  reason  to  believe  will,  or  may  be  used  to 
influence  the  measures  or  conduct  of  any  foreign  gov- 
ernment, or  of  any  officer  or  ag(Uit  4Df  any  foreign  gov- 
ernment, to  the  injury  of  the  United  States,  or  with  a 
view  or  intent  to  ijifluence  any  measure  of  or  action  by 
the   (lovenmient    of   the   Ignited    States,   or  any  branch 


Espionage  Act  795 

thereof,  to  the  injury  of  the  United  States,  shall  be  fined 
not  more  than  five  thousand  dollars,  or  imprisoned  not 
more  than  five  years,  or  both.^® 

§  942.  Punishment  for  falsely  assuming-  to  be  foreign 
official.  Whoever  within  the  jurisdiction  of  the  United 
States  shall  falsely  assume  or  pretend  to  be  a  diplomatic 
or  consular,  or  other  official  of  a  foreign  government 
duly  accredited  as  such  to  the  Government  of  the  United 
States  with  intent  to  defraud  such  foreign  government 
or  any  person,  and  shall  take  upon  himself  to  act  as 
such  or  in  such  pretended  character  shall  demand  or 
obtain,  or  attempt  to  obtain  from  any  person  or  from 
said  foreigTi  government,  or  from  any  officer  thereof, 
any  money,  paper,  document,  or  other  thing  of  value, 
shall  be  fined  not  more  than  five  thousand  dollars,  or 
imprisoned  not  more  than  five  years,  or  both.^^ 

§  943.  Punishment  for  acting  for  foreign  government 
without  recognition.  Whoever,  other  than  a  diplomatic 
or  consular  officer  or  attache,  shall  act  in  the  United 
States  as  an  agent  of  a  foreign  government  without  prior 
notification  to  the  Secretary  of  State  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both.*" 

§  944.  "Foreign  government,"  use  of  term  construed. 
The  words  ''foreign  government,"  as  used  in  this  Act 

and  in  sections  812,  813,  817,  826,  827,  828  and  829, 
of  the  Act  of  March  4,  1909,  entitled  ''An  Act  to  codify, 
revise,  and  amend  the  penal  laws  of  the  United  States," 
shall  be  deemed  to  include  any  Government,  faction,  or 
body  of  insurgents  within  a  country  with  which  the 

38— Sec.  1,  June  15,  1917,  40  40— Sec.  3,  June  15,  1917,  40 
Stat.  226.  Stat.  226. 

39— Sec.  2,  June  15,  1917,  40 
Stat.  226. 


790  Criminal  Law 

United  States  is  at  peace,  which  Government,  faction, 
or  body  of  insurgents  may  or  may  not  have  been  recog- 
nized by  the  United  States  as  a  Government." 

§  945.  Punishment  for  conspiracy  in  United  States  to 
injure  property  in  foreign  country  at  peace  therewith. 

If  two  or  more  persons  within  the  jurisdiction  of  the 
United  States  conspire  to  injure  or  destroy  specific  prop- 
erty situated  within  a  foreign  country  and  belonging 
to  a  foreign  Government  or  to  any  political  subdivision 
thereof  with  which  the  United  States  is  at  peace,  or  any 
railroad,  canal,  bridge,  or  other  public  utility  so  situated, 
and  if  one  or  more  of  such  persons  commits  an  act  within 
the  jurisdiction  of  the  United  States  to  effect  the  object 
of  the  conspiracy,  each  of  the  parties  to  the  conspiracy 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  three  years,  or  both.  Any  indict- 
ment or  information  under  this  section  shall  describe  the 
siJGcific  property  which  it  was  the  object  of  the  conspiracy 
to  injure  or  destroy.*^ 

TITLE  IX.     ESPIONAGE 

§  946.  Passports.  Before  a  passport  is  issued  to  any 
person  by  or  under  authority  of  the  United  States  such 
])ci-s(»ii  shall  subscribe  to  and  submit  a  Avritten  jqiplica- 
lioii  duly  verified  by  liis  oath  before  a  person  autliorizcd 
and  empowered  to  achninister  oaths,  which  said  applica- 
tion shall  contain  a  true  recital  of  eacli  and  cviM-y  inathM- 
of  fact  which  may  be  re(iuirod  by  law  or  by  any  rules 
authorized  by  law  to  be  stated  as  a  prerequisite  to  the 
issuance  of  any  such  passport.  Ulerks  of  United  States 
courts,  agents  of  tlic  Department  of  State,  or  other  Fed- 
eral officials  aniliori/ed,  or  who  may  be  authorized,  to 
take  ])assport  ai)|)rK'at  ions  ami  administer  oaths  thereon, 
shall  colh'ct,  for  all  services  in  connection  therewith,  a 

41_Sec.    4,    .June     l.'i,     1917,    40  42— Sec.    T),    Juno     l.l,     1917,    40 

Stat.   226.  Sl.'it.    22G. 


Espionage  Act  797 

fee  of  one  dollar,  and  no  more,  in  lieu  of  all  fees  pre- 
scribed by  any  statute  of  the  United  States,  whether  the 
application  is  executed  singly,  in  duplicate,  or  in  tripli- 
cate.*' 

§  947.  Punishment  for  false  statements  in  application. 

Whoever  shall  wilfully  and  knowingly  make  any  false 
statement  in  an  application  for  passport  with  intent  to 
induce  or  secure  the  issuance  of  a  passport  under  the 
authority  of  the  United  States,  either  for  his  own  use 
or  the  use  of  another,  contrary  to  the  laws  regulating 
the  issuance  of  passports  or  the  rules  prescribed  pursu- 
ant to  such  laws,  or  whoever  shall  wilfully  and  know- 
ingly use  or  attempt  to  use,  or  furnish  to  another  for 
use,  any  passport  the  issue  of  which  was  secured  in  any 
way  by  reason  of  any  false  statement,  shall  be  fined  not 
more  than  two  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both.** 

§  948.  Illegally  using  passport  of  another.  Whoever 
shall  wilfully  and  knowingly  use,  or  attempt  to  use,  any 
passport  issued  or  designed  for  the  use  of  another  than 
himself,  or  whoever  shall  wilfully  and  knowingly  use 
or  attempt  to  use  any  passport  in  violation  of  the  con- 
ditions or  restrictions  therein  contained,  or  of  the  rules 
prescribed  pursuant  to  the  laws  regulating  the  issuance 
of  passports,  which  said  rules  shall  be  printed  on  the 
passport;  or  whoever  shall  wilfully  and  knowingly  fur- 
nish, dispose  of,  or  deliver  a  passport  to  any  person,  for 
use  by  another  than  the  person  for  whose  use  it  was 
originally  issued  and  designed,  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both.** 

43— Sec.  1,  June  15,  1917,  40     45— See.  3,  June  15,  1917,  40 
Stat.  227.  Stat.  227. 

44— Sec.  2,  June  15,  1917,  40 
Stat.  227. 


798  Criminal  Law 

§  949.  Punishment  for  counterfeiting,  forging,  etc., 
passports.  AMioever  shall  falsely  make,  forge,  counter- 
feit, mutilate,  or  alter,  or  cause  or  procure  to  be  falsely 
made,  forged,  counterfeited,  mutilated,  or  altered  any 
passport  or  instrument  purporting  to  be  a  passport,  with 
intent  to  use  the  same,  or  with  intent  that  the  same  may 
be  used  by  another;  or  whoever  shall  wilfully  or  know- 
ingly use,  or  attempt  to  use,  or  furnish  to  another  for 
use  any  such  false,  forged,  counterfeited,  mutilated,  or 
altered  passport  or  instrument  purporting  to  be  a  pass- 
port, or  any  passport  validly  issued  which  has  become 
void  by  the  occurrence  of  any  condition  therein  pre- 
scribed invalidating  the  same,  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  not  more  than 
five  years  or  both.*^ 

TITLE  X.     ESPIONAGE 

§  950.  Counterfeiting  government  seal.  Whoever  shall 
fraudulently  or  wrongfully  affix  or  impress  the  seal  of 
any  executive  department,  or  of  any  bureau,  commission, 
or  office  of  the  United  States,  to  or  upon  any  certificate, 
instrument,  commission,  document,  or  paper  of  any  de- 
scription; or  whoever,  witli  knowledge  of  its  fraudulent 
character,  shall  with  wrongful  or  fraudulent  intent  use, 
buy,  procure,  sell,  or  transfer  to  another  any  such  certifi- 
cate, instrnment,  commission,  document,  or  paper,  to 
which  or  upon  which  said  seal  has  been  so  fraudulently 
affixed  or  impressed,  shall  be  fined  not  more  than  five 
tliousand  dollars,  or  imprisoned  not  more  than  five  years, 
or  bolli.'*^ 

i^  951.  Punishment  for  forging,  etc.,  any  government 
seal.  Whoever  sli;ill  f.-ilscly  make,  forge,  counterfeit, 
iiiuf  il;ilf.  (•?•  .'liter,  or  cause  or  procure  to  1)0  made,  forged, 

46— Sec.    4,    June     14,     UM7.    4(i  47— Sec.     1,    .hinc    1.'5,    1917,    4(1 

Stat.  227.  Stat.  227. 


Espionage  Act  799 

counterfeited,  mutilated,  or  altered,  or  shall  willingly 
assist  in  falsely  making,  forging,  counterfeiting,  mutilat- 
ing, or  altering,  the  seal  of  any  executive  department, 
or  any  bureau,  commission,  or  office  of  the  United  States, 
or  whoever  shall  knowingly  use,  affix,  or  impress  any 
such  fraudulently  made,  forged,  counterfeited,  mutilated, 
or  altered  seal  to  or  upon  any  certificate,  instrument, 
commission,  document,  or  paper,  of  any  description,  or 
whoever  with  wrongful  or  fraudulent  intent  shall  have 
possession  of  any  such  falsely  made,  forged,  counter- 
feited, mutilated,  or  altered  seal,  knowing  the  same  to 
have  been  so  falsely  made,  forged,  counterfeited,  mu- 
tilated, or  altered,  shall  be  fined  not  more  than  five  thou- 
sand dollars,  or  imprisoned  not  more  than  ten  years,  or 
both.*8 

§  952.  Punishment  for  forging-,  etc.,  naval,  military,  or 
official  passes  or  permits.  Whoever  shall  falsely  make, 
forge,  counterfeit,  alter,  or  tamper  with  any  naval,  mili- 
tary, or  official  pass  or  permit,  issued  by  or  under  the 
authority  of  the  United  States,  or  with  wrongful  or  fraud- 
ulent intent  shall  use  or  have  in  his  possession  any  such 
pass  or  permit,  or  shall  personate  or  falsely  represent 
himself  to  be  or  not  to  be  a  person  to  whom  such  pass 
or  pei-mit  has  been  duly  issued,  or  shall  wilfully  allow 
any  other  person  to  have  or  use  any  such  pass  or  permit, 
issued  for  his  use  alone,  shall  be  fined  not  more  than 
two  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or  both.*^ 

TITLE   XII.     ESPIONAGE 

§  953.  Use  of  mails,  matter  violating  provisions  of  this 
Act  nonmailable.  Eveiy  letter,  writing,  circular,  postal 
card,  picture,  print,  engraving,  photograph,  newspaper, 

48— Sec.  2,    June  15,  1917,  40     49— Sec.  3,  June  15,  1917,  40 
Stat.  228.  Stat.  228. 


800  Criminal  Law 

pamphlet,  book,  or  other  publication,  matter,  or  thing, 
of  any  kind,  in  violation  of  any  of  the  provisions  of  this 
Act  is  hereby  declared  to  be  nonmailable  matter  and 
shall  not  be  conveyed  in  the  mails  or  delivered  from 
any  post  office  or  by  any  letter  carrier:  Provided,  That 
nothing  in  this  Act  shall  be  so  construed  as  to  authorize 
any  person  other  than  an  employe  of  the  Dead  Letter 
Office,  duly  authorized  thereto,  or  other  person  upon  a 
search  warrant  authorized  by  law,  to  open  any  letter 
not  addressed  to  himself.^" 

§954.  Letters,  etc.,  advocating  treason,  resistance  to 
law,  etc.,  nomnailable.  Every  letter,  writing,  circular, 
postal  card,  picture,  print,  engraving,  photograph,  news- 
paper, pamphlet,  book,  or  other  publication,  matter  or 
thing,  of  any  kind,  containing  any  matter  advocating  or 
urging  treason,  insurrection,  or  forcible  resistance  to  any 
law  of  the  United  States,  is  hereby  declared  to  be  non- 
mailable.^^ 

§  955.  Punishment  for  violations.  Whoever  shall  use 
or  attempt  to  use  the  mails  or  Postal  Service  of  the 
United  States  for  the  transmission  of  any  matter  de- 
clared by  this  title  to  be  nonmailable,  shall  be  lined  not 
more  Ihan  five  tiiousand  dollars,  or  imprisoned  not  more 
than  live  yeai's,  or  l)()11i.  Any  ])c'rs()n  violating  any  pro- 
vision of  this  tillc  may  l)e  tried  and  punished  either  in 
the  district  in  wliicli  the  unlawful  matter  or  publication 
was  mailed,  or  to  wliicli  it  was  carried  l)y  mail  for  de- 
livery according  to  the  direction  thereon,  or  in  which  it 
was  caused  to  be  delivered  by  ninil  to  th(^  person  to 
wliom   it   w;is  achli'essed.'^^ 

50_Hcc.     1.    .Juno     1.'5,    1917,    40  .-32—800.    .1,    .Tunc    1.5,    1017,    40 

Htat.  229.  Stat.  230. 

r,l_fiec.    2,    .lunr     IT,,    1917,    4n 
.Stat.  2.30. 


Espionage  Act  801 


TITLE  XIII.     ESPIONAGE 


§956.  General  provisions,  prior  offenses,  etc.,  subject 
to  former  laws.  Oft'euses  committed  and  penalties,  for- 
feitures, or  liabilities  incurred  prior  to  the  taking  effect 
hereof  under  any  law  embraced  in  or  changed,  modified, 
or  repealed  by  any  chapter  of  this  Act  may  be  prosecuted 
and  punished,  and  suits  and  proceedings  for  causes  aris- 
ing or  acts  done  or  committed  prior  to  the  taking  effect 
hereof  may  be  commenced  and  prosecuted,  in  the  same 
manner  and  with  the  same  effect  as  if  this  Act  had  not 
been  passed.^' 

§  957.  Alien  anarchists,  etc.,  excluded  admission.    Be 

it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled. 
That  aliens  who  are  anarchists;  aliens  who  believe  in 
or  advocate  the  overthrow  by  force  or  violence  of  the 
Government  of  the  United  States  or  of  all  f onus  of  law ; 
aliens  who  disbelieve  in  or  are  opposed  to  all  organized 
government;  aliens  who  advocate  or  teach  the  assassina- 
tion of  public  officials;  aliens  who  advocate  or  teach  the 
unlawful  destruction  of  property;  aliens  who  are  mem- 
bers of  or  affiliated  with  any  organization  that  enter- 
tains a  belief  in,  teaches,  or  advocates  the  overthrow  by 
force  or  violence  of  the  Government  of  the  United  States 
or  of  all  forms  of  law,  or  that  entertains  or  teaches  dis- 
belief in  or  opposition  to  all  organized  goveniment,  or 
that  advocates  the  duty,  necessity,  or  propriety  of  the 
unlawful  assaulting  or  killing  of  any  officer  or  officers, 
either  of  specific  individuals  or  of  officers  generally  of 
the  Government  of  the  United  States  or  of  any  other 
organized  government,  because  of  his  or  their  official 
character,  or  that  advocates  or  teaches  the  unlawful  de- 
struction of  property  shall  be  excluded  from  admission 
into  the  United  States.^* 


53- 

—Sec.    3,    June 

15, 

1917, 

40 

54— Sec.  1,  Oct.  16,  1918,  40  Stat, 

Stat. 

231. 
C.  L.— 51 

1012. 

802  Criminal,  Law 

§  958.  Deportation  after  entry  if  member  of  excluded 

classes.  That  any  alien  who,  at  any  time  after  enter- 
ing the  United  States,  is  found  to  have  been  at  the  time 
of  entry,  or  to  have  become  thereafter,  a  member  of  any 
one  of  the  classes  of  aliens  enumerated  in  section  1  of 
this  Act,  shall,  upon  the  warrant  of  the  Secretary  of 
Labor,  be  taken  into  custody  and  deported  in  the  manner 
provided  in  the  Immigration  Act  of  February  5,  1917. 
The  provisions  of  this  section  shall  be  applicable  to  the 
classes  of  aliens  mentioned  in  this  Act  irrespective  of 
the  time  of  their  entiy  into  the  United  States." 

§959.  Punishment   for   returning    after   deportation. 

That  any  alien  who  shall,  after  he  has  been  excluded  and 
deported  or  arrested  and  deported  in  pursuance  of  the 
provisions  of  this  Act,  thereafter  return  to  or  enter  the 
United  States  or  attempt  to  return  to  or  enter  the  United 
States  shall  be  deemed  guilty  of  a  felony,  and  upon  con- 
viction thereof  shall  be  punished  by  imprisonment  for 
a  term  of  not  more  than  five  years;  and  shall,  upon 
termination  of  such  imprisonment  be  taken  into  custody, 
upon  the  warrant  of  the  Secretaiy  of  Labor,  and  de- 
ported in  the  manner  provided  in  the  Immigration  Act 
of  February  5,  lOl?.'*^ 

§  960.  Foreign  travel,  acts  of,  made  unlawful  during 
time  of  wax.  Be  it  enacted  by  the  Senate  and  House 
of  Representatives  of  the  United  States  of  America  in 
Congress  assembled.  That  when  the  United  States  is  at 
war,  if  the  President  shall  find  that  the  public  safety 
r(;quires  that  restrictions  and  prohibitions  in  addition  to 
those  provided  otherwise  than  by  this  Act  be  imposed 
upon  the  departure  of  persons  from  and  their  cntiy  into 
flic  rnitcd  StntoH,  ;ind  shall  make  public  proclamation 

55_Sec.  2,  Oct..  IG,  1018,  40  Rtat.  ,  56— Sec.  3,  Oct.  16,  1918,  40  Stat. 
1012.  1012. 


Espionage  Act  803 

thereof,  it  shall,  until  otherwise  ordered  by  the  Presi- 
dent or  Congress,  be  unlawful — 

(a)  For  any  alien  to  depart  from  or  enter  or  attempt 
to  depart  from  or  enter  the  United  States  except  under 
such  reasonable  rules,  regulations,  and  orders,  and  sub- 
ject to  such  limitations  and  exceptions  as  the  President 
shall  prescribe; 

(b)  For  any  person  to  transport  or  attempt  to  trans- 
port from  or  into  the  United  States  another  person  with 
knowledge  or  reasonable  cause  to  believe  that  the  de- 
parture or  entry  of  such  other  person  is  forbidden  by 
this  Act; 

(c)  For  any  person  knowingly  to  make  any  false  state- 
ments in  an  application  for  permission  to  depart  from 
or  enter  the  United  States  with  intent  to  induce  or  se- 
cure the  granting  of  such  permission  either  for  himself 
or  for  another; 

(d)  For  any  person  knowingly  to  furnish  or  attempt 
to  furnish  or  assist  in  furnishing  to  another  a  permit 
or  evidence  of  permission  to  depart  or  enter  not  issued 
and  designed  for  such  person's  use; 

(e)  For  any  person  knowingly  to  use  or  attempt  to 
use  any  permit  or  evidence  of  permission  to  depart  or 
enter  not  issued  and  designed  for  his  use ; 

(f)  For  any  person  to  forge,  counterfeit,  mutilate,  or 
alter,  or  cause  or  procure  to  be  forged,  counterfeited, 
mutilated,  or  altered,  any  permit  or  evidence  of  per- 
mission to  depart  from  or  enter  the  United  States; 

(g)  For  any  person  knowingly  to  use  or  attempt  to  use 
or  furnish  to  another  for  use  any  false,  forged,  counter- 
feited, mutilated,  or  altered  permit,  or  evidence  or  permis- 
sion or  any  pennit  or  evidence  or  permission  Which, 
though  originally  valid,  has  become  or  been  made  void  or 
invalid.^''^  •     •  .  •-...,•■. 

57— Sec.    1,    May    22,    1918,    40 
Stat.  559. 


804  Criminal  Law 

§  961.  Passports  required  for  all  entries  and  departures 
of  citizens.  That  after  such  proclamation  as  is  provided 
for  by  the  preceding  section  [960]  has  been  made  and 
published  and  while  said  proclamation  is  in  force,  it  shall, 
except  as  otherwise  provided  by  the  President,  and  sub- 
ject to  such  limitations  and  exceptions  as  the  President 
may  authorize  and  prescribe,  be  unlawful  for  any  citizen 
of  the  United  States  to  depart  from  or  enter  or  attempt 
to  depart  from  or  enter  the  United  States  unless  he  bears 
a  valid  passport.^* 

§  962.  Punishment  for  violation.  That  any  person  who 
shall  wilfully  violate  any  of  the  provisions  of  this  Act 
[Sees.  959,  960],  or  of  any  order  or  proclamation  of  the 
President  promulgated,  or  of  any  permit,  rule,  or  regula- 
tion issued  thereunder,  shall,  upon  conviction,  be  fined 
not  more  than  $10,000,  or,  if  a  natural  person,  imprisoned 
for  not  more  than  twenty  years,  or  both;  participates  in 
such  violation  shall  be  punished  by  like  fine  or  imprison- 
ment, or  both;  and  any  vehicle  or  any  vessel,  together 
with  its  or  lioi-  appurtenances,  equipment,  tackle,  apparel, 
and  furniture,  concerned  in  any  such  violation,  shall  be 
forfeited  to  the  United  States.'*^ 

§963.  Meaning  of  terms  "United  States,"  and  "per- 
son." Tliat  the  term  "  Ignited  States"  as  used  in  this  Act 
includes  the  Canal  Zone  and  all  territory  and  waters,  con- 
tinental or  insnlar,  snl\joct  to  Ihc  jurisdiction  of  the 
T'nited  States. 

The  word  "person"  as  used  herein  shall  he  deemed  to 
mean  any  individual,  partnership,  association,  company, 
or  other  unincorj)Oi-ated  liody  of  iii(]ividuals,  oi-  corpora- 
tion, or  body  politic,"" 

4,    May    22,     1918.    40 


58— Sec. 

o 

May    22, 

1918, 

40 

60— .Sec 

Stat.    559. 

Stat.  559. 

59— Sec. 

3, 

May    22, 

1918, 

40 

«t8t.  559. 

Espionage  Act  805 

§  964.  An  Act  to  regulate  further  the  entry  of  aliens 
into  the  United  States.  Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the  United  States  of  America 
in  Congress  assembled,  That  if  the  President  shall  find" 
that  the  public  safety  requires  that  restrictions  and  pro- 
hibitions in  addition  to  those  provided  otherwise  than  by 
this  Act  be  imposed  upon  the  entry  of  aliens  into  the 
United  States,  and  shall  make  public  proclamation  there- 
of, it  shall,  until  otherwise  ordered  by  the  President  or 
Congress,  be  unlawful — 

(a)  For  any  alien  to  enter  or  attempt  to  enter  the 
United  States  except  under  such  reasonable  rules,  regula- 
tions, and  orders,  and  subject  to  such  passport,  vise,  or 
other  limitations  and  exceptions  as  the  President  shall 
prescribe ; 

(b)  For  any  person  to  transport  or  attempt  to  trans- 
port into  the  United  States  another  person  with  knowl- 
edge or  reasonable  cause  to  believe  that  the  entry  of  such 
other  person  is  forbidden  by  this  Act ; 

(c)  For  any  person  knowingly  to  make  any  false 
statement  in  an  application  for  a  passport  or  other  per- 
mission to  enter  the  United  States  with  intent  to  induce 
or  secure  the  granting  of  such  permission,  either  for  him- 
self or  for  another; 

(d)  For  any  person  knowingly  to  furnish  or  attempt  to 
furnish  or  assist  in  furnishing  to  another  a  viseed  pass- 
port or  other  permit  or  evidence  of  permission  to  enter, 
not  issued  and  designed  for  such  other  person's  use; 

(e)  For  any  person  knowingly  to  use  or  attempt  to  use 
any  viseed  passport  or  other  permit  or  evidence  of  per- 
mission to  enter  not  issued  and  designed  for  his  use; 

(f)  For  any  person  to  forge,  counterfeit,  mutilate,  or 
alter,  or  cause  or  procure  to  be  forged,  counterfeited, 
mutilated,  or  altered,  any  passport,  vise  or  other  pennit 
or  evidence  of  pemiission  to  enter  the  United  States ; 

(g)  For  any  person  knowingly  to  use  or  attempt  to  use 
or  furnish  to  another  for  use  any  false,  forged,  counter- 


806  Criminal  Law 

feited,  mutilated,  or  altered  passport,  permit,  or  evidence 
of  permission,  or  any  passport,  permit,  or  evidence  of  per- 
mission which,  though  originally  valid,  has  become  or 
been  made  void  or  invalid. 

Sec.  2.  That  any  person  who  shall  wilfully  violate  any 
of  the  provisions  of  this  Act,  or  of  any  order  or  proclama- 
tion of  the  President  promulgated,  or  of  any  permit,  rule, 
or  regulation  issued  thereunder,  shall,  upon  conviction, 
be  fined  not  more  than  $5,000,  or,  if  a  natural  person,  im- 
prisoned for  not  more  than  five  years,  or  both;  and  the 
officer,  director,  or  agent  of  any  corporation  who  know- 
ingly participates  in  such  violation  shall  be  punished  by 
like  fine  or  imprisonment,  or  both;  and  any  vehicle  or 
any  vessel,  together  with  its  or  her  appurtenances,  equip- 
ment, tackle,  apparel,  and  furniture,  concerned  in  any 
such  violation,  shall  be  forfeited  to  the  United  States. 

Sec.  3.  That  the  term  "United  States"  as  used  in  this 
Act  includes  the  Canal  Zone  and  all  territory  and  waters, 
continental  or  insular,  subject  to  the  jurisdiction  of  the 
United  States. 

The  word  ''person"  as  used  herein  shall  be  deemed  to 
mean  any  individual,  partnership,  association,  company 
or  other  unincorporated  body  of  individuals,  or  corpora- 
tion or  body  politic. 

Sec.  4.  That  in  order  to  carry  out  tlio  purposes  and 
provisions  of  this  act  the  sum  of  $600,000  is  hereby  ap- 
propriated. 

Sec.  5.  That  this  act  sliall  take  effect  upon  the  date 
when  the  provisions  of  this  act  of  congress  approved  the 
22d  day  of  May,  1918,  entitled  ''An  act  to  prevent  in  lime 
of  war  departure  from  and  entry  into  the  United  States, 
contrary  to  the  public  safety,"  shall  cease  to  be  opera- 
tive, and  slmll  coiiliiinc  in  force  and  effect  until  and  in- 
cluding liic  4lli  (lay  of  March,  1921.  (By  lapse  of  time, 
became  law  without  approval  of  President.)  Received  by 
the  President,  Oct.  29, 1919.    41  Stat.  354.  Chap.  104. 


CHAPTER  LX 

OFFENSES  AGAINST  THE  EXISTENCE  OF  THE  GOVERNMENT 

CHAPTER  ONE 

Penal  Code  Act,  March  4,  1909 

§  966.  Treason.  §  971.  Seditious  conspiracy. 

§  967.  Punishment  of  treason.  §  972.  Recruiting  soldiers  or  sailors 

§  968.  Misprision    of    treason.  to  serve  against  the  United 

§  969.  Inciting    or    engaging   in  re-                      States. 

bellion  or  insurrection.  §  973.  Enlistment    to    serve    against 

§  970.  Criminal  correspondence  with  the  United  States. 

foreign   governments. 

§  966.  Treason.  Sec.  1.  Whoever,  owing  allegiance  to 
the  United  States,  levies  war  against  them  or  adheres  to 
their  enemies,  giving  them  aid  and  comfort  within  the 
United  States  or  elsewhere,  is  guilty  of  treason. 

§  967.  Punishment  of  treason.  Sec.  2.  "Whoever  is  con- 
victed of  treason  shall  suffer  death;  or,  at  the  discretion 
of  the  court,  shall  be  imprisoned  not  less  than  five  years 
and  fined  not  less  than  ten  thousand  dollars,  to  be  levied 
on  and  collected  out  of  any  or  all  of  his  property,  real  and 
personal,  of  which  he  was  the  owner  at  the  time  of  com- 
mitting such  treason,  any  sale  or  conveyance  to  the  con- 
trary notwithstanding;  and  every  person  so  convicted  of 
treason  shall,  moreover,  be  incapable  of  holding  any  office 
under  the  United  States. 

§  968.  Misprision  of  treason.  Sec.  3.  Whoever,  owing 
allegiance  to  the  United  States  and  having  knowledge 
of  the  commission  of  any  treason  against  them,  conceals, 
and  does  not,  as  soon  as  may  be,  disclose  and  make  known 
the  same  to  the  President  or  to  some  judge  of  the  United 
States,  or  to  the  governor  or  to  some  judge  or  justice  of  a 

807 


808  Criminal  Law 

particular  state,  is  guilty  of  misprision  of  treason  and 
shall  be  imprisoned  not  more  than  seven  years  and  fined 
not  more  than  one  thousand  dollars. 

§  969.  Inciting-  or  engaging  in  rebellion  or  insurrection. 

Sec.  4.  AVhoever  incites,  sets  on  foot,  assists,  or  engages 
in  any  rebellion  or  insurrection  against  the  authority  of 
the  United  States  or  the  laws  thereof,  or  gives  aid  or 
comfort  thereto,  shall  be  imprisoned  not  more  than  ten 
years,  or  fined  not  more  than  ten  thousand  dollars,  or 
both;  and  shall  moreover,  be  incapable  of  holding  any 
office  under  the  United  States. 

§  970.  Criminal  correspondence  with  foreign  govern- 
ments. Sec.  5.  Every  citizen  of  the  United  States, 
whether  actually  resident  or  abiding  within  the  same,  or 
in  any  place  subject  to  the  jurisdiction  thereof,  or  in  any 
foreign  country,  without  the  permission  or  authority  of 
the  government,  directly  or  indirectly,  commences  or  car- 
ries on  any  verbal  or  written  correspondence  or  inter- 
course with  any  foreign  government  or  any  officer  or 
agent  thereof,  willi  an  intent  to  inlhience  the  measures  or 
conduct  of  any  foreign  government  or  of  any  officer  or 
agent  thereof,  in  relation  to  any  disputes  or  controversies 
witli  the  I'liited  States,  or  to  defeat  the  measures  of  the 
government  ol'  the  rnitcd  Sinlcs;  and  every  person,  be- 
ing a  citizen  of  or  resident  witliin  llic  United  States  or  in 
any  place  subject  to  tlu;  jui'isdiction  tlieroof,  and  not  duly 
untlioi-izcd,  counsels,  advises,  oi- assists  in  any  such  corre- 
spondence with  sncli  intent,  shall  he  lined  not  nioi'e  than 
five  thousand  dollnis  and  imprisoned  not  more  than  three 
years;  but  nothing  in  this  section  sliall  be  construed  to 
a)»ridge  the  I'iglit  of  a  citizen  to  ajjply,  himself  or  his 
agent,  to  any  foreign  govermneiil  oi-  tlu'  agents  thereof 
for  redress  of  any  injuiy  which  he  may  have  sustained 
fi'om  sucli  govei'innent  or  aiiv  ol"  its  agents  or  subjects. 


Offenses  Against  Existence  of  Government        809 

§  971.  Seditious  conspiracy.  Sec.  6.  If  two  or  more  per- 
sons in  any  state  or  territory,  or  in  any  place  subject  to 
the  jurisdiction  of  the  United  States,  conspire  to  over- 
throw, put  down,  or  to  destroy  by  force  the  Government 
of  the  United  States,  or  to  levy  war  against  them,  or  to 
oppose  by  force  the  authority  thereof,  or  by  force  to  pre- 
vent, hinder,  or  delay  the  execution  of  any  law  of  the 
United  States,  or  by  force  to  seize,  take,  or  possess  any 
property  of  the  United  States  contrary  to  the  authority 
thereof,  shall  each  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  six  years,  or  both. 

§  972.  Recruiting  soldiers  or  sailors  to  serve  against 
the  United  States.  Sec.  7.  Whoever  recruits  soldiers  or 
sailors  within  the  United  States,  or  in  any  place  subject 
to  the  jurisdiction  thereof,  to  engage  in  armed  hostility 
against  the  same,  or  opens  within  the  United  States,  or  in 
any  place  subject  to  the  jurisdiction  thereof,  a  recruiting- 
station  for  the  enlistment  of  such  soldiers  or  sailors  to 
serve  in  any  manner  in  armed  hostility  against  the 
Ignited  States,  shall  be  fined  not  more  than  one  thousand 
dollars  and  imprisoned  not  more  than  five  years. 

§  973.  Enlistment  to  serve  against  the  United  States. 
Sec.  8.  Every  person  enlisted  or  engaged  within  the 
United  States  or  in  any  place  subject  to  the  jurisdiction 
thereof,  with  intent  to  serve  in  armed  hostility  against 
the  United  States,  shall  be  fined  one  hundred  dollars  and 
imprisoned  not  more  than  three  years. 


CHAPTER  LXI 

OFFENSES  AGAINST  THE  OPEEATIONS  OF  THE  GOVEENISIENT 


CHAPTER  FOUR 


Penal  Code,  Act  March  4,  1909 


§    975.  Forgery    of    letters    patent.       §    993. 
§    976.  Forging  bids,  public  records, 

etc. 
§    977.  Forging     deeds,     powers     of       §    994. 

attorney,  etc. 
§    978.  Having     forged     papers     in 

possession.  §    995. 

§    979.  False  acknowledgments. 
§    980.  Falsely     pretending     to     be       §    996. 

United  States   officer. 
§    981.  False  personation  of  holder      §    997. 

of  public  stock. 
§    982.  False  demand  on  fraudulent       §    998. 

power  of  attorney. 
§    983.  Making   or  presenting   false 

claims.  '  §    999. 

§    984.  Embezzling  arms,  stores,  etc. 
8    985.  Conspiracy  to  commit  offense 

against  the  United  States;       §  1000. 

all  parties  liable  for  acts 

of  one.  §  1001. 

§    986.  Delaying  or  defrauding  cap-       §  1002. 

tor    of    claimant,    etc.,    of 

prize    property.  §  1003. 

S    987.  Bribery    of    United    States 

officer.  §1004. 

§    988.  Unlawfully   taking  or   using 

papers   relating  to  claims. 
I    989.  Persons    interested     not     to 

act  as  agents  of  tho  Gov-       §  1005. 

ernmcnt. 
§    990.  i:nticing  doscrtions  from  tho       §  1006. 

military  or  naval  sorvico.  §  1007. 

i    991.  Enticing  away   workmen. 
I    902.  Injurios      to      fortifications,       §  1008. 

lirirhor  flofonscs,  etc. 

Sin 


Unlawfully  entering  upon 
military  reservation,  fort, 
etc. 

Robbery  or  larceny  of  per- 
sonal property  of  the 
United    States. 

Embezzling,  stealing,  etc., 
public  property. 

Receivers,  etc.,  of  stolen 
public  property. 

Timber  depredations  on  pub- 
lic lands. 

Timber,  etc.,  depredations 
on  Indian  and  other  reser- 
vations. 

Boxing,  etc.,  timber  on  pub- 
lic lands  for  turpentine, 
etc. 

Setting  fire  to  timber  on 
public  lands. 

Failing    to    extinguish    fires. 

Fines  to  be  paid  into  school 
fund. 

Trespassing  on  Bull  Run  Na- 
tional Forest,  Oregon. 

Breaking  fence  or  gate  in- 
closing reserved  lands,  or 
driving  or  permitting  live 
stock   to   enter   upon. 

Injuring  or  removing  posts 
or  monuments. 

Interrupt ing  surveys. 

Agreement  to  prevent  bids 
at  sale  of  lands. 

Injurios  to  United  States 
telegraph,  etc.,  lines. 


Offenses  Against  Operation  of  Govenment     811 


§  1009.  Counterfeiting  weather  fore-      §  1022. 
casts. 

§  1010.  Interfering    with    employees      §  1023. 
of  Bureau  of  Animal  In- 
dustry. 

§  1011.  Forgery  of  certificate  of  en- 
try. 

§  1012.  Concealment    of    destruction       §  1024. 
of  invoices,  etc. 

§  1013.  Eesisting      revenue      officer,       §  1025. 
rescuing      or      destroying 
seized  property. 

§  1014.  Falsely    assuming    to    be    a       §  1026. 
revenue    officer. 

§  1015.  Offering  presents  to  revenue 

officer.  §  1027. 

§  1016.  Admitting     merchandise     to       §  1028. 
entry  for  less  than  legal 
duty.  §  1029. 

§  1017.  Securing  entry  of  merchan- 
dise by  false  samples,  etc.       §  1030. 

§  1018.  False  certification  by  consu- 
lar officer. 

§  1019.  Taking  seized  property  from       §  1031. 
custody  of  revenue  officer. 

§  1020.  Forging    or    altering    ship 's 

papers     or     custom-house       §  1032. 
documents. 

§  1021.  Forging     military     bounty- 
land  warrant,  etc. 


Forging,  etc.,  certificate  of 
citizenship. 

Engraving,  etc.,  plate  for 
printing  or  photographing, 
selling,  or  bringing  into 
United  States,  etc.,  cer- 
tificate   of    citizenship. 

False  personation,  etc.,  in 
procuring    naturalization. 

Using  false  certificate  of 
citizenship,  or  denying 
citizenship,  etc. 

Using  false  certificate,  etc., 
as  evidence  of  right  to 
vote,  etc. 

Falsely  claiming  citizenship. 

Taking  false  oath  in  natural- 
ization proceedings. 

Provisions  applicable  to  all 
courts    of    naturalization. 

Shanghaiing  and  falsely  in- 
ducing person  intoxicated 
to  go  on  vessel  prohibited. 

Corporations,  etc.,  not  to 
contribute  money  for  po- 
litical elections,  etc. 

Hunting  birds,  or  taking 
their  eggs  from  breeding 
grounds,  prohibited. 


§975.  Forgery  of  letters  patent.  Sec.  27.  "Wlioever 
shall  falsely  make,  forge,  counterfeit,  or  alter  any  letters 
patent  granted  or  purporting  to  have  been  granted  by  the 
President  of  the  United  States;  or  whoever  shall  pass, 
utter,  or  publish,  or  attempt  to  pass,  utter,  or  publish  as 
genuine,  any  such  forged,  counterfeited,  or  falsely  altered 
letters  patent,  knowing  the  same  to  be  forged,  counter- 
feited, or  falsely  altered,  shall  be  fined  not  more  than  five 
thousand  dollars,  and  imprisoned  not  more  than  ten  years. 

§  976.  Forging  bids,  public  records,  etc.  Sec.  28.  Who- 
ever shall  falsely  make,  forge,  or  counterfeit,  or  cause 
or  procure  to  be  falsely  made,  altered,  forged,  or  coun- 


812  Criminal  Law 

terfeited,  or  willingly  aid,  or  assist  in  the  false  making, 
altering,  forging,  or  counterfeiting,  any  bond,  bid,  pro- 
posal, contract,  guarantee,  security,  official  bond,  public 
record,  affidavit,  or  other  writing  for  the  purpose  of  de- 
frauding the  United  States;  or  shall  utter  or  publish  as 
true,  or  cause  to  be  uttered  or  published  as  true,  or  have 
in  his  possession  with  the  intent  to  utter  or  publish  as 
true,  any  such  false,  forged,  altered,  or  counterfeited 
bond,  bid,  proposal,  contract,  guarantee,  security,  official 
bond,  public  record,  affidavit,  or  other  writing,  for  the 
purpose  of  defrauding  the  United  States,  knowing  the 
same  to  be  false,  forged,  altered,  or  counterfeited;  or  shall 
transmit  to,  or  present  at,  or  cause  or  procure  to  be  trans- 
mitted to,  or  presented  at,  the  office  of  any  officer  of  the 
United  States,  any  such  false,  forged,  altered,  or  counter- 
feited bond,  bid,  proposal,  contract,  guarantee,  security, 
official  bond,  public  record,  affidavit,  or  other  w^riting, 
knowing  the  same  to  be  false,  forged,  altered,  or  counter- 
feited, for  the  purpose  of  defrauding  the  United  States, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  ten  years,  or  both. 

§  977.  Forging  deeds,  powers  of  attorney,  etc.  Sec. 
29.  Whoever  shall  falsely  make,  alter,  forge,  or  counter- 
feit, or  cause  to  procure  to  be  falsely  made,  altered, 
forged,  or  counterfeited,  or  willingly  aid,  or  assist  in  the 
false  making,  altering,  forging,  or  counterfeiting,  any 
(h'V(],  power  of  attorney,  order,  certificate,  receipt,  con- 
tract, oi-  otlier  writing,  for  the  pni*poso  of  obtaining  or  re- 
ceiving or  of  enal)]ing  any  other  person,  either  directly  or 
indirectly,  to  obtain  or  receive  from  the  United  States,  or 
any  of  their  officers  or  agents,  any  sum  of  money;  or  who- 
ever shall  utter  or  publish  as  true,  or  cause  to  be  uttered 
or  published  as  true,  any  such  false,  forged,  altered,  or 
counterfeited  deed,  power  of  attorney,  order,  certificate, 
receipt,  contract,  or  other  writing,  with  intent  to  defraud 


Offenses  Against  Operation  of  Govenment      813 

the  United  States,  knowing  the  same  to  be  false,  altered, 
forged,  or  counterfeited;  or  whoever  shall  transmit  to, 
or  present  at,  or  cause  or  procure  to  be  transmitted  to,  or 
presented  at,  any  office  or  officer  of  the  Government  of  the 
United  States,  any  deed,  power  of  attorney,  order,  certifi- 
cate, receipt,  contract,  or  other  Avriting,  in  support  of,  or 
in  relation  to  any  account  or  claim,  with  intent  to  defraud 
the  United  States,  knowing  the  same  to  be  false,  altered, 
forged,  or  counterfeited,  shall  be  fined  not  more  than  one 
thousand  dollars  and  imprisoned  not  more  than  ten  years. 

§  978.  Having  forged  papers  in  possession.  Sec.  30. 
Whoever,  knowingly  and  with  intent  to  defraud  the 
United  States,  shall  have  in  his  possession  any  false, 
altered,  forged,  or  counterfeited  deed,  power  of  attorney, 
order,  certificate,  receipt,  contract,  or  other  writing,  for 
the  purpose  of  enabling  another  to  obtain  from  the  United 
States,  or  from  any  officer  or  agent  thereof,  any  sum  of 
money,  shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  five  years. 

§  979.  False  acknowledgments.  Sec.  31.  Wlioever,  be- 
ing an  officer  authorized  to  administer  oaths  or  to  take 
and  certify  acknowledgments,  shall  knowingly  make  any 
false  acknowledgment,  certificate,  or  statement  concern- 
ing the  appearance  before  him  or  the  taking  of  an  oath 
or  affirmation  by  any  person  with  respect  to  any  proposal, 
contract,  bond,  undertaking,  or  other  matter,  submitted 
to,  made  with,  or  taken  on  behalf  of,  the  United  States, 
and  concerning  which  an  oath  or  affirmation  is  required 
by  law  or  regulation  made  in  pursuance  of  law,  or  with 
respect  to  the  financial  standing  of  any  principal,  surety, 
or  other  party  to  any  such  proposal,  contract,  bond,  un- 
dertaking, or  other  instrument,  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both. 


814  Criminal  Law 

§  980.  Falsely  pretending  to  be  United  States  officer. 
Sec.  32.  Whoever,  "svitli  intent  to  defraud  either  the 
United  States  or  any  person,  shall  falsely  assume  or  pre- 
tend to  be  an  officer  or  employee  acting  under  the  author- 
ity of  the  United  States,  or  any  department,  or  any  officer 
of  the  government  thereof,  and  shall  take  upon  himself 
to  act  as  such,  or  shall  in  such  pretended  character  de- 
mand or  obtain  from  any  person  or  from  the  United 
States  or  any  department;  or  any  officer  of  the  govern- 
ment thereof,  any  money,  paper,  document,  or  other  valu- 
able thing,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  three  years,  or  both. 

§  981.  False  personation  of  holder  of  public  stock.  Sec. 
33.  Whoever  shall  falsely  personate  any  true  and  lawful 
holder  of  any  share  or  sum  in  the  public  stocks  or  debt  of 
the  United  States,  or  any  person  entitled  to  any  annuity, 
dividend,  pension,  prize  money,  wages,  or  other  debt  due 
from  the  United  States,  and  under  color  of  such  false 
personation,  shall  transfer  or  endeavor  to  transfer  such 
))uljlic  stock  or  any  part  thereof,  or  shall  receive  or  en- 
deavor to  receive  the  money  of  such  true  and  lawful 
holder  thereof,  or  the  money  of  any  person  really  entitled 
to  receive  such  annuity,  dividend,  pension,  prize  money, 
wages,  or  other  debt,  shall  be  lined  not  more  than  live 
thousand  dollars  and  ini])risoned  not  more  than  ten  years. 

§  982.  False  demand  on  fraudulent  power  of  attorney. 
Sec.  34.  Whoever  shall  knowingly  or  fraudulently  de- 
mand or  endeavor  to  obtain  any  sliare  or  sum  in  the  public 
stocks  of  the  United  States,  or  to  have  any  part  thereof 
Iransforrcd,  assigned,  sold,  or  conveyed,  or  to  have  any 
aniiuily,  dividend,  pension,  pri/c  money,  wages,  or  other 
debt  due  from  the  I'liitod  Slates,  or  any  part  thereof,  re- 
ceived, or  paid  by  virtue  of  any  false,  forged,  or  counter- 
feited power  of  attorney,  authority  or  instrument,  shall 
be  flnod  not  more  than  five  thousand  dollars  and  impris- 
oned not  more  than  len  vears. 


Offenses  Against  Operation  of  Govenment      815 

§  983.  Amended.  Sec.  35.  That  whoever  shall  make  or 
cause  to  be  made  or  present  or  cause  to  be  presented, 
for  payment  or  approval,  to  or  by  any  person  or  officer  in 
the  civil,  military  or  naval  service  of  the  United  States,  or 
any  department  thereof,  or  any  corporation  in  which  the 
United  States  of  America  is  a  stockholder,  any  claim  upon 
or  against  the  Government  of  the  United  States,  or  any 
department  or  officer  thereof,  or  any  corporation  in  which 
the  United  States  is  a  stockholder,  knowing  the  same  to 
be  false,  fictitious,  or  fraudulent ;  or  whoever  for  the  pur- 
pose of  obtaining  or  aiding  to  obtain  the  payment  or  ap- 
proval of  such  claim,  or  with  the  purpose  and  with  the  in- 
tent of  cheating  and  swindling  or  defrauding  the  Govern- 
ment of  the  United  States  or  any  department  thereof,  or 
any  corporation  in  which  the  Government  of  the  United 
States  is  a  stockholder,  shall  knowingly  and  wilfully 
falsify  or  conceal  or  cover  up  by  any  trick,  scheme,  or 
devise  a  material  fact,  or  make  or  cause  to  be  made  any 
false  or  fraudulent  statements  or  representations,  or  make 
or  use  or  cause  to  be  made  or  used,  any  false  bill,  receipt, 
voucher,  roll  or  account,  claim,  certificate,  affidavit  or 
deposition,  knowing  the  same  contains  any  fraudulent  or 
fictitious  statement  or  entry,  or  whoever  shall  take  and 
carry  away  for  his  own  use,  or  for  the  use  of  another, 
with  intent  to  steal  or  purloin,  any  personal  property  of 
the  United  States,  or  any  branch  or  department  thereof, 
or  any  corporation  in  which  the  United  States  of  America 
is  a  stockholder;  or  whoever  shall  enter  into  any  agree- 
ment, combination  or  conspiracy  to  defraud  the  Govern- 
ment of  the  United  States,  or  any  department  or  officer 
thereof,  or  any  corporation  in  which  the  United  States 
of  America  is  a  stockholder,  by  obtaining  or  aiding  to 
obtain  the  payment  or  allowance  of  any  false  or  fraudu- 
lent claim;  and  whoever  having  charge,  possession,  cus- 
tody or  control  any  money  or  other  public  property  used 
or  to  be  used  in  the  military  or  naval  service  with  intent 
to  defraud  the  United  States,  or  any  department  thereof, 


816  Ceiminal  LA^w 

or  any  corporation  in  which  the  United  States  of  America 
is  a  stockholder,  or  wilfully  to  conceal  such  money  or  other 
property,  or  shall  deliver  or  cause  to  be  delivered  to  any 
person  having  authority  to  receive  the  same  any  amount 
of  such  money  or  other  property  less  than  that  for  which 
is  received  a  certificate,  or  took  a  receipt;  or  whoever,  be- 
ing authorized   to  make   or   deliver   any   certificate   or 
voucher,  receipt  or  other  paper  certifying  the  receipt  of 
arms,  ammunition,  provisions,  clothing,  or  other  property 
so  used  or  to  be  used,  shall  make  or  deliver  the  same  to 
any  other  person  without  a  full  knowledge  of  the  truth 
of  the  facts  stated  therein  and  with  intent  to  defraud  the 
United  States,  or  any  department  thereof,  or  any  corpo- 
ration in  which  the  United  States  of  America  is  a  stock- 
holder, shall  be  fined  not  more  than  $10,000  or  imprisoned 
not  more  than  ten  years,  or  both.    And  whoever  shall  pur- 
chase, or  receive  in  pledge  from  any  person  any  arms, 
equipment,  ammunition,  clothing,  military  stores  or  other 
property  furnished  by  the  United  States,  under  a  clothing 
allowance  or  otherwise,  to  any  soldier,  sailor,  officer,  ca- 
det, or  midshipman,  in  the  military  or  naval  service  of 
the  United  States,  or  of  the  national  guard  or  naval 
militia,  or  any  person  accompanying,  serving  or  retained 
with  the  land  or  naval  forces  and  subject  to  military  or 
naval  law,  having  knowledge  or  reason  to  believe  that 
tlie  property  has  been  taken  from  the  possession  of  the 
I'liitcd  States  or  furnished  by  the  United  States  under 
such  allowiiiice,  shall  Ix'  fined  not  in«)r('  than  $.■)()(),  or  ini- 
pi-isonc(i  not  nioi-c  iji;iii  two  years  or  bolh.^ 

§984.  Embezzling  arms,  stores,  etc.  Sec.  ^)(;.  Whoever 
shall  steal,  embezzle,  or  knowingly  apply  to  his  own  use, 
or  unlawfully  sell,  convey,  or  dispose  of,  any  ordnance, 
arms,  ammunition,  clothing,  subsistence,  stores,  money, 

1— Art  Oct.  12:5,  1918,  40  Stfit. 
at  large.  Amendment  to  ('riininnl 
Code,    Sec.    35. 


Offenses  Against  Opekation  of  Govenment      817 

or  other  property  of  the  United  States,  furnished  or  to 
be  used  for  the  military  or  naval  service,  shall  be  pun- 
ished as  prescribed  in  the  preceding  section  [980]. 

§  985.  Conspiracy  to  commit  offense  ag-ainst  the  United 
States — All  parties  liable  for  acts  of  one.  Sec.  37.  If  two 
or  more  persons  conspire  either  to  commit  any  offense 
against  the  United  States  or  to  defraud  the  United  States 
in  any  manner  or  for  any  purpose,  and  one  or  more  of 
such  parties  do  any  act  to  effect  the  object  of  the  con- 
spiracy, each  of  the  parties  of  such  conspiracy  shall  be 
fined  not  more  than  ten  thousand  dollars,  or  imprisoned 
not  more  than  two  years,  or  both. 

§  986.  Delaying  or  defrauding  captor  of  claimant,  etc., 
of  prize  property.  Sec.  38.  Whoever  shall  wilfully  do,  or 
aid  or  advise  in  the  doing,  of  any  act  relating  to  the 
bringing  in,  custody,  preservation,  sale,  or  other  disposi- 
tion of  any  property  captured  as  prize,  or  relating  to  any 
documents  or  papers  connected  with  the  property,  or  to 
any  deposition  or  other  document  or  paper  connected 
with  the  proceedings,  with  intent  to  defraud,  delay,  or 
injure  the  United  States  or  any  captor  or  claimant  of 
such  property,  shall  be  fined  not  more  than  ten  thousand 
dollars,  or  imprisoned  not  more  than  five  years  or  both. 

§  987.  Bribery  of  United  States  officer.  Sec.  39.  Who- 
ever shall  promise,  offer,  or  give,  or  cause  or  procure  to  be 
promised,  offered,  or  given,  any  money  or  other  thing  of 
value,  or  shall  make  or  tender  any  contract,  undertaking, 
obligation,  gratuity,  or  security  for  the  payment  of 
money,  or  for  the  delivery  or  conveyance  of  anything  of 
value,  to  any  officer  of  the  United  States,  or  to  any  per- 
son acting  for  or  on  behalf  of  the  United  States  in  any 
official  function,  under  or  by  authority  of  any  depart- 
ment or  office  of  the  government  thereof,  or  to  any  officer 
or  person  acting  for  or  on  behalf  of  either  house  of  con- 

C.  L.— 52 


818  Criminal  Law 

gress,  or  of  any  committee  of  either  house,  or  both  houses 
thereof,  with  intent  to  influence  his  decision  or  action  on 
any  question,  matter,  cause,  or  proceeding  which  may  at 
any  time  be  pending,  or  which  may  by  law  be  brought 
before  him  in  his  official  capacity,  or  in  his  place  of  trust 
or  profit,  or  with  intent  to  influence  him  to  commit  or  aid 
in  committing,  or  to  collude  in,  or  allow,  any  fraud,  or 
make  opportunity  for  the  commission  of  any  fraud,  on  the 
United  States,  or  to  induce  him  to  do  or  omit  to  do  any 
act  in  violation  of  his  lawful  duty,  shall  be  fined  not  more 
than  three  times  the  amount  of  money  or  value  of  the 
thing  so  offered,  promised,  given,  made,  or  tendered,  or 
caused  or  procured  to  be  so  offered,  promised,  given, 
made,  or  tendered,  and  imprisoned  not  more  than  three 
years. 

§  988.  Unlawfully  taking  or  using  papers  relating  to 
claims.  See.  40.  AVhoever  shall  take  and  carry  away, 
without  authority  from  the  United  States,  from  the  place 
where  it  has  been  filed,  lodged,  or  deposited,  or  where  it 
may  for  the  time  being  actually  be  kept  by  authority  of 
the  United  States,  any  certificate,  affidavit,  deposition, 
written  statement  of  facts,  power  of  attorney,  receipt, 
voucher,  assignment,  or  other  document,  record,  file,  or 
paper,  prepared,  fitted,  or  intended  to  be  used  or  pre- 
sented in  order  to  procure  the  payment  of  money  from  or 
by  the  United  States,  or  any  officer  or  agent  thereof,  or 
the  allowance,  or  payment  of  the  whole  or  any  part  of  any 
claim,  account,  or  demand  against  the  United  States, 
wlietiier  the  sMme  has  or  has  not  already  been  so  used 
or  ])i-('S('iitc(l,  .-iikI  wlicthci-  sucli  chiim,  account,  or  de- 
iii:iii(l,  or  ;iii\'  pai't  thereof  has  or  has  not  already  been 
allowed  or  paid;  or  wlioever  shall  present,  use,  or  attempt 
to  use,  any  such  document,  record,  file,  or  paper  so  taken 
.hh!  cnriicd  away,  in  order  to  procure  the  payment  of  any 
money  from  or  by  tlic  United  States,  or  any  officer  or 
agent  thereof,  or  the  allowance  or  payment  of  the  whole 


Offenses  Against  Operation  of  Govenment     819 

or  any  part  of  any  claim,  account,  or  demand  against  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  ten  years,  or  both. 

§  989.  Persons  interested  not  to  act  as  agents  of  the 
government.  Sec.  41.  No  officer  or  agent  of  any  corpora- 
tion, joint  stock  company,  or  association,  and  no  member 
or  agent  of  any  firm,  or  person  directly  or  indirectly  inter- 
ested in  the  pecuniary  profits  or  contracts  of  such  corpo- 
ration, joint  stock  company,  association,  or  firm,  shall  be 
emploj^ed  or  shall  act  as  an  officer  or  agent  of  the  United 
States  for  the  transaction  of  business  with  such  corpora- 
tion, joint  stock  company,  association,  or  firm.  Whoever 
shall  violate  the  provision  of  this  section  shall  be  fined 
not  more  than  two  thousand  dollars  and  imprisoned  not 
more  than  two  years. 

§  990.  Enticing  desertions  from  the  military  or  naval 
service.  Sec.  42.  Whoever  shall  entice  or  procure,  or  at- 
tempt or  endeavor  to  entice  or  procure,  any  soldier  in  the 
military  service,  or  any  seaman  or  other  person  in  the 
naval  service  of  the  United  States,  or  who  has  been  re- 
cruited for  such  service,  to  desert  therefrom,  or  shall 
aid  any  such  soldier,  seaman,  or  other  person  in  desert- 
ing or  in  attempting  to  desert  from  such  service;  or 
whoever  shall  harbor,  conceal,  jjrotect,  or  assist  any  such 
soldier,  seaman,  or  other  person  who  may  have  deserted 
from  such  service,  knowing  him  to  have  deserted  there- 
from, or  shall  refuse  to  give  up  and  deliver  such  soldier, 
seaman,  or  other  person  on  the  demand  of  any  officer 
authorized  to  receive  him,  shall  be  imprisoned  not  more 
than  three  years  and  fined  not  more  than  two  thousand 
dollars. 

§  991.  Enticing  away  workmen.  Sec.  43.  Whoever 
shall  procure  or  entice  any  artificer  or  workman  retained 
or  employed  in  any  arsenal  or  araiory,  to  depart  from  the 


820  Criminal  Law 

same  during  the  continuaiice  of  his  engagement,  or  to 
avoid  or  break  his  contract  with  the  United  States;  or 
whoever,  after  due  notice  of  the  engagement  of  such 
workman  or  artificer,  during  the  continuance  of  such 
engagement,  shall  retain,  hire,  or  in  anywise  emjDloy,  har- 
bor, or  conceal  such  artificer  or  workman,  shall  be  fined 
not  more  than  fifty  dollars  or  imprisoned  not  more  than 
three  months,  or  both. 

§  992.  Injuries  to  fortifications,  harbor  defenses,  etc. 
Sec.  44.  AVhoever  shall  wilfully  trespass  upon,  injure, 
or  destroy  any  of  the  works  or  property  or  material  of 
any  submarine  mine  or  torpedo,  or  fortification  or  har- 
bor-defense system  owned  or  constructed  or  in  process 
of  construction  by  the  United  States,  or  shall  wilfully 
interfere  with  the  operation  or  use  of  any  such  submarine 
mine,  torpedo,  fortification,  or  harbor-defense  system, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both. 

§  993.  Unlawfully  entering  upon  military  reservation, 
fort,  etc.  Sec.  45.  Whoever  sliall  go  upon  any  military 
reservation,  army  post,  fort  or  arsenal,  for  any  purpose 
prohibited  by  law  or  military  regulation  made  in  pursu- 
ance of  law,  or  whoever  shall  re-enter  or  be  found  within 
any  such  reservation,  post,  fort,  or  arsenal,  after  having 
been  removed  tlierofrom  or  ordered  not  to  re-enter  by  any 
officer  or  person  in  command  or  charge  thereof,  shall  be 
fined  not  more  tlian  five  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both. 

<Sn  994.  Robbery  or  larceny  of  personal  property  of  the 
United  States.  Sec.  40.  Whoever  shall  rob  nnollier  of  any 
kind  or  dcsciijjlion  of  personal  property  belonging  to  the 
United  States,  or  sliall  feloniously  take  and  carry  away 
the  same,  shall  be  fined  not  more  than  five  thousand  dol- 
lars, or  iitiprisoncd  not  more  than  ten  years,  or  bofli. 


Offenses  Against  Operation  of  Govenment      821 

§  995.  Embezzling,  stealing",  etc.,  public  property.   Sec. 

47.  Whoever  shall  embezzle,  steal,  or  purloin  any  money, 
property,  record,  voucher,  or  valuable  thing  whatever,  of 
the  moneys,  goods,  chattels,  records,  or  property  of  the 
United  States,  shall  be  fined  not  more  than  five  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  botli. 

§  996.  Receivers,  etc.,  of  stolen  public  property.    Sec. 

48.  Whoever  shall  receive,  conceal,  or  aid  in  concealing, 
or  shall  have  or  retain  in  his  possession  with  intent  to 
convert  to  his  own  use  or  gain,  any  money,  property,  rec- 
ord, voucher,  or  valuable  thing  whatever,  of  the  moneys, 
goods,  chattels,  records,  or  other  property  of  the  United 
States,  which  has  theretofore  been  embezzled,  stolen,  or 
purloined  by  any  other  person,  knowing  the  same  to  have 
been  so  embezzled,  stolen,  or  purloined,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both;  and  such  person  may  be  tried 
either  before  or  after  the  conviction* of  the  principal  of- 
fender. 

§  997.  Timber  depredations  on  public  lands.  Sec.  49. 
Whoever  shall  cut,  or  cause  or  procure  to  be  cut,  or  shall 
wantonly  destroy,  or  cause  to  be  wantonly  destroyed,  any 
timber  growing  on  the  public  lands  of  the  United  States ; 
or  whoever  shall  remove,  or  cause  to  be  removed,  any 
timber  from  said  public  lands,  with  intent  to  export  or 
to  dispose  of  the  same;  or  whoever,  being  the  owner, 
master,  or  consignee  of  any  vessel,  or  the  owner,  director 
or  agent  of  any  railroad,  shall  knowingly  transport  any 
timber  so  cut  or  removed  from  said  lands,  or  lumber  man- 
ufactured therefrom,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year, 
or  both.  Nothing  in  this  section  shall  prevent  any  miner 
or  agriculturist  from  clearing  his  land  in  the  ordinaiy 
working  of  his  mining  claim,  or  in  the  preparation  of  his 
farm  for  tillage,  or  from  taking  the  timber  necessaiy  to 


822  Criminal  Law 

support  his  improvements,  or  the  taking  of  timber  for  the 
use  of  the  United  States.  And  nothing  in  this  section 
shall  interfere  with  or  take  away  any  right,  or  privilege 
under  any  existing  law  of  the  United  States  to  cut  or  re- 
move timber  from  any  public  lands. 

§  998.  Timber,  etc.,  depredations  on  Indian  and  other 
reservations.  Sec.  50.  Whoever  shall  unlawfully  cut,  or 
aid  in  unlawfully  cutting,  or  shall  wantonly  injure  or 
destroy,  or  procure  to  be  wantonly  injured  or  destroyed, 
any  tree,  growing,  standing,  or  being  upon  any  lands  of 
the  United  States  which,  in  pursuance  of  law,  has  been 
reserved  or  purchased  by  the  United  States  for  any 
public  use,  or  upon  any  Indian  reservation  or  lands  bo- 
longing  to  or  occupied  by  any  tribe  of  Indians  under  the 
authority  of  the  United  States,  or  any  Indian  allotment 
while  the  title  to  the  same  shall  be  held  in  trust  by  the 
government,  or  while  the  same  shall  remain  inalienable 
by  the  allottee  without  the  consent  of  the  United  States, 
shall  be  fined  not  more  than  five  hundred  dollars,  or 
imprisoned  not  more  than  one  year,  or  both. 

§  999.  Boxing,  etc.,  timber  on  public  lands  for  turpen- 
tine, etc.  Sec.  51.  AVhoevor  shall  cut,  chip,  choj),  or  box 
any  tree  upon  any  lands  belonging  to  the  United  States, 
or  ujtoji  any  lands  covered  by  or  embraced  in  any  un])cr- 
focted  settlement,  application,  filing,  ontiy,  solrction,  or 
location,  made  under  any  law  of  the  United  States,  for  the 
j)urpos('  of  obtaining  from  such  tree  any  pitch,  turpen- 
tinr,  f)i'  other  substance,  or  shall  knowingly  encourage, 
cause,  i)rocure,  or  aid  in  the  cutting,  chipping,  chopping, 
or  boxing  of  any  such  tree,  or  shall  l)uy,  trade  for,  or  in 
any  manner  acquire  any  pitch,  turpentine,  or  other  sub- 
sfaiicc,  or  any  arlich'  <»i"  ciiiiiniodiiy  made  froni  any  such 
pilfh,  turjx'ntinc,  or  other  substance,  when  he  has  knowl- 
edge that  llif  same  has  been  so  utilawfully  oblaincd  from 


Offenses  Against  Operation  of  Govenment      823 

such  trees,  shall  be  fined  not  more  than  five  hundred  dol- 
lars, or  imprisoned  not  more  than  one  year,  or  both. 

§  1000.  Setting  fire  to  timber  on  public  lands.  Sec.  52. 
Whoever  shall  wilfully  set  on  fire,  or  cause  to  be  set  on 
fire,  any  timber,  underbrush,  or  grass  upon  the  public 
domain,  or  shall  leave  or  suffer  fire  to  burn  unattended 
near  any  timber  or  other  inflammable  material,  shall  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned 
not  more  than  two  years  or  both. 

§  1001.  Failing  to  extinguish  fires.  Sec.  53.  Whoever 
shall  build  a  fire  in  or  near  any  forest,  timber,  or  othei* 
inflammable  material  upon  the  public  domain,  or  upon 
any  Indian  reservation,  or  lands  belonging  to  or  occupied 
by  any  tribe  of  Indians  under  the  authority  of  the  United 
States,  or  upon  any  Indian  allotment  while  the  title  to  the 
same  shall  be  held  in  trust  by  the  government,  or  while 
the  same  shall  remain  inalienable  by  the  allottee  without 
the  consent  of  the  United  States,  shall,  before  leaving  said 
fire,  totally  extinguish  the  same;  and  whoever  shall  fail 
to  do  so  shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  one  year,  or  both. 

§  1002.  Fines  to  be  paid  into  school  fund.  Sec.  54.  In 
all  cases  arising  under  the  two  preceding  sections  [1000, 
1001]  the  fines  collected  shall  be  paid  into  the  public 
school  fund  of  the  county  in  which  the  lands  where  the 
offense  was  committed  are  situated. 

§  1003.  Trespassing  on  BuU  Run  National  Forest,  Ore- 
gon. Sec.  55.  Wlioever,  except  forest  rangers  and  other 
persons  employed  by  the  United  States  to  protect  the  for- 
est, federal  and  state  officers  in  the  discharge  of  their 
duties,  and  the  employees  of  the  water  board  of  the  city 
of  Portland,  State  of  Oregon,  shall  knowingly  trespass 
upon  any  part  of  the  reserve  known  as  Bull  Run  National 


824  Ckimixal  Law 

Forest,  in  the  Cascade  Mountains,  in  the  State  of  Oregon, 
or  shall  enter  thereon  for  the  purpose  of  grazing  stock, 
or  shall  engage  in  grazing  stock  thereon,  or  shall  permit 
stock  of  any  kind  to  graze  thereon,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  more  than 
six  months. 

§  1004.  Breaking  fence  or  g^ate  inclosing  reserved  lands, 
or  driving  or  permitting  live  stock  to  enter  upon.  Sec.  56. 
Whoever  shall  knowingly  and  unlawfully  break,  open,  or 
destroy  any  gate,  fence,  hedge,  or  w^all  inclosing  any 
lands  of  the  United  States  which,  in  pursuance  of  any 
law,  have  been  reserved  or  purchased  by  the  United 
States  for  any  public  use;  or  whoever  shall  drive  any 
cattle,  horses,  hogs,  or  other  live  stock  upon  any  such 
lands  for  the  purpose  of  destroying  the  grass  or  trees 
on  said  lands,  or  where  they  may  destroy  the  said  grass 
or  trees;  or  whoever  shall  knowingly  peniiit  his  cattle, 
horses,  hogs,  or  other  live  stock,  to  enter  through  any 
-such  inclosure  upon  any  such  lands  of  the  United  States, 
where  such  cattle,  horses,  hogs,  or  other  live  stock  may 
or  can  destroy  the  grass,  or  trees  or  other  property  of  the 
United  States  on  the  said  lands,  shall  be  fined  not  more 
than  five  hundred  dollars,  or  imprisoned  not  nioi-e  llinii 
one  year,  or  botli:  Provided,  That  nothing  in  this  section 
shall  be  construed  to  apply  to  unreserved  public  lands. 

§  1005.  Injuring  or  removing  post  or  monuments.  Sec. 
57.  Whoever  sliall  wilfully  (lesti'oy,  deface,  change,  or 
remove  to  another  jjlace  any  section  corner,  quarter-sec- 
tion comer  or  meander  post,  on  any  government  line  of 
survey,  or  sliall  wilfully  cut  down  any  witness  tree  or  any 
tree  blazed  to  mark  the  line  of  a  government  survey,  or 
sliall  wilfully  deface,  change,  or  remove  any  monument  or 
bench  mark  of  any  government  survey,  shall  1)e  (iiiod  not 
mf»re  than  two  hundred  and  fifty  dollars,  or  imprisoned 
not  more  than  six  months,  or  both. 


Offenses  Against  Operation  of  Govenment     825 

§  1006.  Interrupting-  surveys.  Sec.  58.  Whoever  in  any 
manner,  by  threats  or  force,  shall  interrupt,  hinder,  or 
prevent  the  surveying  of  the  public  lands,  or  of  any  pri- 
vate land  claim  which  has  been  or  may  be  confirmed  by 
the  United  States,  by  the  persons  authorized  to  survey 
the  same,  in  conformity  with  the  instructions  of  the  Com- 
missioner of  the  General  Land  Office,  shall  be  fined  not 
more  than  three  thousand  dollars  and  imprisoned  not 
more  than  three  years. 

§  1007.  Agreements  to  prevent  bids  at  sale  of  lands. 
Sec.  59.  Wlioever,  before  or  at  the  time  of  the  public  sale 
of  any  of  the  lands  of  the  United  States,  shall  bargain, 
contract,  or  agree,  or  attempt  to  bargain,  contract,  or 
agree  with  any  other  person  that  the  last-named  person 
shall  not  bid  upon  or  purchase  the  land  so  offered  for  sale, 
or  any  parcel  thereof;  or  whoever  by  intimidation,  com- 
bination, or  unfair  management  shall  hinder  or  prevent, 
or  attempt  to  hinder  or  prevent,  any  person  from  bidding 
upon  or  purchasing  any  tract  of  land  so  offered  for  sale, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both. 

§  1008.  Injuries  to  United  States  telegraph,  etc.,  lines. 
Sec.  60.  Whoever  shall  wilfully  or  maliciously  injure  or 
destroy  any  of  the  works,  property,  or  material  of  any 
telegraph,  telephone,  or  cable  line,  or  system,  operated 
or  controlled  by  the  United  States,  whether  constructed, 
or  in  process  of  construction,  or  shall  wilfully  or  mali- 
ciously interfere  in  any  way  with  the  working  or  use  of 
any  such  line,  or  system,  or  shall  wilfully  or  maliciously 
obstruct,  hinder,  or  delay  the  transmission  of  any  com- 
munication over  any  such  line,  or  system,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  three  years  or  both. 

§  1009.  Counterfeiting"  weather  forecast.  Sec.  61. 
Whoever  shall  knowingly  issue  or  publish  any  counter- 


826  Criminal  Law 

feit  weather  forecast  or  warning  of  weather  conditions 
falsely  representing  such  forecast  or  warning  to  have 
been  issued  or  published  by  the  Weather  Bureau,  United 
States  Signal  Service,  or  other  branch  of  the  government 
service,  shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  ninety  days,  or  both. 

§  1010.  Interfering  with  employees  of  Bureau  of  Ani- 
mal Industry:  penalty.  Sec.  62.  Whoever  shall  forcibly 
assault,  resist,  oppose,  prevent,  impede,  or  interfere  with 
any  officer  or  employee  of  the  Bureau  of  Animal  Industry 
of  the  Department  of  Agriculture  in  the  execution  of 
his  duties,  or  on  account  of  the  execution  of  his  duties, 
shall  be  fined  not  more  than  one  thousand  dollars,  or 
imprisoned  not  more  than  one  year,  or  both;  and  who- 
ever shall  use  any  deadly  or  dangerous  weapon  in  re- 
sisting any  officer  or  employee  of  the  Bureau  of  Animal 
Industrj^  of  the  Department  of  Agriculture  in  the  exe- 
cution of  his  duties,  with  intent  to  commit  a  bodily  in- 
jury upon  him,  or  to  deter  or  prevent  him  from  dis- 
charging his  duties  or  on  account  of  the  performance 
of  his  duties,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 

§  1011.  Forgery  of  certificate  of  entry.  Sec.  63.  Who- 
ever .shall  forge,  cuunit'riV'it,  or  falsely  alter  any  certifi- 
cate of  entry  made  or  required  to  be  made  in  pursuance 
of  law  l)y  any  officer  of  the  customs,  or  shall  use  any 
such  forged,  counterfeited,  or  falsely  allored  certificate, 
knowing  the  .same  to  be  forged,  t'oniitcrfciled,  or  falsely 
altered,  shall  be  fined  not  more  than  ten  llionsand  dollars 
aiKJ  imprisoned  not  more  llinii  llii'ee  years. 

§  1012.  Concealment  or  destruction  of  invoices,  etc. 
Sec.  64.  Whoever  sliall  wilfully  conceal  or  destroy  any 
invoice,  book,  or  paper  relating  to  any  merchandise  liable 
to  duty,  wliieli   has  ])een  or  may  ))e  imported   into  the 


Offenses  Against  Operation  of  Govenment      827 

United  States  from  any  foreign  port  or  country,  after 
an  inspection  thereof  has  been  demanded  by  the  collector 
of  any  collection  district,  or  shall  at  any  time  conceal 
or  destroy  any  such  invoice,  book,  or  paper  for  the  pur- 
pose of  suppressing  any  evidence  of  fraud  therein  con- 
tained, shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  two  years,  or  both. 

§  1013.  Resisting-  revenue  officers;  rescuing  or  destroy- 
ing seized  property,  etc.  Sec.  65.  Whoever  shall  forci- 
bly assault,  resist,  oppose,  prevent,  impede,  or  interfere 
with  any  officer  of  the  customs  or  of  the  internal  revenue, 
or  his  deputy,  or  any  person  assisting  him  in  the  execu- 
tion of  his  duties,  or  any  person  authorized  to  make 
searches  and  seizures,  in  the  execution  of  his  duty,  or 
shall  rescue,  attempt  to  rescue,  or  cause  to  be  rescued, 
any  property  which  has  been  seized  by  any  person  so 
authorized;  or  whoever  before,  at,  or  after  such  seizure, 
in  order  to  prevent  the  seizure  or  securing  of  any  goods, 
wares,  or  merchandise  by  any  person  so  authorized,  shall 
stave,  break,  throw  overboard,  destroy,  or  remove  the 
same,  shall  be  fined  not  more  than  two  thousand  dollars, 
or  imprisoned  not  more  than  one  year,  or  both;  and 
whoever  shall  use  any  deadly  or  dangerous  weapon  in 
resisting  any  person  authorized  to  make  searches  or 
seizures,  in  the  execution  of  his  duty,  or  shall  rescue, 
attempt  to  rescue,  or  cause  to  be  rescued,  any  property 
which  has  been  seized  by  any  person  so  authorized;  or 
whoever  before,  at,  or  after  such  seizure,  in  order  to 
prevent  the  seizure  or  securing  of  any  goods,  wares, 
or  merchandise  of  any  person  so  authorized,  shall  stave, 
break,  throw  overboard,  destroy,  or  remove  the  same, 
shall  be  fined  not  more  than  two  thousand  dollars,  or 
imprisoned  not  more  than  one  year,  or  both;  and  who- 
ever shall  use  any  deadly  or  dangerous  weapon  in  re- 
sisting any  person  authorized  to  make  searches  or  seiz- 
ures, in  the  execution  of  his  duty,  with  intent  to  commit 


828  Criminal  Law 

a  bodily  injury  upon  him  or  to  deter  or  prevent  him 
from  discharging  his  duty,  shall  be  imprisoned  not  more 
than  ten  years. 

§  1014.  Falsely  assuming  to  be  a  revenue  officer.  Sec. 
66.  Whoever  shall  falsely  represent  himself  to  be  a 
revenue  officer,  and,  in  such  assumed  character,  demand 
or  receive  any  money  or  other  article  of  value  from  any 
person  for  any  duty  or  tax  due  to  the  United  States, 
or  for  any  violation  or  pretended  violation  of  any  revenue 
law  of  the  United  States,  shall  be  fined  not  more  than 
five  hundred  dollars  and  imprisoned  not  more  than  two 
years. 

§  1015.  Offering  presents  to  revenue  officers.  Sec.  67. 
Whoever,  being  engaged  in  the  importation  into  the 
United  States  of  any  goods,  wares,  or  merchandise,  or 
being  interested  as  principal,  clerk,  or  agent  in  the  entry 
of  any  goods,  wares,  or  merchandise,  shall  at  any  time 
make,  or  offer  to  make,  to  any  officer  of  the  revenue, 
any  gratuity  or  i^resent  of  money  or  other  thing  of  value, 
shall  be  fined  not  more  than  five  thousand  dollars,  oi- 
imi)rison('d  not  more  than  two  years,  or  botli. 

§  1016.  Admitting  merchandise  to  entry  for  less  than 
legal  duty.  Sec.  68.  Whoever,  being  an  officer  of  {ho 
revenue,  siiall,  by  any  means  whatever,  knowingly  admit 
or  aid  in  admitting  to  entr>%  any  goods,  wares,  or  mer- 
chandise, upon  ])ayiiieiil  of  less  lliaii  llie  aiiioiuit  of  duty 
legally  due  tlieieoii,  sliall  l)e  removed  fi'om  oflice  and 
fined  nof  moi-e  flian  five  lliousand  dollars,  or  imprisoned 
not  nioic  llian  1  wo  years,  or  bolli. 

§  1017.  Securing  entry  of  merchandise  by  false  samples, 
etc.  See.  (Jl>.  Wlioevei',  by  any  means  whatever,  shall 
kiiowin^-ly  effect,  or  aid  in  effecting,  any  entry  of  goods, 
wares,  or  merchandise,  at  less  than  the  ti"ue  weight  or 


Offenses  Against  Operation  of  Govenment      829 

measure  thereof,  or  upon  a  false  classification  thereof  as 
to  quality  or  value,  or  by  the  payment  of  less  than  the 
amount  of  duty  legally  due  thereon,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both. 

§  1018.  False  certification  by  consular  officer.  Sec.  70. 
Whoever,  being  a  consul,  or  vice-consul,  or  other  person 
employed  in  the  consular  service  of  the  United  States, 
shall  knowingly  certify  falsely  to  any  invoice,  or  other 
paper,  to  wiiich  his  certificate  is  by  law  authorized  or 
required,  shall  be  fined  not  more  than  ten  thousand  dol- 
lars and  imprisoned  not  more  than  three  years. 

§  1019.  Taking"  seized  property  from  custody  of  revenue 
officer.  Sec.  71.  Whoever  shall  dispossess  or  rescue,  or 
attempt  to  dispossess  or  rescue,  any  property  taken  or 
detained  by  any  officer  or  other  person  under  the  au- 
thority of  any  revenue  law  of  the  United  States,  or  shall 
aid  or  assist  therein,  shall  be  fined  not  more  than  three 
hundred  dollars  and  imprisoned  not  more  than  one  year. 

§1020.  Forging  or  altering  ship's  papers  or  custom- 
house documents.  Sec.  72.  Whoever  shall  falsely  make, 
forge,  counterfeit,  or  alter  any  instrument  in  imitation 
of,  or  purporting  to  be,  an  abstract  or  official  copy  or 
certificate  of  the  recording,  registry,  or  enrollment  of 
any  vessel,  in  the  office  of  any  collector  of  the  customs, 
or  a  license  to  any  vessel  for  carrying  on  the  coasting- 
trade  or  fisheries  of  the  United  States,  or  a  certificate 
of  ownership,  pass,  passport,  sea  letter,  or  clearance, 
granted  for  any  vessel,  under  the  authority  of  the  United 
States,  or  a  permit,  debenture,  or  other  official  docu- 
ment granted  by  any  collector  or  other  officer  of  the 
customs  by  virtue  of  his  office;  or  whoever  shall  utter, 
publish,  or  pass,  or  attempt  to  utter,  publish,  or  pass, 
as  true,  any  such  false,  forged,  counterfeited,  or  falsely 


830  Ckiminal  Law 

altered  instrument,  abstract,  official  copy,  certificate, 
license,  pass,  passport,  sea  letter,  clearance,  pemiit, 
debenture,  or  other  official  document  herein  specified, 
knowing  the  same  to  be  false,  forged,  counterfeited,  or 
falsely  altered,  with  an  intent  to  defraud,  shall  be  fined 
not  more  than  one  thousand  dollars  and  imprisoned  not 
more  than  three  years. 

§  1021.  Forging  military  bounty-land  warrant,  etc. 
Sec.  73.  AVhoever  shall  falsely  make,  alter,  forge,  or 
counterfeit  any  military  boimty-land  warrant,  or  mili- 
tary bounty-land  warrant  certificate,  issued  or  purport- 
ing to  have  been  issued  by  the  Commissioner  of  Pensions 
under  any  law  of  congress,  or  any  certificate  or  duplicate 
certificate  of  location  of  any  military  bounty-land  war- 
rant, or  military  bounty-land  certificate  or  duplicate  cer- 
tificate of  the  purchase  of  any  of  the  lands  of  the  United 
States,  or  any  receipt  or  duplicate  receipt  for  the  pur- 
chase money  of  any  of  the  lands  of  the  United  States, 
issued  or  purporting  to  have  been  issued  by  the  register 
and  receiver  at  any  land  office  of  the  United  States  or 
by  either  of  them;  or  whoever  shall  utter,  publish,  or 
pass  as  true,  any  such  false,  forged,  or  counterfeited 
military  bounty-land  warrant,  military  bounty-land  war- 
rant certificate,  certificate  or  duplicate  certificate  of  lo- 
cation, certificate  or  duplicate  certificate  of  purchase, 
receipt  of  duplicate  receipt  for  the  purchase  money  of 
any  of  llie  lands  of  the  United  States,  knowing  the  same 
to  be  false,  forged,  or  counterfeited,  shall  b(^  imprisoned 
not  more  than  ten  years. 

iSj  1022.  Forging,  etc.,  certificate  of  citizenship.  Sec. 
74.  Wliocvcr  shall  falsely  make,  forge,  or  coimtei-feii, 
or  cause  or  procure  to  be  falsely  made,  forged,  or  countei-- 
feited,  or  shall  k'liowingly  aid  or  assist,  in  falsely  niak 
ing,  forging,  or  counterfeiting  any  certificate  of  citizen- 
ship,  witli    intent    to  use  the   same,   or  with   the   intent 


Offenses  Against  Operation  of  Govenment      831 

that  the  same  may  be  used  by  some  other  person,  shall 
be  fined  not  more  than  ten  thousand  dollars,  or  impris- 
oned not  more  than  ten  years,  or  both. 

§  1023.  Engraving-,  etc.,  plate  for  printing  or  photo- 
graphing, selling,  or  bringing  into  United  States,  etc., 
certificate  of  citizenship.  Sec.  75.  Whoever  shall  en- 
grave, or  cause  or  procure  to  be  engraved,  or  assist  in 
engraving,  any  plate  in  the  likeness  of  any  plate  designed 
for  the  printing  of  a  certificate  of  citizenship;  or  who- 
ever shall  sell  any  such  plate,  except  under  the  direction 
of  the  Secretary  of  Commerce  and  Labor  or  other  proper 
officer;  or  whoever  shall  have  in  his  control,  custody, 
or  possession  any  metallic  plate  engraved  after  the  simili- 
tude of  any  plate  from  which  any  such  certificate  has 
been  printed,  with  the  intent  to  use  or  to  suffer  such 
plate  to  be  used  in  forging  or  counterfeiting  any  such 
certificate  or  any  part  thereof;  or  whoever  shall  print, 
photograph,  or  in  any  manner  cause  to  be  printed,  photo- 
graphed, made,  or  executed,  any  print  or  impression  in 
the  likeness  of  any  such  certificate,  or  any  part  thereof; 
or  whoever  shall  sell  any  such  certificate,  or  shall  bring 
the  same  into  the  United  States  from  any  foreign  place, 
except  by  direction  of  some  proper  officer  of  the  United 
States;  or  whoever  shall  have  in  his  possession  a  dis- 
tinctive paper  which  has  been  adopted  by  the  proper 
officer  of  the  United  States  for  the  printing  of  such  cer- 
tificate, with  intent,  unlawfully  to  use  the  same,  shall 
be  fined  not  more  than  ten  thousand  dollars,  or  impris- 
oned not  more  than  ten  years,  or  both. 

§  1024.  False  personation,  etc.,  in  procuring  naturaliza- 
tion. Sec.  76.  Whoever,  when  applying  to  be  admitted 
a  citizen,  or  when  appearing  as  a  witness  for  any  sucli 
person,  shall  knowingly  personate  any  person  other  than 
himself,  or  shall  falsely  appear  in  the  name  of  a  deceased 
person,  or  in  an  assumed  or  fictitious  name;  or  whoever 


832  Criminal  Law 

shall  falsely  make,  forge,  or  counterfeit  any  oath,  notice, 
affidavit,  certificate,  order,  record,  signature,  or  other 
instrument,  paper,  or  proceeding  required  or  authorized 
by  any  law  relating  to  or  providing  for  the  naturaliza- 
tion of  aliens;  or  whoever  shall  utter,  sell,  dispose  of, 
or  shall  use  as  true,  or  genuine,  for  any  unlawful  pur- 
pose, any  false,  forged,  antedated,  or  counterfeited  oath, 
notice,  certificate,  order,  record,  signature,  instrument, 
paper,  or  proceeding  above  specified;  or  whoever  shall 
sell  or  dispose  of  to  any  person  other  than  the  person 
for  whom  it  was  originally  issued  any  certificate  of  citi- 
zenship or  certificate  showing  any  person  to  be  admitted 
a  citizen,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 

§  1025.  Using-  false  certificate  of  citizenship,  or  deny- 
ing citizenship,  etc.  Sec.  77.  Whoever  shall  use  or  at- 
tempt to  use,  or  shall  aid,  assist,  or  participate  in  the 
use  of  any  certificate  of  citizenship,  knowing  the  same 
to  be  forged,  counterfeited,  or  antedated,  or  knowing 
the  same  to  have  been  procured  by  fraud  or  otherwise 
unlawfully  obtained;  or  whoever,  without  lawful  excuse, 
shall  knowingly  possess  any  false,  forged,  antedated,  or 
counterfeit  certificate  of  citizenship  purporting  to  liave 
been  issued  undei-  any  law  of  tlie  Ignited  States  relating 
to  naturalization,  knowing  such  certilicate  to  l)e  false, 
forged,  antedated,  or  counterfeit,  witli  tlie  intent  nnlaw- 
t'nlly  to  use  the  same;  or  whoever  shall  ()l)tain,  accept, 
(»!•  i-cceive  any  certificate  of  citiziMislii]),  l-;n()\ving  the 
same  to  have  ])een  ])i'()('nre<l  by  I  rand  or  by  the  nse  ol' 
means  nt'  ;iny  I'jilse  name  or  statement  gi\'eii  of  ma(h' 
witli  the  intent  to  procni'e,  oi"  to  aid  in  procuring,  the 
issuance  of  such  certificate,  or  knowing  the  same  to 
have  been  fraudulently  altered  or  antedated;  or  whoever 
\vith<Hit  I;i\vrnl  excuse,  sliall  liave  in  liis  possession  any 
hhink  cejtificate  of  citizensliij)  jirovided  by  the  Bureau 
of  Immigration   and  Naturalization  with   tlie  intent  un- 


Offenses  Against  Operation  of  Govenment      833 

lawfully  to  use  the  same;  or  whoever,  after  having  been 
admitted  to  be  a  citizen,  shall,  on  oath  or  by  affidavit, 
knowingly  deny  that  he  has  been  so  admitted,  with  the 
intent  to  evade  or  avoid  any  duty  or  liability  imposed  or 
required  by  law,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  five  years, 
or  both. 

§  1026.  Using-  false  certificate,  etc.,  as  evidence  of  right 
to  vote,  etc.  Sec.  78.  Whoever  shall  in  any  manner 
use,  for  the  pui*pose  of  registering  as  a  voter,  or  as  evi- 
dence of  a  right  to  vote,  or  otherwise  unlawfully,  any 
order,  certificate  of  citizenship,  or  certificate,  judgment, 
or  exemplification,  showing  any  person  to  be  admitted 
to  be  a  citizen,  whether  heretofore  or  hereafter  issued 
or  made,  knowing  that  such  order,  certificate,  judgment, 
or  exemplification  has  been  unlawfully  issued  or  made; 
or  whoever  shall  unlawfully  use,  or  attempt  to  use,  any 
such  order  or  certificate,  issued  to,  or  in  the  name  of 
any  other  person,  or  in  a  fictitious  name,  or  the  name  of 
a  deceased  person,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  five  years,  or 
both. 

§  1027.  Falsely  claiming  citizenship.  Sec.  79.  Who- 
ever shall  knowingly  use  any  certificate  of  naturalization 
heretofore  or  which  hereafter  may  be  granted  by  any 
court,  which  has  been  or  may  be  procured  through  fraud 
or  by  false  evidence,  or  which  has  been  or  may  hereafter 
be  issued  by  the  clerk  or  any  other  officer  of  the  court 
without  any  appearance  and  hearing  of  the  applicant 
in  court  and  without  lawful  authority;  or  whoever,  for 
any  fraudulent  purpose  whatever,  shall  falsely  represent 
himself  to  be  a  citizen  of  the  United  States  without  hav- 
ing been  duly  admitted  to  citizenship,  shall  be  fined  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both. 

c.  L.— 53 


834  Criminal  Law 

§  1028.  Taking  false  oath  in  naturalization  proceedings. 
Sec.  80.  Whoever,  in  any  proceeding  under  or  by  virtue 
of  any  law  relating  to  the  naturalization  of  aliens,  shall 
knowingly  swear  falsely  in  any  case  where  an  oath  is 
made  or  affidavit  taken,  shall  be  fined  not  more  than  one 
thousand  dollars  and  imprisoned  not  more  than  five  years. 

§  1029.  Provisions  applicable  to  all  courts  of  naturali- 
zation. Sec.  81.  The  provisions  of  the  five  sections  last 
preceding  shall  apply  to  all  proceedings  had  or  taken, 
or  attempted  to  be  had  or  taken,  before  any  court  in 
which  any  proceeding  for  naturalization  may  be  com- 
menced or  attempted  to  be  commenced,  and  whether  such 
court  was  vested  by  law  with  jurisdiction  in  naturaliza- 
tion proceedings  or  not. 

§  1030.  Shanghaiing  and  falsely  inducing  person  intoxi- 
cated to  go  on  vessel  prohibited.  Sec.  82.  Wlioever, 
with  intent  that  any  person  shall  perform  service  or  labor 
of  any  kind  on  board  of  any  vessel  engaged  in  trade 
and  commerce  among  the  several  states  or  with  foreign 
nations,  or  on  board  of  any  vessel  of  the  United  States 
engaged  in  navigating  the  high  seas  or  any  navigable 
water  of  the  United  States,  shall  procure  or  induce,  or 
attempt  to  procure  or  induce  another  by  force  or  threats 
or  by  representations  which  he  knows  or  believes  to  be 
untrue,  or  while  tlie  person  so  procured  or  induced  is 
intoxicated  or  under  the  infiuence  of  any  drug,  to  go 
on  board  of  any  such  vessel,  or  to  sign  or  in  anywise 
enter  into  any  agreement  to  go  on  board  of  any  such 
vessel  to  perfonn  service  or  labor  thereon;  or  whoever 
shall  knowingly  detain  on  board  of  any  such  vessel  any 
person  so  procured  or  induced  to  go  on  board  thereof, 
or  to  enter  into  any  agreement  to  go  on  board  thereof,  by 
any  means  lierein  defined;  or  wlioever  shall  knowingly 
••lid  (ir  ;ihel  in  llie  doing  of  any  of  the  things  herein  made 
unlawful,  shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both. 


Offenses  Against  Operation  of  Govenment      835 

§  1031.  Corporations,  etc.,  not  to  contribute  money  for 
political  elections,  etc.  Sec.  83.  It  shall  be  unlawful 
for  any  national  bank,  or  any  corporation  organized  by 
authority  of  any  law  of  congress,  to  make  a  money  con- 
tribution with  any  election  to  any  political  office.  It 
shall  also  be  unlawful  for  any  corporation  whatever  to 
make  a  money  contribution  in  connection  with  any  elec- 
tion at  which  presidential  and  vice-presidential  electors 
or  a  representative  in  congress  is  to  be  voted  for,  or 
any  election  by  any  state  legislature  to  a  United  States 
Senator.  Every  corporation  which  shall  make  any  con- 
tribution in  violation  of  the  foregoing  provisions  shall 
be  fined  not  more  than  five  thousand  dollars;  and  every 
officer  or  director  of  any  coiporation  who  shall  consent 
to  any  contribution  by  the  corporation  in  violation  of 
the  forgoing  provisions  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year, 
or  both. 

§  1032.  Hunting  birds,  or  taking  their  eggs  from  breed- 
ing grounds,  prohibited.  Sec.  84.  Whoever  shall  hunt, 
trap,  capture,  wilfully  disturb,  or  kill  any  bird  of  any 
kind  whatever,  or  take  the  eggs  of  any  such  bird,  on 
any  lands  of  the  United  States  which  have  been  set 
apart  or  reserved  as  breeding  grounds  for  birds,  by  any 
law,  proclamation,  or  executive  order,  except  under  such 
rules  and  regulations  as  the  Secretary  of  Agriculture 
may,  from  time  to  time,  prescribe,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  six  months,  or  both. 


CHAPTER  LXII 

GENERAL  AND  SPECIAL  PROVISIONS 

CHAPTER  FOURTEEN 

Penal  Code  Act,  March  4,  1909 


1035. 

Punishment     of     death     by 

§  1044. 

hanging. 

§  1045, 

1036. 

No   conviction   to   -work   cor- 
ruption   of    blood    or    for- 

§ 1046. 

feiture   of   estate. 

§  1047. 

1037. 

Whipping    and    the    pillory 
abolished. 

5?  1048. 

1038. 

Jurisdiction  of  State  courts. 

1039. 

Pardoning  power. 

§  1049. 

1040. 

Indians    committing    certain 

crimes;    how  punished. 

§  1050. 

1041. 

Crimes  committed  on  Indian 
reservations  in  South  Da- 

kota. 

§  1051. 

1042. 

Qualified  verdicts  in  certain 

cases. 

§  1052. 

10 13. 

Body    of    executed    offender 
may   be   delivered   to   sur- 
geon   for   dissection. 

Who   are   principals. 

Punishment    of    accessories. 

Accessories  to  robbery  or 
piracy. 

Felonies  and   misdemeanors. 

Murder  and  manslaughter; 
place  where  crime  deemed 
to    have    been    committed. 

Construction  o  f  certain 
words. 

Omission  of  words  "hard 
labor"  not  to  deprive 
court  of  power  to  impose. 

Arrangement  and  classifica- 
tion of  sections. 

Jurisdiction  of  circuit  and 
district  courts. 


§  1035.  Punishment  of  death  by  hanging.     Sec  323. 

Tlu'  iiiaiiiicr  of  iullictiii^'  tlie  puiiisliineui  of  death  shall 
he  hy  han^in^. 

§  1036.  No  conviction  to  work  corruption  of  blood  or 
forfeiture  of  estate.  Soc  324.  No  convictioii  or  jiid^- 
iiicnt  sli;ill  \\()il<  coi-nipt  ion  of  blood  or  any  forfeiture 
of  estate. 

ij  1037.  Whipping  and  the  pillory  abolished.     Sec.  325. 

The  punislmicnl  of  wliipi)!!!,!;-  and  of  standiiii:;  in  the  pil- 
lory shall  not  ])('  inflicted. 

836 


General  and  Special  Provisions  837 

§  1038.  Jurisdiction  of  state  courts.  Sec.  326.  Noth- 
ing in  this  title  sliall  be  held  to  take  away  or  impair 
the  jurisdiction  of  the  courts  of  the  several  states  under 
the  laws  thereof. 

§  1039.  Pardoning  power.  Sec.  327.  Whenever,  by 
the  judgment  of  any  court  or  judicial  officer  of  the  United 
States,  in  any  criminal  proceeding,  any  person  is  sen- 
tenced to  two  kinds  of  punishment,  the  one  pecuniary 
and  the  other  corporal,  the  President  shall  have  full 
discretionary  power  to  pardon  or  remit,  in  whole  or  in 
part,  either  one  of  the  two  kinds,  without,  in  any  man- 
ner, impairing  the  legal  validity  of  the  other  kind,  or  of 
any  portion  of  either  kind,  not  pardoned  or  remitted. 

§1040.  Indians  committing-  certain  crimes;  how  pun- 
ished. Sec.  328.  All  Indians  committing  against  the 
person  or  property  of  another  Indian  or  other  person 
any  of  the  following  crimes,  namely:  murder,  man- 
slaughter, rape,  assault  with  intent  to  kill,  assault  with 
a  dangerous  weapon,  arson,  burglaiy,  and  larceny,  within 
any  teiTitory  of  the  United  States,  and  either  within  or 
without  an  Indian  reservation,  shall  be  subject  therefor 
to  the  laws  of  such  territory  relating  to  said  crimes,  and 
shall  be  tried  therefor  in  the  same  courts  and  in  the 
same  manner  and  shall  be  subject  to  the  same  penalties 
as  are  all  other  persons  charged  with  the  commission 
of  said  crimes,  respectively;  and  the  said  courts  are 
hereby  given  jurisdiction  in  all  such  cases.  And  all 
such  Indians  committing  any  of  the  above  named  crimes 
against  the  person  or  property  of  another  Indian  or 
other  person  within  the  boundaries  of  any  state  of  the 
United  States,  and  within  the  limits  of  any  Indian  reser- 
vation, shall  be  subject  to  the  laws,  tried  in  the  same 
courts  and  in  the  same  manner,  and  be  subject  to  the 
same  penalties  as  are  all  other  persons  committing  any 
of  the  above  crimes  within  the  exclusive  jurisdiction 


838  Criminal  Law 

of  the  United  States:  Provided,  That  any  Indian  who 
shall  commit  the  offense  of  rape  upon  any  female  Indian 
within  the  limits  of  any  Indian  reservation  shall  be 
imprisoned  at  the  discretion*  of  the  court. 

§  1041.  Crimes  committed  on  Indian  reservation  in 
South  Dakota.  Sec.  329.  The  circuit  and  district  courts 
of  the  United  States  for. the  district  of  South  Dakota 
shall  have  jurisdiction  to  hear,  try,  and  determine  all 
actions  and  proceedings  in  which  any  person  shall  be 
charged  with  the  crime  of  murder,  manslaughter,  rape, 
assault  with  intent  to  kill,  assault  with  a  dangerous 
weapon,  arson,  burglary,  or  larceny,  committed  within 
the  limits  of  any  Indian  reservation  in  the  State  of 
South  Dakota.  Any  person  convicted  of  murder,  man- 
slaughter, rape,  arson,  or  burglary,  committed  within 
the  limits  of  any  such  reservation,  shall  be  subject  to 
the  same  punishment  as  is  imposed  upon  persons  com- 
mitting said  crimes  within  the  exclusive  jurisdiction  of 
the  United  States:  Provided,  That  any  Indian  who  shall 
commit  the  crime  of  rape  upon  any  female  Indian  within 
any  such  reservation  shall  be  imprisoned  at  the  discre- 
tion of  the  court.  Any  person  convicted  of  the  crime 
of  assault  with  intent  to  kill,  assault  with  a  dangerous 
weapon,  or  larceny,  committed  within  the  limits  of  any 
such  reservation,  shall  be  subject  to  the  same  punish- 
ment as  is  provided  in  cases  of  other  persons  convicted 
of  any  of  said  crimes  under  the  laws  of  the  State  of 
South  Dakota.  Tliis  section  is  passed  in  pursuance  of 
tlie  cession  of  jurisdiclioii  contained  in  chapter  lOG,  Laws 
of  Soutli  Dakota,  1901. 

§  1042.  Qualified  verdicts  in  certain  cases.  Sec.  330. 
in  all  cases  where  tiie  accused  is  found  guilty  of  the 
crime  of  murder  in  the  first  degree,  or  rape,  the  jury 
may  qualify  their  verdict  by  adding  thereto  ** without 
eapital   punishment;"  and  whenever  the  jur}''  shall  re- 


General  and  Special  Provisions  839 

turn  a  verdict  qualified  as  aforesaid,  the  person  con- 
victed shall  be  sentenced  to  imprisonment  for  life. 

§  1043.  Body  of  executed  offender  may  be  dalivered  to 
surgeon  for  dissection.  Sec.  331.  The  court  before 
which  any  person  is  convicted  of  murder  in  the  first 
degree,  or  rape,  may,  in  its  discretion,  add  to  the  judg- 
ment of  death,  that  the  body  of  the  offender  be  delivered 
to  a  surgeon  for  dissection;  and  the  marshal  who  exe- 
cutes such  judgment  shall  deliver  the  body,  after  execu- 
tion, to  such  surgeon  as  the  court  may  direct;  and  such 
surgeon,  or  some  person  appointed  by  him,  shall  receive 
and  take  aw^ay  the  body  at  the  time  of  execution. 

§  1044.  Who  are  principals.  Sec.  332.  Whoever  di- 
rectly commits  any  act  constituting  an  offense  defined 
in  any  law  of  the  United  States,  or  aids,  abets,  counsels, 
commands,  induces,  or  procures  its  commission,  is  a  prin- 
cipal. 

§  1045.  Punishment  of  accessories.  Sec.  333.  Who- 
ever, except  as  otherwise  expressly  provided  by  law, 
being  an  accessoiy  after  the  fact  to  the  commission  of 
any  offense  defined  in  any  law  of  the  United  States,  shall 
be  imprisoned  not  exceeding  one-half  the  longest  term 
of  imprisonment,  or  fined  not  exceeding  one-half  the 
largest  fine  prescribed  for  the  punishment  of  the  prin- 
cipal, or  both,  if  the  principal  is  punishable  by  both  fine 
and  imprisoimient ;  or  if  the  principal  is  punishable  by 
death,  then  an  accessory  shall  be  imprisoned  not  more 
than  ten  years. 

§  1046.  Accessories  to  robbery  or  piracy.  Sec.  334. 
Whoever,  without  lawful  authority,  receives  or  takes 
into  custody  any  vessel,  goods,  or  other  property,  felo- 
niously taken  by  any  robber  or  pirate  against  the  laws 
of  the  United  States,  knowing  the  same  to  have  been 


840  Criminal  Law 

feloniously  taken,  and  whoever,  knowing  that  such  pirate 
or  robber  has  done  or  committed  any  such  piracy  or 
robbery,  on  the  land  or  at  sea,  receives,  entertains,  or 
conceals  any  such  pirate  or  robber,  is  an  accessory  after 
the  fact  to  such  robbeiy  or  piracy,  and  shall  be  impris- 
oned not  more  than  ten  years. 

§  1047.  Felonies  and  misdemeanors.  Sec.  335.  All  of- 
fenses which  may  be  punished  by  death,  or  imprison- 
ment for  a  tenn  exceeding  one  year,  shall  be  deemed 
felonies.  All  other  offenses  shall  be  deemed  misde- 
meanors. 

§  1048.  Murder  and  manslaughter;  place  where  crime 
deemed  to  have  been  committed.  Sec.  336.  In  all  cases 
of  murder  or  manslaughter,  the  crime  shall  be  deemed 
to  have  been  committed  at  the  place  where  the  injury 
was  inflicted,  or  the  poison  administered,  or  other  means 
employed  which  caused  the  death,  without  regard  to 
the  place  where  the  death  occurs. 

§  1049.  Construction  of  words.  Sec.  337.  Words  used 
in  this  title  in  the  present  tense  include  the  future  as 
well  as  the  present;  words  used  in  the  masculine  gender 
iTK'hulo  the  feminine  and  neuter;  the  singular  number 
includes  the  plural,  and  the  plural  the  singular;  the 
won!  "person"  and  the  word  "whoever"  include  a  cor- 
poration as  well  as  a  natural  person;  writing  includes 
printing  and  typewriting,  and  signature  or  subscription 
includes  a  mark  when  the  person  making  the  same  in- 
tended it  as  such.  The  words  "this  Title,"  wherever 
they  occur  lio-ciu,  slmll  l)e  const iMicd  to  menu  tliis  act. 

§1050.  Omission  of  words  "hard  labor"  not  to  de- 
prive court  of  power  to  impose  "hard  labor."  Sec.  338. 
The  omission  of  tlie  words  "hard  labor"  from  tlie  pro- 
visions prescribing  the  iMinishment  in  the  various  sec- 


General  and  Special  Provisions  841 

tions  of  this  act,  shall  not  be  construed  as  depriving  the 
court  of  the  power  to  impose  hard  labor  as  a  part  of  the 
punishment,  in  any  case  where  such  power  now  exists. 

§  1051.  Arrang-ement    and   classification   of   sections. 

Sec.  339.  The  arrangement  and  classification  of  the  sev- 
eral sections  of  this  title  have  been  made  for  the  purpose 
of  a  more  convenient  and  orderly  arrangement  of  the 
same,  and  therefore  no  inference  or  presumption  of  a 
legislative  construction  is  to  be  drawn  by  reason  of  the 
chapters  under  which  any  particular  section  is  placed. 

§  1052.  Jurisdiction    of    circuit    and    district    courts. 

Sec.  340.  The  crimes  and  offenses  defined  in  this  title 
shall  be  cognizable  in  the  circuit  and  district  courts  of 
the  United  States,  as  prescribed  in  sections  563  and  629 
of  the  Revised  Statutes. 


CHAPTER  LXIII 


VIOLATIONS  OF  INTERSTATE  COMMEECE 


§  1055.  Definition,  Interstate  Com- 
merce. 

§  1056.  Transportation  of  female 
for   prostitution. 

§  1057.  Securing  transportation  for 
woman     for     prostitution. 

§  1058.  Knowingly  persuading  wom- 
en under  18  years  of  age 
to  be  transported  for 
prostitution. 

§  1059.  Courts    having    jurisdiction. 

§  1060.  Alien  women,  foreign  com- 
merce. 

INTERSTATE    RAILROAD    PASS 

§  1061.  Interstate  free  passes,  ille- 
gal use. 

FRUIT    SHIPMENTS 

§  1062.  Tlie  standard  barrel  for 
fruit  and  dry  commodities, 
cranberry  barrel. 

§  1063.  Punishment  for  shipment 
interstate,  fruits  below 
standard  l)arrel. 

8  1064.  Transporting  intoxicating 
liquors  in  Interstate  Com- 
merce except  for  scientific 
purposes. 

PRIZE    FIGHTS 

i  10G5.  Prize  fight  fihii.s.  Interstate 
Transporlation  thereof. 

§  106G.  Intent  to  prevent,  interfere, 
or  olistruct  foreign  com- 
merce. 

8  10G7.  Larceny  of  interstate  ship- 
ment. 


§  1068.  Under  Act  Feb.  13,  1913, 
conviction,  state  court  a 
bar  under  act. 

§  1069.  An  act  to  punish  the  trans- 
portation of  stolen  motor 
vehicles  in  interstate  or 
foreign  commerce. 

§  1070.  Convictions  in  restraint  of 
trade,  penalty. 

§  1071.  Monopolizing  or  attemjiting 
to  do  so  of  commerce 
among  the  states  or 
foreign  nations,  unlawful 
punishment, 

§  1072.  Introducing  falsely  labeled 
dairy  product  or  food. 

§  1073.  Eefusal  to  testify  before  In- 
terstate Commerce  Com- 
mission,  penalty. 

§  1074.  Illegal  transportation  of  in- 
sect pests  in  interstate 
commerce. 

§  1075.  Person  guilty  of  violating 
section  one  of  this  Act, 
May   3,    1905.    Penalty. 

§  1076.  Unlawful  to  manufacture 
adulterated  food  or  drug, 
puni'ihmcnt. 

§  1077.  Sliipping  and  delivery  adul- 
terated drugs  and  food  in 
interstate  commerce,  pun- 
ishment. 

§  1078.  Regulations  proscril)ed  by 
Secretary  of  Agriculture 
of  inspection   of  meat. 

§  1079.  Adulterated  or  misbranded 
insecticides  forliidden  ship- 
ment.    Penalty. 


842 


Violations  of  Interstate  Commerce 


843 


§  1080.  Officers  of  common  carriers 
engaged  in  interstate  com- 
merce must  make  monthly 
reports  accidents. 

§  1081.  Officers  of  common  carriers 
must  make  report  for  fail- 
ure, punishment. 

§  1082.  Eeport  of  common  carrier 
of  accident  not  to  be  used 
as  evidence. 

§  1083.  Punishment  for  refusal  to 
testify  to  make  false  en- 
try in  report.  Willfully 
mutilate  documentary  evi- 
dence, or  a  corporation 
failing  to  file  report  be- 
fore   trades   commission. 

§  1084.  Violations  of  anti  trust  law 
of  corporation  apply  to  its 
officers  and  agents;  all  are 
punished. 

§  1085.  Secretary  of  Agriculture 
may  demand  to  inspect 
and  grade  grains,  may 
also  revoke  license  after 
opportunity  has  been  given 
of   hearing. 

J  1086.  No  grain  shall  be  shipped 
in  interstate  commerce  un- 
less inspected,  selling  and 
offering  for  sale,  etc. 

§  1087.  Violation  Act  Aug.  11,  1916, 
including  sections  four 
and  seven  of  second  Act, 
punishment. 

§  1088.  Interfering  with  the  duties 
of  an  officer  or  employee 
of  Department  of  Agricul- 
ture, punishment. 


§  1089.  Forging,  counterfeiting,  etc., 
license  of  Secretary  of 
Agriculture  and  violating 
section  eight  of  Act  Aug. 
11,  1916,  part  "c"  pen- 
alty. 

SHIPMENT    OP    LIME 

§  1090.  Lime  barrels  must  be 
marked,  stenciled  and 
branded. 

§  1091.  Lime  sold  in  interstate  or 
foreign  commerce  in  less 
capacity  than  standard 
barrel,  how  marked. 

§  1092.  Eules  and  regulations  allow 
variations. 

§  1093.  Importer  selling  imported 
article  at  a  price  substan- 
tially less  than  the  actual 
market  value  in  U.  S., 
punishment. 

§  1094.  Punishment  for  restraint  of 
trade  between  any  terri- 
tory of  U.  S.  and  an- 
other, etc. 

§  1095.  Unlawful  to  sell  lime  not 
properly  worked. 

§  1096.  Variation  of  standard  bar- 
rels may  be  permitted. 

§  1097.  Violations  of  lime  barrels, 
punishment. 

§  1098.  Standard  baskets  for  grapes 
and  small  fruits. 

§  1099.  Standard  capacity  of  con- 
tainers of  small  fruits  and 
berries. 

§  1100.  Punishment  for  using  bask- 
ets not  up  to  standard. 


WHITE  SLAVE  TEAFFIC  ACT 


§  1055.  Definition,  interstate  commerce.  The  term 
* '  interstate  commerce, ' '  as  used  in  this  act,  shall  include 
transportation  from  any  state  or  territoiy  or  the  Dis- 
trict of  Columbia  to  any  other  state  or  territory  or  the 


844  Criminal  Law 

District  of  Columbia,  and  the  term  "foreign  commerce," 
as  used  in  this  act,  shall  include  transportation  from 
any  state  or  territoiy  or  the  District  of  Columbia  to 
any  foreign  countiy  and  from  any  foreign  country  to 
any  state  or  territory  or  the  District  of  Columbia.^ 

§  1056.  Transportation    of    female    for    prostitution. 

That  any  person  who  sliall  knowingly  transport  or  cause 
to  be  transported,  or  aid  or  assist  in  obtaining  transporta- 
tion for,  or  in  transporting,  in  interstate  or  foreign  com- 
merce, or  in  any  territoiy  or  in  the  District  of  Columbia, 
any  woman  or  girl  for  the  purpose  of  prostitution  or 
debauchery,  or  for  any  other  immoral  purpose,  or  with 
the  intent  and  pui*pose  to  induce,  entice,  or  compel  such 
woman  or  girl  to  become  a  prostitute  or  to  give  herself 
up  to  debauchery,  or  to  engage  in  any  other  immoral 
practice;  or  who  shall  knowingly  procure  or  obtain,  any 
ticket  or  tickets,  or  any  form  of  transportation  nor  evi- 
dence of  the  right  thereto,  to  be  used  by  any  woman  or 
girl  in  interstate  or  foreign  commerce,  or  in  any  terri- 
tory or  the  District  of  Columbia,  in  going  to  any  place 
for  tlie  purpose  of  prostitution  or  debauchery,  or  for 
any  other  immoral  purjioso,  or  with  the  intent  or  pur- 
pose on  the  part  of  such  person  to  induce,  entice  or 
compel  lici-  to  give  herself  up  to  the  practice  of  prostitu- 
tion or  to  give  herself  up  to  debauchery,  or  any  other 
immoral  practice,  wliereby  any  such  woman  or  girl  shall 
]>('  transported  in  interstate  or  foreign  commerce,  or  in 
any  territory  or  the  District  of  Columbia,  shall  be  deemed 
guilty  of  a  felony,  ;ind  upon  conviction  thereof  shall  be 
punished  by  a  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  of  not  more  than  five  years,  or  by 
both  sncli  fiiif  and  iniprisonmeni,  in  the  dis<'r(>tion  of 
Hie  court.* 

1— Act   Juno    2n,    nn(t,    -M    Stnt.  2— Sec.  2,  Act  .Innc  25,   ]910,  36 

at    Large,    825.  Stat.  :it   T-nrco,  825. 


Violations  of  Interstate  Commerce  845 

§  1057.  Securing  transportation  for  woman  for  pros- 
titution. That  any  person  who  shall  knowingly  persuade, 
induce,  entice,  or  coerce,  or  cause  to  be  persuaded,  in- 
duced, enticed,  or  coerced,  or  aid  or  assist  in  persuad- 
ing, inducing,  enticing,  or  coercing  any  woman  or  girl 
to  go  from  one  place  to  another  in  interstate  or  foreign 
commerce,  or  in  any  territory  or  the  District  of  Colum- 
bia, for  the  purpose  of  prostitution  or  debauchery,  or 
for  any  other  immoral  purpose,  or  with  the  intent  and 
purpose  on  the  part  of  such  person  that  such  woman 
or  girl  shall  engage  in  the  practice  of  prostitution  or 
debauchery,  or  any  other  immoral  practice,  whether  with 
or  without  her  consent,  and  who  shall  thereby  know- 
ingly cause  or  aid  or  assist  in  causing  such  woman  or  girl 
to  go  and  to  be  carried  or  transported  as  a  passenger  upon 
the  line  or  route  of  any  common  carrier  or  carriers 
in  interstate  or  foreign  commerce,  or  any  territory  or 
the  District  of  Columbia,  shall  be  deemed  guilty  of  a 
felony  and  on  conviction  thereof  shall  be  punished  by 
a  fine  of  not  more  than  five  thousand  dollars,  or  by  im- 
prisonment for  a  term  not  exceeding  five  years  or  by 
both  such  fine  and  imprisonment,  in  the  discretion  of 
the  court.* 

§  1058.  Knowingly  persuading  women  under  18  years 
of  age  to  be  transported  for  prostitution.  Any  person 
who  shall  knowingly  persuade,  induce,  entice,  or  coerce 
any  woman  or  girl  under  the  age  of  eighteen  years  from 
any  state  or  territory  or  the  District  of  Columbia  or  any 
other  state  or  territory  or  the  District  of  Columbia,  with 
the  purpose  and  intent  to  induce  or  coerce  her,  or  that  she 
shall  be  induced  or  coerced  to  engage  in  prostitution  or 
debauchery,  or  any  other  immoral  practice,  and  shall  in 
furtherance  of  such  purpose  knowingly  induce  or  cause 
her  to  go  and  to  be  carried  or  transported  as  a  passenger 

3— Sec.  3,  Act  June  25,  1910,  36 
Stat,  at  Large,  825. 


846  Ceiminal  Law 

in  interstate  commerce  upon  the  line  or  route  of  any 
common  carrier  or  carriers,  shall  be  deemed  guilty  of  a 
felony,  and  on  conviction  thereof  shall  be  punished  by 
a  fine  of  not  more  than  ten  thousand  dollars,  or  by  im- 
prisonment for  a  term  not  exceeding  ten  years,  or  both, 
such  fine  and  imprisonment,  in  the  discretion  of  the 
court.* 

§  1059,  Courts  having  jurisdiction.  That  any  violation 
of  any  of  the  above  sections  1056,  1057,  1058,  shall  be 
prosecuted  in  any  court  having  jurisdiction  of  crimes 
within  the  district  in  which  said  violation  was  committed, 
or  from,  through,  or  into  which  any  such  woman  or  girl 
may  have  been  carried  or  transported  as  a  passenger  in 
interstate  or  foreign  commerce,  or  in  any  territory  or 
the  District  of  Columbia,  contrary  to  the  provisions  of 
any  of  said  sections.^ 

§  1060.  Alien  women,  foreign  commerce.  That  for  the 
purpose  of  regulating  and  preventing  the  transportation 
in  foreign  commerce  of  alien  women  and  girls  for  pur- 
poses of  prostitution  and  debauchery,  and  in  pursuance 
of  and  for  the  pui*pose  of  carrying  out  the  terms  of  the 
agreement  or  project  of  arrangement  for  the  suppres- 
sion (;f  tlie  white-slave  traffic,  adopted  July  25,  1902, 
for  submission  to  tlieir  respective  governments  by  the 
delegates  of  various  powers  represented  at  the  Paris 
conference  and  conlirnicd  by  a  formal  agreement  signed 
at  J*aris  on  I\Iay  18,  1908,  as  sliown  by  tlie  proclamation 
of  tlie  President  of  the  United  States,  dated  June  15, 
1908,  the  Commission('i--(l('ii('r;il  of  Immigrnlioii  is  liereby 
designated  as  tlic  antliorily  ol'  llic  United  Slates  to  re- 
ceive ;in<l  centralize  int'oi'iiiatioii  coiiccniiiig  llie  procnra- 
liitn  of  ;ilieii  women  .•iiid  girls  with  a  view  to  tlieir 
(JclciiH'lii'iy  and  to  exercise  sn|»er\isioii  over  such  alien 

4_Scc.  4,  Act  .Tunc  IT,,  IDIO,  :<r.  f,— Sec.  5,  Act  .Tunc  25,  1910,  30 

Stat,  at  Large,  826.  Stat,  at  Largo,  826. 


Violations  of  Interstate  Commerce  847 

women  and  girls,  receive  their  declarations,  establish 
their  identity,  and  ascertain  from  them  who  induced  them 
to  leave  their  native  countries,  respectively;  and  it  shall 
be  the  duty  of  said  Commissioner-General  of  Immigra- 
tion to  receive  and  keep  on  file  in  his  office  the  state- 
ments and  declarations  which  may  be  made  by  such  alien 
women  and  girls,  and  those  which  are  hereinafter  re- 
quired pertaining  to  such  alien  women  and  girls  engaged 
in  prostitution  or  debauchery  in  this  country,  and  to 
furnish  receipts  for  such  statements  and  declarations 
provided  for  in  this  act  to  the  persons,  respectively,  mak- 
ing and  filing  them. 

Every  person  who  shall  keep,  maintain,  control,  sup- 
port, or  harbor  in  any  house  or  place  for  the  purpose  of 
prostitution,  or  for  any  other  immoral  purpose,  any  alien 
woman  or  girl  within  three  years  after  she  shall  have 
entered  the  United  States  from  any  countiy,  party  to 
the  said  arrangement  for  the  suppression  of  the  white- 
slave traffic,  shall  file  with  the  Commissioner-General  of 
Immigration  a  statement  in  writing  setting  forth  the 
name  of  such  alien  woman  or  girl,  the  place  at  which 
she  is  kept,  and  all  facts  as  to  the  date  of  her  entiy  into 
the  United  States,  the  port  through  which  she  entered, 
her  age,  nationality,  and  parentage,  and  concerning  her 
procuration  to  come  to  this  country  within  the  knowledge 
of  such  person,  and  any  person  who  shall  fail  within 
thirty  days  after  such  person  shall  commerce  to  keep, 
maintain,  control,  support  or  harbor  in  any  house  or 
place  for  the  purpose  of  prostitution,  or  for  any  other 
immoral  purpose,  any  alien  woman  or  girl  within  three 
years  after  she  shall  have  entered  the  United  States 
from  any  of  the  countries,  party  to  the  said  arrange- 
ment for  the  suppression  of  the  white-slave  traffic,  to 
file  such  statement  concerning  such  alien  woman  or  girl 
with  the  Commissioner-General  of  Immigration,  or  who 
shall  knowingly  and  wilfully  state  falsely  or  fail  to  dis- 
close in  such  statement  any  fact  within  his  knowledge 


848  Criminal  Law 

or  belief  with  reference  to  tlie  age,  nationality,  or  par- 
entage of  any  such  alien  woman  or  girl,  or  concerning 
her  procuration  to  come  to  this  country,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  shall  be  pun- 
ished by  a  fine  of  not  more  than  two  thousand  dollars, 
or  by  imprisonment  for  a  term  not  exceeding  two  years, 
or  by  both  such  fine  and  imprisonment,  in  the  discretion 
of  the  court. 

In  any  prosecution  brought  under  this  section,  if  it 
appear  that  any  such  statement  required  is  not  on  file 
in  the  office  of  the  Commissioner-General  of  Immigration, 
the  person  whose  duty  it  shall  be  to  file  such  statement 
shall  be  presumed  to  have  failed  to  file  said  statement, 
as  herein  required,  unless  such  person  or  persons  shall 
prove  otherwise.  No  person  shall  be  excused  from  fur- 
nishing the  statement,  as  required  by  this  section,  on 
the  ground  or  for  the  reason  that  the  statement  so  re- 
quired by  him,  or  the  information  therein  contained, 
might  tend  to  criminate  him  or  subject  him  to  a  penalty 
or  forfeiture,  but  no  person  shall  be  prosecuted  or  sub- 
jected to  any  penalty  or  forfeiture  under  any  law  of 
the  United  States  for  or  on  account  of  any  transaction, 
matter,  or  thing,  concerning  which  he  may  tnithfully 
report  in  such  statement,  as  rcMinircd  l)y  the  ])rovisions 
of  this  section.^ 

INTERSTATE  RAILROAD  PASS 

§  1061.  Interstate  free  passes;  iUegal  use.  'I'liat  no 
conunon  carrier  siiljject  to  the  provisions  of  this  act  sliall, 
after  January  ],  1907,  directly  or  indirectly,  issue  or 
give  any  interstate  free  ticket,  free  ])ass,  or  free  trans- 
port;iti(»ii  I'oi-  ]);iss('iig('rs,  except  to  tlio  cmiiloyccs  and 
tlicir  raniiiics,  its  olhcers,  agents,  surgeons,  i)liysicians, 
and  attorneys  at  law;  to  ministers  of  religion,  ti'aveling 

G— Act    .luno    2r>,    lf)10,    30    Stat. 
at  Large,  81i0. 


Violations  of  Interstate  Commerce  849 

secretaries  of  railroad  Young  Men's  Christian  Associa- 
tions, inmates  of  hospitals  and  charitable  and  eleemosy- 
nary institutions,  and  persons  exclusively  engaged  in 
charitable  and  eleemosynary  work;  to  indigent,  destitute 
and  homeless  persons,  and  to  such  persons  when  trans- 
ported by  charitable  societies  or  hospitals  and  the  neces- 
sary agents  employed  in  such  transportation;  to  inmates 
of  the  National  Homes  or  State  Homes  or  Disabled  Vol- 
unteer Soldiers,  and  of  Soldiers'  and  Sailors'  Homes, 
inclliding  those  about  to  enter  and  those  returning  home 
after  discharge;  to  necessary  care  takers  of  live  stock, 
poultry,  milk,  and  fruit;  to  employees  on  sleeping  car 
express  cars,  and  to  linemen  of  telegraph  and  linemen 
of  telegraph  and  telephone  companies;  to  Railway  Mail 
Service,  employees,  postoffice  inspectors,  customs  in- 
spectors, and  immigration  inspectors;  to  news  boys  on 
trains,  baggage  agents,  witnesses  attending  any  legal  in- 
vestigation in  which  the  common  carrier  is  interested, 
persons  injured  in  wrecks  and  physicians  and  nurses  at- 
tending such  persons:  Provided,  That  this  provision 
shall  not  be  construed  to  prohibit  the  interchange  of 
passes  for  the  officers,  agents,  and  employees  of  common 
carriers,  and  their  families;  nor  to  jDrohibit  any  common 
carrier  from  carrying  passengers  free  with  the  object 
of  providing  relief  in  cases  of  general  epidemic,  pestil- 
ence, or  other  calamitous  visitation:  And  Provided 
further.  That  this  provision  shall  not  be  construed  to 
prohibit  the  privilege  of  passes  or  franks,  or  the  ex- 
change thereof  with  each  other,  for  the  officers,  agents, 
employees,  and  their  families  of  such  telegraph,  tele- 
phone and  cable  lines,  and  the  officers,  agents,  employees 
and  their  families  of  other  common  carriers  subject  to 
the  provisions  of  this  act:  Provided  further.  That  the 
term  ''employees"  as  used  in  this  paragraph  shall  in- 
clude furloughed,  pensioned,  and  superannuated  em- 
ployees, persons  who  have  become  disabled  or  infirm  in 
the  service  of  any  such  common  carrier;  and  the  term 

C.  L.— 54 


850  Criminal  Law 

"families"  as  used  in  this  paragraph  shall  include  the 
families  of  those  persons  named  in  this  proviso,  also 
the  families  of  persons  killed,  and  the  widows  during 
widowhood  and  minor  children  during  minority  of  per- 
sons who  died,  while  in  the  service  of  any  such  com- 
mon carrier.  Any  common  carrier  violating  this  pro- 
vision shall  be  deemed  guilty  of  a  misdemeanor  and  for 
each  offense,  on  conviction,  shall  pay  to  the  United  States 
a  penalty  of  not  less  than  one  hundred  dollars,  nor  more 
than  two  thousand  dollars,  and  any  person  other  than 
the  persons  excepted  in  this  provision,  who  uses  any 
such  interstate  free  ticket,  free  pass,  or  free  transporta- 
tion shall  be  subject  to  a  like  penalty.  Jurisdiction  of 
offenses  under  this  provision  shall  be  the  same  as  that 
provided  for  offenses  in  an  act  entitled  ''An  act  to  further 
regulate  commerce  with  foreign  nations  and  among  the 
States,"  approved  February  19,  1903,  and  any  amend- 
ment thereof.'^ 

FEUIT  SHIPMENTS 

§  1062.  The  standard  barrel  for  fruit  and  dry  commodi- 
ties: cranberry  barrel.  That  the  standard  barrel  for 
fiuits,  vegetables,  and  other  dry  commodities  other  than- 
cranberries  shall  be  of  the  following  dimensions  when 
measured  without  (lislculion  of  its  parts:  Lenglli  of 
stave,  twenty-eight  and  one-half  inches;  diameter  of 
heads,  seventeen  and  one-eighth  inches;  distance  between 
heads,  twenty-six  inches;  circumference  of  bulge,  sixty- 
four  liiclics,  outside  iiicusurcuicnt  ;  .mikI  tlu'  tliickucss  of 
staves  not  greater  tliaii  foui'-teiitlis  of  an  iucli:  Pro- 
vided, That  any  band  of  a  dilTereiit  form  liaviug  a  capac- 
ity of  seven  tliousaii<l  and  fifty-six  cubic  inches  sliall  l)e  a 
.stanil;ii-<l  hm-icl.  The  s1;iii(h-ir(i  hari-el  foi'  cranberries 
KJiall  Ih-  of  the  followiiiu'  (liineiisiiuis  when  measured  witli- 

7— Act  Congress  Feb.  17,  1917,  .'iO 
Stat,  nt  Lnrgc,  022. 


Violations  of  Interstate  Commerce  851 

out  distension  of  its  parts:  Length  of  staves,  twenty- 
eight  and  one-half  inches;  diameter  of  head,  sixteen  and 
one-forth  inches;  distance  between  lieads,  twenty-five  and 
one-fourth  inclies,  outside  measurement;  and  the  thick- 
ness of  staves  not  greater  than  four-tenths  of  an  inch.' 

§  1063.  Punishment  for  shipment  interstate,  fruits  be- 
low standard  barrel.  Tliat  it  shall  be  unlawful  to  sell, 
offer,  or  expose  for  sale  in  any  state,  territory,  or  the 
District  of  Columbia,  or  to  ship  from  any  state,  terri- 
tory, or  the  District  of  Columbia  or  to  a  foreign  country, 
a  barrel  containing  fruits  or  vegetables  or  any  other  dry 
commodity  of  less  capacity  than  the  standard  barrels 
defined  in  the  first  section  of  this  act,  or  subdivisions 
thereof,  known  as  the  third,  half,  and  three-quarters 
barrel,  and  any  person  guilty  of  a  wilful  violation  of  any 
of  the  provisions  of  this  act,  shall  be  deemed  guilty  of 
a  misdemeanor  and  be  liable  to  a  fine  not  to  exceed  five 
hundred  dollars,  or  imprisonment  not  to  exceed  six 
months,  in  the  court  of  the  United  States  having  juris- 
diction: Provided,  however.  That  no  barrel  shall  be 
deemed  below  standard  within  the  meaning  of  this  act 
when  shipped  to  any  foreign  country  and  constructed 
according  to  the  specifications  or  directions  of  the  foreign 
purchaser  if  not  constructed  in  conflict  with  the  laws  of 
the  foreign  country  to  which  the  same  is  intended  to  be 
shipped.^ 

§  1064.  Transporting  intoxicating  liquors  in  interstate 
commerce,  except  for  scientific  purposes.  That  whoever 
shall  order,  purchase,  or  cause  intoxicating  liquors  to  be 
transported  in  interstate  commerce,  except  for  scientific, 
sacramental,  medicinal,  and  mechanical  purposes,  into 
any  state  or  territory  the  laws  of  which  state  or  terri- 
tory prohibit  the  manufacture  or  sale  therein  of  intoxi- 

8— Sec.    1,    Act    March    4,    1915,  9— Sec.  2,  Act  March  4,  1915,  38 

38    Stat,    at   Large,    1186,  Stat,  at  Large,  1186. 


852  Criminal  Law 

eating  liquors  for  beverage  purposes  sliall  be  punished 
as  aforesaid:  Provided,  That  nothing  herein  shall  au- 
thorize the  shipment  of  liquor  into  any  state  contrary 
to  the  laws  of  such  state.^" 

PRIZE  FIGHTS 

§  1065.  Prize  fight  films,  interstate  transportation  there- 
of. That  it  shall  be  unlawful  for  any  person  to  de- 
posit or  cause  to  be  deposited  in  the  United  States  mails 
for  mailing  or  delivery,  or  to  deposit  or  cause  to  be  de- 
posited with  any  express  company  or  other  common 
carrier  for  carriage,  or  to  send  or  carry  from  one  state 
or  territory  of  the  United  States  or  the  District  of  Co- 
lumbia to  any  other  state  or  territory  of  the  United 
States  or  the  District  of  Columbia,  or  to  bring  or  to  cause 
to  be  brought  into  the  United  States  from  abroad,  any 
film  or  other  pictorial  representation  of  any  prize  fight 
or  encounter  of  pugilists,  under  whatever  name,  wliicli 
is  designated  to  be  used  or  may  be  used  for  purposes 
of  pu})lic  exhibition." 

§  1066.  Intent  to  prevent,  interfere,  or  obstruct  for- 
eign commerce.  Tliai  wliouver,  with  intent  to  prevent, 
interfere  witli,  or  obsti-uct  or  attempt  to  prevent,  inter- 
fere with  or  obstruct  the  exportation  to  foreign  countries 
of  articles  from  tlie  United  States  shall  injure  or  destroy, 
})y  fire  or  explosives,  sucli  artick'S  or  the  places  where 
they  may  be  while  in  sucii  foreign  commerce,  shall  be 
fined  not  more  than  ten  liiousand  dollars,  or  imprisoned 
not  more  tlinii  ten  years,  or  ])oth.^^ 

§  1067.  Larceny  of  interstate  shipment.  That  whoever 
.shall  unlaw  fully  hii'uk  llie  seal  ol'  .-iiiy  railroad  car  con- 

10— Sec.  5,  Act  March  :},  1!>17,  :5i>  112— Act   .June    Ifi,    1!)17,   39   Stat. 

StJit.   at   Lar^*',    lOOif.  at  Large,  221. 

11— Sec.  1,  Act  .Inly  .'.l.   1!M2,  I! 7 
Stat,   at    Large,   240. 


Violations  of  Interstate  Commerce  853 

taining  interstate  or  foreign  shipments  of  freight  or  ex- 
press, or  shall  enter  any  such  car  with  intent,  in  either 
case,  to  commit  larceny  therein;  or  whoever  shall  steal 
or  unlawfully  take,  carry  away,  or  conceal,  or  by  fraud 
or  deception  obtain  from  any  railroad  car,  station  house, 
platform,  depot,  steam  boat,  vessel,  or  wharf,  with  intent 
to  convert  to  his  own  use  any  goods  or  chattels  moving 
as,  or  which  are  a  part  of  or  which  constitute  an  inter- 
state or  foreign  shipment  of  freight  or  express,  or  shall 
buy,  or  receive,  or  have  in  his  possession  any  such  goods 
or  chattels,  knowing  the  same  to  have  been  stolen;  or 
whoever  shall  steal  or  shall  unlawfully  take,  carry  away, 
or  by  fraud  or  deception  obtain,  with  intent  to  convert 
to  his  own  use,  any  baggage  which  shall  have  come  into 
the  possession  of  any  common  carrier  for  transportation 
from  one  state  or  territory  or  the  District  of  Columbia 
to  another  state  or  territory  or  the  District  of  Columbia, 
or  to  a  foreign  country,  or  from  a  foreign  countiy  to 
any  state  or  territoiy  or  the  District  of  Columbia,  or  shall 
break  into,  steal,  take,  carry  away,  or  conceal  any  of 
the  contents  of  such  baggage,  or  shall  buy,  receive,  or 
have  in  his  possession  any  such  baggage  or  any  article 
therefrom  of  whatsoever  nature,  knowing  the  same  to 
have  been  stolen,  shall  in  each  case  be  fined  not  more 
than  five  thousand  dollars,  or  imprisoned  not  more  than 
ten  years,  or  both,  and  prosecutions  therefor  may  be 
instituted  in  any  district  wherein  the  crime  shall  have 
been  committed.  The  carrying  or  transporting  of  any 
such  freight,  express,  baggage,  goods,  or  chattels  from 
one  state  or  territoiy  or  the  District  of  Columbia  into 
another  state  or  territory  or  the  District  of  Columbia, 
knowing  the  same  to  have  been  stolen,  shall  constitute 
a  separate  offense  and  subject  the  offender  to  the  penal- 
ties above  described  for  unlawful  taking,  and  prosecu- 
tions therefor  may  be  instituted  in  any  district  into  which 
such  freight,  express,  baggage,  goods,  or  chattels  shall 


854  Criminal  Law 

have  been  removed  or  into  which  they  shall  have  been 
brought  by  such  offender.^^ 

§  1068.  Under  act  February  13,  1913,  conviction,  state 
court  a  bar  under  act.  That  nothing  in  this  act  shall 
be  held  to  take  away  or  impair  the  jurisdiction  of  the 
courts  of  the  several  states  under  the  laws  thereof;  and 
a  judgment  of  conviction  or  acquittal  on  the  merits  under 
the  laws  of  any  state  shall  be  a  bar  to  any  prosecution 
hereunder  for  the  same  act  or  acts.^* 

§  1069.  An  Act  to  punish  the  transportation  of  stolen 
motor  vehicles  in  interstate  or  foreign  commerce. 

Be  it  enacted  by  the  Senate  and  House  of  liepresenta- 
tives  of  the  United  States  of  America  in  congress  as- 
sembled, That  this  act  may  be  cited  as  the  National  Motor 
Vehicle  Theft  Act. 

Sec.  2.  That  when  used  in  this  act: 

(a)  The  term  ''motor  vehicle"  shall  include  an  auto- 
mobile, automobile  truck,  automobile  wagon,  motor  cycle, 
or  any  other  self-propdhnl  vc^hicle  not  designed  for  run- 
ning on  rails; 

(b)  The  term  "Interstate  or  foreign  commerce"  as 
used  ill  tills  act  shall  include  transportation  from  one 
state,  territoiy,  or  the  District  of  Columbia,  to  another 
state,  territory,  or  tlie  District  of  Columbia,  or  to  a  for- 
eign country,  or  from  a  foreign  country  to  any  state, 
territory,  or  the  District   of  Columbia. 

Sec.  3.  ^I'li.il  wliocvci-  shall  transport  or  cause  to  be 
transported  in  interstate  or  foreign  commerce  a  motor 
veliicle,  knowing  the  same  to  liave  ])een  stolen,  shall  be 
piiiiislie(|  by  a  line  of  n(»t  nioi'o  than  five  thousand  dol- 
lars, or  hy  ini])riso!iiiieiil  of  iml  iiioi-e  tiiaii  live  years, 
or  bojli. 

i;»— Spc.  ],  Act.  T'Vh.  13,  1013,  37  14— Roc.  2,  Art   F.-h.   13,  1913,  37 

Sffit.   nt    Laryo,   fi70.  Rtat.  670. 


Violations  of  Interstate  Commerce  855 

Sec.  4.  That  whoever  shall  receive,  conceal,  store, 
barter,  sell,  or  dispose  of  any  motor  vehicle,  moving  as, 
or  which  is  a  part  of,  or  which  constitutes  interstate 
or  foreign  commerce,  knowing  the  same  to  have  been 
stolen,  shall  be  punished  by  a  fine  of  not  more  than  five 
thousand  dollars,  or  by  imprisonment  of  not  more  than 
five  years,  or  both. 

Sec.  5.  That  any  person  violating  this  act  may  be 
punished  in  any  district  in  or  through  which  such  motor 
vehicle  has  been  transported  or  removed  by  such  offender. 

Received  by  the  President,  October  17,  1919.  41  Stat. 
325. 

(NOTE  BY  THE  DEPARTMENT  OF  STATE.— The 
foregoing  act  having  been  presented  to  the  President  of 
the  United  States  for  his  approval,  and  not  having  been 
returned  by  him  to  the  house  of  congress  in  which  it 
originated  within  the  time  prescribed  by  the  Constitu- 
tion of  the  United  States,  has  become  a  law  without  his 
approval.) 

§  1070.  Convictions  in  restraint  of  trade,  penalty. 
Every  contract,  combination  in  the  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce 
among  the  several  states,  or  with  foreign  nations,  is 
hereby  declared  to  be  illegal.  Every  person  who  shall 
make  any  such  contract  or  engage  in  any  such  combina- 
tion or  conspiracy,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished  by 
fine  not  exceeding  five  thousand  dollars,  or  by  imprison- 
ment not  exceeding  one  year,  or  by  both  said  punish- 
ments, in  the  discretion  of  the  court.^^ 

§  1071.  Monopolizing  or  attempting  to  do  so  of  com- 
merce among  the  states  or  foreign  nations,  unlawful, 
punishment.     Ever^^  person  who  shall  monopolize,  or  at- 

15_Sec.   1,  Act  July  2,   1890,   26 
Stat.  209. 


856  Crimi>j-al  Law 

tempt  to  monopolize,  or  combine  or  conspire  with  any 
other  person  or  persons,  to  monopolize  any  part  of  the 
trade  or  commerce  among  the  several  states,  or  with  for- 
eign nations,  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  on  conviction  thereof,  shall  be  punished  by  fine  not 
exceeding  five  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the 
discretion  of  the  court. ^® 

§  1072.  Introducing-  falsely  labeled  dairy  product  or 
food.  That  no  person  or  persons,  company  or  corpora- 
tion, shall  introduce  into  any  state  or  territoiy  of  the 
United  States  or  the  District  of  Columbia  from  any  other 
state  or  territoiy  of  the  United  States  or  the  District 
of  Columbia,  or  sell  in  the  District  of  Columbia  or  in 
any  territory  any  dairy  or  food  products  which  shall 
be  falsely  labeled  or  branded  as  to  the  state  or  territory 
in  which  they  are  made,  produced,  or  grown,  or  cause 
or  procure  the  same  to  be  done  by  others." 

That  if  any  person  or  persons  violate  the  provisions 
of  this  act,  either  in  person  or  through  another,  he  sliall 
be  guilty  of  a  misdemeanor  and  shall  be  punished  by  a 
fine  of  not  less  than  five  hundred  dollars,  nor  more  than 
two  thonsaiid  dollars;  and  that  the  jurisdiction  for  the 
prosecution  of  said  misdemeanor  shall  be  within  the  dis- 
trict of  the  United  States  court  in  which  it  is  committed.^* 

IS}  1073.  Refusal  to  testify  before  interstate  commerce 
commission,  penalty.  Xo  ])ers()n  sliall  be  excused  from 
al  tciKJiiiL;-  ;iti(i  tcsliryiiig  oi*  fi'oni  ])r()du('iiig  ])ooks,  papers, 
tariffs,  cniiti-acts,  agreements  niid  (lociuneiits  before  the 
Interstate?  (commerce  Commission,  or  in  obedience  to  the 
subpoen.'i  of  tlie  commission,  wlictlier  such  subpoena  be 

IG— Act    .Inly    2,    IKitn,    l:(5    Ht.-it.  l.S— Sec.   'J,    Act    .liilv    I,    1!)()12,   32 

209.  Hfjit.  032. 

17— Sec.   1,  .Inlv    1,   11(02,  32  Sfnt. 
632, 


Violations  of  Interstate  Commerce  857 

signed  or  issued  by  one  or  more  commissioners,  or  in 
any  cause  or  proceeding,  criminal  or  otherwise,  based 
upon  or  growing  out  of  any  alleged  violation  of  the 
act  of  congress,  entitled  "An  act  to  regulate  commerce," 
approved  Februaiy  4,  1887,  or  of  any  amendment  thereof 
on  the  ground  or  for  the  reason  that  the  testimony  or 
evidence,  documentaiy  or  otherwise,  required  of  him, 
may  tend  to  criminate  him  or  subject  him  to  a  penalty 
or  forfeiture.  But  no  person  shall  be  prosecuted  or  sub- 
jected to  any  penalty  of  forfeiture  for  or  on  account 
of  any  transaction,  matter  or  thing,  concerning  which 
he  may  testify,  or  produce  evidence,  documentary  or 
othenvise,  before  said  commission,  or  in  obedience  to 
its  subpoena,  or  the  subpoena  of  either  of  them,  or  in 
any  such  case  or  proceeding:  Provided,  That  no  per- 
son so  testifying  shall  be  exempt  from  prosecution  and 
punishment  for  perjuiy  committed  in  so  testifying.  Any 
person  who  shall  neglect  or  refuse  to  attend  and  testify, 
or  to  answer  any  lawful  inquiry,  or  to  produce  books, 
papers,  tariffs,  contracts,  agreements  and  documents,  if 
in  him  powder  to  do  so,  in  obedience  to  the  subpoena 
or  lawful  requirement  of  the  commission  shall  be  guilty 
of  an  offense  and  upon  conviction  thereof  by  a  court 
of  competent  jurisdiction  shall  be  punished  by  fine  not 
less  than  one  hundred  dollars,  nor  more  than  five  thou- 
sand dollars,  or  by  imprisonment  for  not  more  than  one 
year,  or  bj^  both  such  fine  and  imprisonment.^^ 

§  1074.  Illegal  transportation  of  insect  pests  in  inter- 
state commerce.  That  no  railroad,  steamboat,  express, 
stage,  or  other  transportation  company  shall  knowingly 
transport  from  one  state  or  territory  into  any  other  state 
of  territory,  or  from  the  District  of  Columbia  into  a  state 
or  territory,  or  from  a  state  or  territoiy  into  the  District 
of  Columbia,  or  from  a  foreign  country  into  the  United 

19— Act    Feb.    11.    1893,   27    Stat. 
443. 


858  Criminal  Law 

States,  the  gypsy  moth,  brown-tail  moth,  leopard  moth, 
plum  curculio,  hop  plant-louse,  boll  weevil,  or  any  of  them 
in  a  live  state,  or  other  insect  in  a  live  state  which  is  noto- 
riously injurious  to  cultivated  crops,  including  vegetables, 
field  crops,  bush  fruits,  orchard  trees,  forest  trees,  or 
shade  trees;  or  the  eggs,  pupae,  or  larvae  of  any  insect 
injurious  as  aforesaid,  except  when  shipped  for  scientific 
purposes  under  the  regulations  herein  after  provided 
for;  nor  shall  any  person  remove  from  one  state  or  ter- 
ritory into  another  state  or  territory,  or  from  a  foreign 
country  into  the  United  States,  or  from  a  state  or  terri- 
tory into  the  District  of  Columbia,  or  from  the  District 
of  Columbia  into  any  state  or  territory,  except  for  scien- 
tific purposes  under  the  regulations  hereinafter  provided 
for  the  gypsy  moth,  brown-tail  moth,  leopard  moth,  plum 
curculio,  hop  plant-louse,  boll  weevil,  or  any  of  them  in 
a  live  state,  or  other  insect  in  a  live  state  which  is  noto- 
riously injurious  to  cultivated  crops,  including  vege- 
tables, field  crops,  bush  fruits,  orchard  trees,  forest  trees, 
or  shade  trees;  or  the  eggs,  pupae,  or  larvae  of  any  in- 
sect injurious  as  aforesaid.^® 

§  1075.  Person  gTiilty  of  violating  section  1  of  this  act, 
May  3,  1905,  penalty.  That  any  person,  comi)any,  or 
c(n"i)()rati()n  who  shall  knowingly  violate  the  provisions 
of  section  1  of  this  act  shall,  for  each  oifense,  be  fined, 
upon  conviction  thereof,  not  more  than  five  thousand 
dollars,  or  iiii))i-isoiK'(l  at  hard  hil)()r  not  more  than  five 
years,  or  holh,  at  the  discrclioii  of  the  court.^^ 

§  1076.  Unlawful  to  manufacture  adulterated  food  or 
drug,  punishment.  Tli.il  it  sh.-iil  he  unlawful  for  any 
pci'son  lo  iiianuracl  uic  within  .•my  tciritorv  or  the  Dis- 
trict of  (V)luinl)ia  any  nrticlc  (»!'  I'o<mI  or  drug  whicli  is 
adultcr.'itcd   or  niishi-nndcd,   within   the  meaning  of  this 

20— Sec.  ],  Act  M.'ir.  :t.  1905,  3.3     21— Sec.  4,  Act  Mar.  3,  1905,  33 
Stat.  1209.  Rt.nt.  1270. 


Violations  of  Interstate  Commerce  859 

act;  and  any  person  who  shall  violate  any  of  the  pro- 
visions of  this  section  shall  be  guilty  of  a  misdemeanor, 
and  for  each  offense  shall,  upon  conviction  thereof,  be 
fined  not  to  exceed  five  hundred  dollars,  or  shall  be 
sentenced  to  one  year's  imprisonment,  or  both  such  fine 
and  imprisonment,  in  the  discretion  of  the  court,  and 
for  each  subsequent  offense  and  conviction  thereof  shall 
be  fined  not  less  than  one  thousand  dollars,  or  sentenced 
to  one  year's  imprisonment,  or  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the  court.^'^ 

§  1077.  Shipping  and  delivery  adulterated  drugs  and 
food  in  interstate  commerce,  punishment.  That  the  intro- 
duction into  any  state  or  territoiy  or  the  District  of 
Columbia  from  any  other  state  or  territory  or  the  Dis- 
trict of  Columbia,  or  from  any  foreign  country,  or  ship- 
ment to  any  foreign  country  of  any  article  of  food  or 
drugs  which  is  adulterated  or  misbranded,  within  the 
meaning  of  this  act,  is  hereby  prohibited;  and  any  per- 
son who  shall  ship  or  deliver  for  shipment  from  any 
state  or  territory  or  the  District  of  Columbia,  to  any 
other  state  or  territory  or  the  District  of  Columbia,  or  to  a 
foreign  country,  or  who  shall  receive  in  any  state  or 
territoiy  or  the  District  of  Columbia,  from  any  other 
state  or  territory  or  the  District  of  Columbia,  or  foreign 
country,  and  having  so  received,  shall  deliver,  in  original 
unbroken  packages,  for  pay  or  otherwise,  or  offer  to 
deliver  to  any  other  person,  any  such  article  so  adulter- 
ated or  misbranded  within  the  meaning  of  this  act,  or 
any  person  who  shall  sell  or  offer  for  sale  in  the  Dis- 
trict of  Columbia  or  the  territories  of  the  United  States 
any  such  adulterated  or  misbranded  foods  or  drugs,  or 
export  or  offer  to  export  the  same  to  any  foreign  coun- 
try, shall  be  guilty  of  a  misdemeanor,  and  for  such  of- 
fense be  fined  not  exceeding  two  hundred  dollars  for 

22— Sec.    1,    Act    June    30,    1906, 
34  Stat.  768. 


860  Criminal  Law 

the  first  offense,  and  upon  conviction  for  each  subse- 
quent offense  not  exceeding  three  hundred  dollars,  or 
be  imprisoned  not  exceeding  one  year,  or  both,  in  the 
discretion  of  the  court:  Provided,  That  no  article  shall 
be  deemed  misbranded  or  adulterated  within  the  pro- 
vision of  this  act  when  intended  for  export  to  any  foreign 
country  and  prepared  or  packed  according  to  the  speci- 
fications or  directions  of  the  foreign  purchaser  when 
no  substance  is  used  in  the  preparation  or  packing  there- 
of in  conflict  with  the  laws  of  the  foreign  country  to 
which  said  article  is  intended  to  be  shipped;  but  if  said 
article  shall  be  in  fact  sold  or  offered  for  sale  for  do- 
mestic use  or  consumption,  then  this  proviso  shall  not 
exempt  said  article  from  the  operation  of  any  of  the 
other  jDrovisions  of  this  act.^^ 

§  1078.  Regulations  prescribed  by  Secretary  of  Agricul- 
ture of  inspection  of  meat.  That  on  and  after  October  1, 
1906,  no  person,  firm,  or  corporation  shall  transport  or 
offer  for  transportation,  and  no  carrier  of  interstate  or 
foreign  commerce  shall  transport  or  receive  for  transpor- 
tation from  one  state  or  territory  or  the  District  of  Colum- 
bia to  any  other  state  or  territoiy  or  the  District  of  Co- 
lumbia, or  to  any  place  under  the  junsdiction  of  the 
United  States,  or  to  any  foreign  country,  any  carcasses 
or  parts  thereof,  meat,  or  meat  food  products  thereof 
which  have  not  been  inspected,  examined,  and  marked  as 
''Inspected  .ind  passed,"  in  accordance  with  the  tenns 
of  this  act  and  with  tiic  luU's  and  regulations  prescribed 
by  the  Secretary  of  Agriculture:  Provided,  that  all  meat 
and  meat  food  products  on  hand  on  October  1,  1906,  at 
establishments  where  inspection  has  not  been  maintained, 
or  which  liave  been  ins])ected  under  existing  law,  shall 
be  examined  and  lal)ele(l  nnder  such  rules  and  regulations 
as  the  Secretary  of  Agiicullnre  shall  |)i('scril)e,  and  then 

23— Sec.    2,    Act    .lunc    .'JO,    1900, 
34   Stat.   768. 


Violations  of  Interstate  Commerce  861 

shall  be  allowed  to  be  sold  in  interstate  or  foreign  .com- 
merce. 

That  no  person,  firm,  or  coiporation,  or  officer,  agent, 
or  employee  thereof,  shall  forge,  counterfeit,  simulate,  or 
falsely  represent,  or  shall  without  proper  authority  use, 
fail  to  use,  or  detach,  or  shall  knowingly  or  wrongfully 
alter,  deface,  or  destroy,  or  fail  to  use,  or  detach,  or  shall 
knowingly  or  wrongfully  alter,  deface,  or  destroy,  or  fail 
to  deface  or  destroy,  any  of  the  marks,  stamps,  tags, 
labels,  or  other  identification  devices  provided  for  in  this 
act,  or  in  and  as  directed  by  the  rules  and  regulations  pre- 
scribed hereunder  by  the  Secretary  of  Agriculture,  on  any 
carcasses,  parts  of  carcasses,  or  the  food  product,  or  con- 
tainers thereof,  subject  to  the  provisions  of  this  act,  or 
any  certificate  in  relation  thereto,  authorized  or  required 
by  this  act  or  by  the  said  rules  and  regulations  of  the  Sec- 
retary of  Agriculture. 

That  the  Secretary  of  Agiiculture  shall  cause  to  be 
made  a  careful  inspection  of  all  cattle,  sheep,  swine,  and 
goats  intended  and  offered  for  export  to  foreign  countries 
at  such  times  and  places,  and  in  such  manner  as  he  may 
deem  proper,  to  ascertain  whether  such  cattle,  sheep, 
swine,  and  goats  are  free  from  disease. 

And  for  this  purpose  he  may  appoint  inspectors  who 
shall  be  authorized  to  give  an  official  certificate  clearly 
stating  the  condition  in  which  such  cattle,  sheep,  swine, 
and  goats  are  found. 

And  no  clearance  shall  be  given  to  any  vessel  having 
on  board  cattle,  sheep,  swine,  or  goats  for  export  to  a 
foreign  country  until  the  owner  or  shipper  of  such  cattle, 
sheep,  swine,  or  goats  has  a  certificate  from  the  inspector 
herein  authorized  to  be  appointed,  stating  that  the  said 
cattle,  sheep,  swine,  or  goats  are  sound  and  healthy,  or 
unless  the  Secretary  of  Agriculture  shall  have  waived  the 
requirements  of  such  certificate  for  export  to  the  partic- 
ular country  to  which  such  cattle,  sheep,  swine,  or  goats 
are  to  be  exported. 


862  Ceiminal  Law 

And  for  this  purpose  lie  may  appoint  inspectors  who 
shall  be  authorized  to  give  an  official  certificate  stating 
the  condition  in  which  said  cattle,  sheep,  swine,  or  goats, 
and  the  meat  thereof,  are  found. 

And  no  clearance  shall  be  given  to  any  vessel  having 
on  board  any  fresh,  salted,  canned,  corned,  or  packed 
beef,  mutton,  pork,  or  goat  meat,  being  the  moat  of  animals 
killed  after  the  passage  of  this  act,  or  except  as  hereinbe- 
fore provided  for  export  to  and  sale  in  a  foreign  country 
from  any  port  in  the  United  States,  until  the  owner  or 
shipper  thereof  shall  obtain  from  an  inspector  appointed 
under  the  provisions  of  this  act  a  certificate  that  the  said 
cattle,  sheep,  swine,  and  goats  were  sound  and  healthy  at 
the  time  of  inspection,  and  that  their  meat  is  sound  and 
wholesome,  unless  the  Secretary  of  Agriculture  shall  have 
waived  the  requirements  of  such  certificate  for  the  coun- 
try to  which  said  cattle,  sheep,  swine,  and  goats  or  meats 
are  to  be  exported. 

That  the  inspectors  provided  for  herein  shall  be  au- 
thorized to  give  official  certificates  of  the  sound  and 
wholesome  condition  of  the  cattle,  sheep,  swine,  and 
goats,  their  carcasses  and  products  as  herein  described; 
and  one  copy  of  every  cerlificnic  granted  under  the  pro- 
visions of  this  aft  sIkiII  he  I'iKmI  in  llio  Deparlmoiil  of 
Agriculture,  another  copy  shall  be  delivered  to  the  owner 
or  sliipper,  and  when  the  cattle,  sheep,  swine,  and  goats 
oi-  tlicii-  carcasses  and  products  are  sent  n])road,  a  tliird 
copy  sli;ill  be  (IcJivci-cd  to  tlic  cliier  oriicci-  of  tlie  vessel 
on  which  tlie  sliij)m('iit  sliall  be  made. 

Tliat  no  person,  firm,  or  corjjoration  engaged  in  tlie 
interstate  commerce  of  meat  or  meat  prodiu'ts  shall  trans- 
port or  offer  for  transjxtit.'ilion,  sell  of  olTcr  to  sell  any 
sucli  meat  or  meat  products  in  any  state  or  territory  or 
in  till'  District  of  r.V)luin])ia  or  any  place  under  tlie  juris- 
dicti<tii  (if  the  United  States,  other  than  in  the  state  or 
tcrritoi-y   or   in    the   Disti'ict   of  rolumbia   or  any  place 


Violations  of  Interstate  Commerce  863 

under  the  jurisdiction  of  the  United  States  in  which  the 
slaughtering,  packing,  canning,  rendering,  or  other  simi- 
lar establishment  owned,  leased,  or  operated  by  said  firm, 
person,  or  corporation  is  located  unless  and  until  said  per- 
son, firm,  or  corporation  shall  have  complied  with  all 
of  the  provisions  of  this  act. 

That  any  person,  firm,  or  corporation,  or  any  officer  or 
agent  of  any  such  person,  firm,  or  corporation,  who  shall 
violate  any  of  the  provisions  of  this  act  shall  be  deemed 
guilty  of  a  misdemeanor  and  shall  be  punished  on  con- 
viction thereof  by  a  fine  of  not  exceeding  ten  thousand 
dollars  or  imprisonment  for  a  period  of  not  more  than 
two  years,  or  by  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  court. 

That  any  person,  firm,  or  corporation,  or  any  agent  or 
employee  of  any  person,  firm,  or  corporation  who  shall 
give,  pay,  or  offer,  directly  or  indirectly,  to  any  inspector, 
deputy  inspector,  chief  inspector,  or  any  other  officer  or 
employee  of  the  United  States  authorized  to  perform  any 
of  the  duties  prescribed  by  this  act  or  by  the  rules  and 
regulations  of  the  Secretary  of  Agriculture  any  money  or 
other  thing  of  value,  with  intent  to  influence  said  in- 
spector, deputy  inspector,  chief  inspector,  or  other  officer 
or  employee  of  the  United  States  in  the  discharge  of  any 
duty  herein  provided  for,  shall  be  deemed  guilty  of  a 
felony,  and  upon  conviction  thereof,  shall  be  punished  by 
a  fine  not  less  than  five  thousand  dollars  nor  more  than 
ten  thousand  dollars  and  by  imprisonment  not  less  than 
one  year  nor  more  than  three  years;  and  any  inspector, 
deputy  inspector,  chief  inspector,  or  other  officer  or  em- 
ployee of  the  United  States  authorized  to  perform  any 
of  the  duties  prescribed  by  this  act  who  shall  accept  any 
money,  gift,  or  other  thing  of  value  from  any  person, 
firm,  or  corporation,  or  officers,  agents,  or  employees 
thereof,  given  with  intent  to  influence  his  official  action, 
or  who  shall  receive  or  accept  from  any  person,  firm,  or 


864  Criminal  Law 

corporation  engaged  in  interstate  or  foreign  commerce 
any  gift,  money  or  other  thing  of  value  given  with  any 
purpose  or  intent  whatsoever,  shall  be  deemed  guilty  of 
a  felony  and  sliall,  upon  conviction  thereof,  be  summarily 
discharged  from  office  and  shall  be  punished  by  a  fine 
not  less  than  one  thousand  dollars  nor  more  than  ten 
thousand  dollars  and  by  imprisonment  not  less  than  one 
year  nor  more  than  three  years. 

That  the  provisions  of  this  act  requiring  inspection 
to  be  made  by  the  Secretary  of  Agriculture  shall  not 
apply  to  animals  slaughtered  by  any  farmer  on  the  farm 
and  sold  and  transported  as  interstate  or  foreign  com- 
merce, nor  to  retail  butchers  and  retail  dealers  in  meat 
and  meat  food  products,  supplying  their  customers :  Pro- 
vided, That  if  any  person  shall  sell  or  offer  for  sale  or 
transportation  for  interstate  or  foreign  commerce  any 
meat  or  meat  food  products  which  are  diseased,  unsound, 
unhealthful,  unwholesome,  or  otherwise  unfit  for  human 
food,  knowing  that  such  meat  food  products  are  intended 
for  human  consumption,  he  shall  be  guilty  of  a  misde- 
meaiioi',  mid  on  conviction  thereof  shall  be  punished  by  a 
fine  not  exceeding  one  thousand  dollars  or  by  im]irison- 
ment  for  a  period  of  not  exceeding  one  year,  or  by  both 
such  fine  and  imprisonment:  Provided,  also.  That  the 
Secretary  of  Agriciillurc  is  authorized  to  maintain  the 
inspection  in  lliis  act  ])i-ovi(led  for  at  any  slaughtering, 
meat-canning,  salting,  ])acking,  rendering,  oi'  similar  es- 
tablishment notwithstanding  this  exceplion,  and  ilial  ilie 
persons  operating  the  same  may  be  retail  butchers  and 
retail  deahM's  or  fai-niers;  and  where  the  Secretary  of  Ag- 
i-icnitnrc  sliall  establish  such  inspection  tlien  the  pro- 
visions of  this  act  shall  apjily  notwithstanding  this  ex- 
ception. 

And  the  Secrc^tary  ol'  Ag|-i<-nlt  arc  shall,  in  his  animal 
estimates  made  to  (V)ngress,  siihniil  a  stalcniciil  in  de- 
tail, showing  till'  iiiiihIm'i-  of  pci-soiis  eini)loyed  in  such 
inspections  and  the  sahifv  oi-  jtcr  diem  paid  to  each,  to- 


Violations  of  Interstate  Commerce  865 

gether  with  the  contingent  expenses  of  such  inspectors 
and  where  they  have  been  and  are  employed.^* 

§  1079.  Adulterated  or  misbranded  insecticides  forbid- 
den shipment — Penalty.  That  the  introduction  into  any 
state  or  territory  or  the  District  of  Columbia  from  any 
state  or  territory  or  the  District  of  Columbia,  or  from 
any  foreign  countiy,  or  by  shipment  to  any  foreign  coun- 
tiy,  of  any  insecticide,  or  Paris  green,  or  lead  arsenate,  or 
fungicide  which  is  adulterated  or  misbranded  within  the 
meaning  of  this  act  is  hereby  prohibited;  and  any  person 
who  shall  ship  or  deliver  for  shipment  from  any  state  or 
territory  or  the  District  of  Columbia  to  any  other  state 
or  territory  or  the  District  of  Columbia,  or  to  a  foreign 
country,  or  who  shall  receive  in  any  state  or  territory 
or  the  District  of  Columbia  from  any  other  state  or  terri- 
tory or  the  District  of  Columbia,  or  foreign  country,  and 
having  so  received,  shall  deliver,  in  original  unbroken 
packages,  for  pay  or  otherwise,  or  offer  to  deliver,  to  any 
other  person,  any  such  article  so  adulterated  or  mis- 
branded within  the  meaning  of  this  act,  or  any  person 
who  shall  sell  or  offer  for  sale  in  the  District  of  Columbia 
or  any  territory  of  the  United  States  any  such  adulter- 
ated or  misbranded  insecticide,  or  Paris  green,  or  lead 
arsenate,  or  fungicide,  or  export  or  offer  to  export  the 
same  to  any  foreign  country,  shall  be  guilty  of  a  misde- 
meanor, and  for  such  offense  be  fined  not  exceeding  two 
hundred  dollars  for  the  first  offense,  and  upon  conviction 
for  each  subsequent  offense  not  exceeding  three  hundred 
dollars,  or  be  imprisoned  not  exceeding  one  year,  or  both, 
in  the  discretion  of  the  court;  Provided,  That  no  article 
shall  be  deemed  misbranded  or  adulterated  within  the 
provision  of  this  act  when  intended  for  export  to  any 
foreign  country  and  prepared  or  packed  according  to  the 
specifications  or  directions  of  the  foreign  purchaser;  but 


24— Act   Mar.    4, 

1907, 

34    Stat, 

1262-1265. 

C.  L.— 55 

866  Crimixal  Law 

if  said  articles  shall  be  in  fact  sold  or  offered  for  sale  for 
domestic  use  or  consumption,  then  this  proviso  shall  not 
exempt  said  article  from  the  operation  of  any  of  the 
other  provisions  of  this  act.*"* 

§  1080.  Officers  of  common  carriers  engaged  in  inter- 
state commerce  must  make  monthly  reports  accidents. 
That  it  shall  be  the  duty  of  the  general  manager,  super- 
intendent, or  other  proper  officer  of  every  common  car- 
rier engaged  in  interstate  or  foreign  commerce  by  rail- 
road to  make  to  the  Interstate  Commerce  Commission,  at 
its  office  in  Washington,  District  of  Columbia,  a  monthly 
report,  under  oath,  of  all  collisions,  derailments,  or  other 
accidents  resulting  in  injuiy  to  persons,  equipment,  or 
roadbed  arising  from  the  operation  of  such  railroad  un- 
der such  rules  and  regulations  as  may  be  prescribed  by 
the  said  commission,  which  report  shall  state  the  nature 
and  causes  thereof  and  the  circumstances  connected 
therewith :  Provided,  That  hereafter  all  said  carriers  shall 
be  relieved  from  the  duty  of  reporting  accidents  in  their 
annual  financial  and  operating  reports  made  to  the  com- 
mission.^^ 

§  1081.  Officers  of  common  carriers  must  make  report 
— For  failure,  punishment.  That  any  coninion  carrier 
failing  to  liiake  such  report  within  thirty  days  after  the 
end  of  any  month  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  by  a  court  of  com- 
petent jurisdiction  shall  be  punished  by  a  line  of  not  more 
than  one  hundred  dollars  for  each  and  every  offense  and 
for  eveiy  day  during  wliicli  it  shall  fail  to  make  such 
report  after  the  tinie  licicin  specified  for  making  the 
same.'^' 

2.'j— 8.T.  1!,  A<t   Apr.  L'C),   IDlii,  .u;  27— Sec.  2,  May  (i,  1910,  36  Stat. 

.Stat.   3.31.  350. 

26— Sec.   1,   Act   May   6,   1910,  36 
Stat.  350. 


Violations  of  Interstate  Commerce  867 

§  1082.  Report  by  common  carrier  if  rendered  not  to  be 
used  as  evidence.  That  neither  said  report  nor  any  report 
of  said  investigation  nor  any  part  thereof  shall  be  ad- 
mitted as  evidence  or  used  for  any  purpose  in  any  suit  or 
action  for  damages  growing  out  of  any  matter  mentioned 
in  said  report  or  investigation.'^^ 

§  1083.  Punishment  for  refusal  to  testify  to  make  false 
entry  in  report — Wilfully  mutilate — Documentary  evi- 
dence; or  a  corporation  failing-  to  file  report  before  trades 
commission.  That  any  person  who  shall  neglect  or  refuse 
to  attend  and  testify,  or  to  answer  any  lawful  inquiry, 
or  to  produce  documentary  evidence,  if  in  his  power  to 
do  so,  in  obedience  to  the  subpoena  or  lawful  requirement 
of  the  commission,  shall  be  guilty  of  an  offense  and  upon 
conviction  thereof  by  a  court  of  competent  jurisdiction 
shall  be  punished  by  a  fine  of  not  less  than  $1,000  nor 
more  than  $5,000,  or  by  imprisonment  not  more  than  one 
year,  or  by  both  such  fine  and  imprisonment. 

Any  person  who  shall  wilfully  make,  or  cause  to  be 
made,  any  false  entiy  or  statement  of  fact  in  any  report 
required  to  be  made  under  this  act,  or  who  shall  wilfully 
make  or  cause  to  be  made,  any  false  entry  in  any  account, 
record  or  memorandum  kept  by  any  corporation  subject 
to  this  act,  or  who  shall  wilfully  neglect  or  fail  to  make, 
or  to  cause  to  be  made,  full,  tnie,  and  correct  entries  in 
such  accounts,  records,  or  memoranda  of  all  facts  and 
transactions  appertaining  to  the  business  of  such  coi^do- 
ration,  or  who  shall  wilfully  remove  out  of  any  jurisdic- 
tion of  the  United  States,  or  wilfully  mutilate,  alter,  or  by 
any  other  means  falsify  any  documentary  evidence  of 
such  corporation,  or  who  shall  wilfully  refuse  to  submit 
to  the  commission  or  to  any  of  its  authorized  agents,  for 
the  purpose  of  inspection  and  taking  copies,  any  docu- 
mentary evidence  of  such  corporation  in  his  possession 

28— Sec.  4,  Act   May  6,   1910,  36 
Stat.  351. 


868  Criminal  Law 

or  within  his  control,  shall  be  deemed  guilty  of  an  of- 
fense against  the  United  States,  and  shall  be  subject, 
upon  conviction  in  any  court  of  the  United  States  of  com- 
petent jurisdiction,  to  a  fine  of  not  less  than  $1,000  nor 
more  than  $5,000,  or  to  imprisonment  for  a  term  of  not 
more  than  three  years,  or  to  both  such  fine  and  imprison- 
ment. 

If  any  corporation  required  by  this  act  to  file  any  an- 
nual or  special  report  shall  fail  so  to  do  within  the  time 
fixed  by  the  commission  for  filing  the  same,  and  such 
failure  shall  continue  for  thirty  days  after  notice  of  such 
default,  the  corporation  shall  forfeit  to  the  United  States 
the  sum  of  $100  for  each  and  eveiy  day  of  the  continu- 
ance of  such  failure,  which  forfeiture  shall  be  payable 
into  the  treasury  of  the  United  States,  and  shall  be  recov- 
erable in  a  civil  suit  in  the  name  of  the  United  States 
brought  in  the  district  where  the  corporation  has  its 
principal  office  or  in  any  district  in  which  it  shall  do 
business.  It  shall  be  the  duty  of  the  various  district 
attorneys,  under  the  direction  of  the  attorney-general  of 
the  United  States,  to  prosecute  for  the  recoveiy  of  for- 
feitures. The  costs  and  expenses  of  such  prosecution 
shall  be  paid  out  of  the  appropriation  for  the  expenses 
of  llie  courts  of  the  United  States. 

Any  officer  or  emi)loyoo  of  the  conunission  who  shall 
make  public  any  information  obtained  by  the  conunission 
without  its  authority,  unless  directed  by  a  court,  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  upon  conviction 
tliereof,  shall  be  punished  by  a  fine  not  exceeding  $5,000, 
or  })y  iniijrisoiiiucHt  not  exceeding  one  year,  or  by  fine 
and  imprisonniciil,  in  the  discretion  of  the  court.^® 

§  1084.  Violations  of  anti  trust  law  of  corporation  ap- 
ply to  its  officers  and  agents — All  are  punished.  That 
whenever  a  corporation   shall   violate  any  of  the  penal 

29— Sec.    ]0,    Act    Rf'pt.   2C>,    1914, 
38  Stfit.  72.'?. 


Violations  of  Interstate  Commerce  869 

provisions  of  the  anti  trust  laws,  such  violation  shall  be 
deemed  to  be  also  that  of  the  individual  directors,  officers, 
or  agents  of  such  corporation  who  shall  have  authorized, 
ordered,  or  done  any  of  the  acts  constituting  in  whole  or 
in  part  such  violation,  and  such  violation  shall  be  deemed 
a  misdemeanor,  and  upon  conviction  thereof  of  any  such 
director,  officer,  or  agent,  he  shall  be  punished  by  a  fine 
of  not  exceeding  $5,000  or  by  imprisonment  for  not  ex- 
ceeding one  year,  or  by  both,  in  the  discretion  of  the 
court.'" 

§  1085.  Secretary  of  Agriculture  may  demand  to  in- 
spect and  grade  grains;  may  also  revoke  license  after 
opportunity  has  been  given  of  hearing.  That  the  Secre- 
tary of  Agriculture  may  issue  a  license  to  any  person, 
upon  presentation  to  him  of  satisfactory  evidence  that 
such  person  is  competent,  to  inspect  and  grade  grain 
and  to  certify  the  grades  thereof  for  shipment  or  delivery 
for  shipment  in  interstate  or  foreign  commerce,  under  this 
act  and  the  rules  and  regulations  prescribed  thereunder. 
No  person  authorized  or  employed  by  any  state,  county, 
city,  town,  board  of  trade,  chamber  of  commerce,  corpo- 
ration, society,  partnership,  or  association  to  inspect  or 
grade  grain  shall  certify,  or  otherwise  state  or  indicate  in 
writing,  that  any  grain  for  shipment  or  deliveiy  for  ship- 
ment in  interstate  or  foreign  commerce,  which  has  been 
inspected  or  graded  by  him,  or  by  any  person  acting  un- 
der his  authority,  is  of  one  of  the  grades  of  the  official 
grain  standards  of  the  United  States,  unless  he  holds  an 
unsuspended  and  unrevoked  license  issued  by  the  Secre- 
tary of  Agriculture:  Provided,  That  in  any  state  which 
has,  or  which  may  hereafter  have  a  state  grain  inspection 
department  established  by  the  laws  of  such  state,  the  Sec- 
retary of  Agriculture  shall  issue  licenses  to  the  persons 
duly  authorized  and  employed  to  inspect  and  grade  grain 

30— Sec.    14,    Act    Oct.    15,    1914, 
38  Stat.  736. 


870  Criminal  Law 

under  the  laws  of  such  state.  The  Secretary  of  Agricul- 
ture may  suspend  or  revoke  any  license  issued  by  him  un- 
der this  act  whenever,  after  opportunity  for  hearing  has 
been  given  to  the  licensee,  the  Secretary  shall  determine 
that  such  licensee  is  incompetent  or  has  knowingly  or 
carelessly  graded  grain  improperly  or  by  any  other  stand- 
ard than  is  authorized  under  this  act,  or  has  issued  any 
false  certificate  of  grade,  or  has  accepted  any  money  or 
other  consideration,  directly  or  indirectly,  for  any  neglect 
or  improper  performance  of  duty,  or  has  violated  any  pro- 
vision of  this  act  or  of  the  rules  and  regulations  made 
hereunder. 

Pending  investigation  the  Secretary  of  Agriculture, 
whenever  he  deems  necessary,  may  suspend  a  license  tem- 
porarily without  hearing:  Provided  further.  That  no  per- 
son licensed  by  the  Secretary  of  Agriculture  to  inspect 
or  grade  grain  or  employed  by  him  in  carrying  out  any  of 
the  provisions  of  this  act  shall,  during  the  term  of  such 
license  or  employment,  be  interested,  financially  or  other- 
wise, directly  or  indirectly,  in  any  grain  elevator  or  ware- 
house, or  in  the  merchandising  of  grain,  nor  shall  he  be 
in  the  employment  of  any  person  or  coiporation  owning 
or  operating  any  grain  elevator  or  warehouse. 

The  Secretary  of  Agricultui'e  shall  require  every  in- 
spector licensed  under  this  ad  to  keep  complete  and  cor- 
i-('C'l  records  of  all  grain  graded  ;iiid  iiis})ecled  by  him 
and  to  make  reports  to  tlie  Secretary  of  Agriculture,  in 
siicli  I'oniis  and  at  sucii  times  as  lie  may  r('(|uire,  showing 
the  plac<'  of  iiispeclioii,  the  date  of  iiis])eet  ion,  th(!  name 
of  the  elevator  or  warehouse,  if  any,  to  which  the  grain 
was  delivei-ed  or  from  which  it  was  shipj)ed,  the  kind  of 
grain,  the  quantity  of  each  kind,  the  grade  thereof,  and 
such  other  information  as  the  Secretaiy  of  Agriculture 
may  deem  necessary.  The  Secretary  of  Agriculture,  on 
each  first  "^PucKday  in  .laiiuaiy  and  each  first  Tuesday  in 
.Inly  of  each  year  shall  niahc  ))ulilication  of  a  sun  unary  or 
>ncli  facts  as  are  ascertained,  showing  in  as  gi'eat  detail  as 


\^IOT.ATIONS    OF    INTERSTATE    COMMERCE  871 

possible  all  the  facts,  including  a  summary  as  to  the 
amount  and  grade  of  grain  delivered  to  the  elevator  or 
warehouse  and  the  amount  and  grade  of  grain  delivered 
from  such  elevator  or  warehouse,  and  the  estimated 
amount  received  on  sample  or  type  by  such  elevator  or 
warehouse,  and  the  estimated  amount  delivered  therefrom 
on  sample  or  type.^^ 

§  1086.    No  ^ain  shall  be  shipped  in  interstate  com- 
merce unless  inspected — Selling  and  offering  for  sale,  etc. 

That  whenever  standards  shall  have  been  fixed  and  es- 
tablished under  this  act  for  any  grain,  no  person  there- 
after shall  ship  or  deliver  for  shipment  in  interstate  or 
foreign  commerce  any  such  grain  which  is  sold,  offered 
for  sale,  or  consigned  for  sale  by  grade  unless  the  grain 
shall  have  been  inspected  and  graded  by  an  inspector 
licensed  under  this  act  and  the  grade  fixed  therefor  in  the 
official  grain  standards  of  the  United  States:  Provided, 
That  any  person  may  sell,  offer  for  sale,  or  consign  for 
sale,  ship  or  deliver  for  shipment  in  interstate  or  foreign 
commerce  any  such  grain  by  sample  or  type,  or  under 
any  name,  description,  or  designation  which  is  not  false 
or  misleading,  and  which  name,  description,  or  designa- 
tion does  not  include  in  whole  or  in  part  the  terms  of 
any  official  grain  standard  of  the  United  States:  Pro- 
vided further,  that  any  such  grain  sold,  offered  for  sale, 
or  consigned  for  sale  by  grade  may  be  shipped  or  de- 
livered for  shipment  in  interstate  or  foreign  commerce 
without  inspection  at  point  of  shipment  by  an  inspector 
licensed  under  this  act,  to  or  through  any  place  at  which 
an  inspector  licensed- under  this  act,  to  or  through  any 
place  at  which  an  inspector  licensed  under  this  act  is 
located,  subject  to  be  inspected  by  a  licensed  inspector  at 
the  place  to  which  shipped  or  at  some  convenient  point 
through  which  shipped  for  inspection,  which  inspection 

31— See.  7,  Act  Aug.  11,  1016,  39 
Stat.  484. 


872  Criminal  Law 

shall  be  under  such  rules  and  regulations  as  the  Secre- 
tary of  Agriculture  shall  prescribe,  and  subject  further 
to  the  right  of  appeal  from  such  inspection,  as  provided 
in  section  6  of  this  act:  And  provided  further.  That  any- 
such  grain  sold,  offered  for  sale,  or  consigned  for  sale  by 
any  of  the  grades  fixed  therefor  in  the  official  grain 
standards  may,  upon  compliance  with  the  rules  and  regu- 
lations prescribed  by  the  Secretary  of  Agriculture,  be 
shipped  in  interstate  or  foreign  commerce  without  inspec- 
tion from  a  place  at  which  there  is  no  inspector  licensed 
under  this  act  to  a  place  at  which  there  is  no  such  in- 
spector, subject  to  the  right  of  either  i^arty  to  the  trans- 
action to  refer  any  dispute  as  to  the  grade  of  the  grain  to 
the  Secretary  of  Agriculture,  who  may  determine  the  true 
grade  thereof.  No  person  shall  in  any  certificate  or  in 
any  contract  or  agreement  of  sale  or  agreement  to  sell  by 
grade,  either  oral  or  written,  involving,  or  in  any  invoice 
or  bill  of  lading  or  other  shipping  document  relating  to, 
the  shipment  or  delivery  for  shipment,  in  interstate  or 
foreign  commerce,  of  any  grain  for  which  standards  shall 
have  been  fixed  and  established  under  this  act,  describe, 
or  in  any  way  refer  to,  any  of  such  grain  as  being  of  any 
grade  other  than  a  grade  fixed  therefor  in  the  official 
grain  standards  of  the  United  States.^* 

§  1087.  Violation  act  August  11,  1916,  including  sec- 
tions 4  and  7  of  act — Punishment.  Any  person  who  shall 
knowingly  violate  any  of  the  provisions  of  sections  4  or 
7  of  this  act  [Sees.  108;'),  108G],  or  any  inspectors  licensed 
under  this  act  who  shall  knowingly  inspect  or  grade  im- 
properly any  grain  which  has  becH  shipped  or  delivered 
foe  sliipnicnt  in  interstate  or  foreign  commerce,  or  shall 
knowin^^ly  give  any  false  cerlificaie  of  grade,  or  sliall 
accept  money  or  other  considci'ntion,  dii'eclly  or  indi- 
rectly, lor  ;iny  iic^dccl  or  ini))roj)('r  jx'i'roi'ui.'iiicc  of  duty, 

.32— Sor.  4,  Act  An^.   11,   HtlC,  :;!) 
Htnt.    483. 


Violations  of  Interstate  Commerce  873 

and  any  person  who  shall  improperly  influence  or  attempt 
to  improperly  influence  any  such  inspector  in  the  per- 
formance of  his  duty,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  fined  not  more  than 
$1,000,  or  be  imprisoned  not  more  than  one  year,  or  both.^' 

§  1088.  Interfering-  with  the  duties  of  an  officer  or  em- 
ployee of  Department  of  Agriculture — Punishment.  That 
every  person  who  forcibly  assaults,  resists,  impedes,  or 
interferes  with  any  officer  or  employee  of  the  United 
States  Department  of  Agriculture  in  the  execution  of 
any  duties  authorized  to  be  performed  by  this  act  or  the 
rules  and  regulations  made  hereunder  shall,  upon  convic- 
tion thereof,  be  fined  not  more  than  $1,000,  or  be  impris- 
oned not  more  than  one  year,  or  both.^* 

§  1089.  Forging-,  counterfeiting,  etc.  license  of  Secre- 
tary of  Agriculture  and  violating  section  8  of  act  August 
11,  1916.  That  every  person  who  shall  forge,  alter,  coun- 
terfeit, simulate,  or  falsely  reiDresent,  or  shall  w^ithout 
proper  authority  use,  any  license  issued  by  the  Secretary 
of  Agriculture  under  this  act,  or  who  shall  violate  or  fail 
to  comply  with  any  provision  of  section  8  (that  is,  the 
rules  and  regulations  of  the  Secretary  of  Agriculture)  of 
this  act,  or  who  shall  issue  or  utter  a  false  or  fraudulent 
receipt  or  certificate,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  fined  not 
more  than  $500  or  imprisoned  not  more  than  six  months, 
or  both,  in  the  discretion  of  the  court.^^ 

§  1090.  Lime  barrels  must  be  marked,  stenciled  and 
branded.  That  it  shall  be  unlawful  for  any  person  to  sell 
or  offer  for  sale  lime  imported  in  barrels  from  a  foreign 
country,  or  to  sell  or  offer  for  sale  lime  in  barrels  for  ship- 

33— Sec.  9,  Act  Aug.  11,  1916,  39  35— Sec.   30,   Act   Aug.   11,    1916. 

Stat.   485.  39  Stat.  490. 

34— See.   10,   Act  Aug.    11,    1916, 
39  Stat.  485. 


874  Criminal,  Law 

meiit  from  any  state  or  territoiy,  or  the  District  of  Co- 
lumbia, to  any  other  state  or  territory  or  the  District  of 
Columbia,  unless  there  shall  be  stenciled  or  othei*wise 
clearly  marked  on  one  or  both  heads  of  the  small  barrel 
the  figures  "180  lbs.  net"  and  on  the  large  barrel  the 
figures  **280  lbs.  net"  before  the  importation  or  shipment, 
and  on  either  barrel  in  addition  the  name  of  the  manu- 
facturer of  the  lime  and  where  manufactured,  and,  if  im- 
ported, the  name  of  the  countiy  from  which  it  is  im- 
ported.^® 

§  1091.  Lime  sold  in  interstate  or  foreign  commerce  in 
less  capacity  than  standard  barrel,  how  marked.  That 
when  lime  is  sold  in  interstate  or  foreign  commerce  in 
containers  of  less  capacity  than  the  standard  small  bar- 
rel, it  shall  be  sold  in  fractional  parts  of  said  standard 
small  barrel,  and  the  net  weight  of  lime  contained  in 
such  container  shall  be  stenciled  or  otherwise  be  clearly 
marked  tliereon,  together  with  the  name  of  the  manu- 
facturer thereof,  and  the  name  of  the  brand,  if  any, 
under  which  it  is  sold,  and,  if  imported,  the  name  of  the 
conntry  from  whicli  it  is  imported.^'' 

§  1092.  Rules  and  regulations  allow  variations.  That 
the  rules  and  regulations  for  the  enforcement  of  this 
act  not  inconsistent  with  the  pi'ovisions  of  the  act,  sliall 
be  ni.'idc  by  llic  director  of  llic  P)U1('<mu  of  Standards 
and  nj)i)r()ved  by  the  Secretary  of  Connnerce,  and  that 
such  rules  and  regulations  shall  include  roasonablo  vari- 
ations or  tolerances  which  in;iy  he  nllowcd.^^ 

i^  1093.  Importer  selling  imported  article  at  a  price 
substantially  less  than  the  actual  market  value  in  United 
States — Punishment.     Thai   it  shall  he  unlawful  for  any 

36— Sit.    L',  Act     Anj,'.    2:\,    1i»ir.,  38— Sec     1,    A.I     Aii^'.    'J;;.     lOMi, 

.'{9  Stnt.  530.  :!!)  st.-it.  r,:\\. 

37— Hoc.    .'{,  Act     Aii«.    2:\,    191(1, 
30  Stat.  mo. 


Violations  of  Interstate  Commerce  875 

person  importing  oi-  assisting  in  importing  any  articles 
from  any  foreign  comitry  into  the  United  States,  com- 
monly and  systematically  to  import,  sell  or  cause  to  be 
imported  or  sold  such  articles  within  the  United  States 
at  a  price  substantially  less  than  the  actual  market 
value  or  wholesale  price  of  such  articles,  at  the  time 
of  exportation  to  the  United  States,  in  the  principal 
markets  of  the  country  of  their  production,  or  of  other 
foreign  countries  to  which  they  are  commonly  exported 
after  adding  to  such  market  value  or  wholesale  price, 
freight,  duty,  and  other  charges  and  expenses  neces- 
sarily incident  to  the  importation  and  sale  thereof  in 
the  United  States:  Provided,  That  such  act  or  acts  be 
done  with  the  intent  of  destroying  or  injuring  any  in- 
dustry in  the  United  States,  or  of  restraining  or  monopo- 
lizing any  part  of  trade  and  commerce  in  such  articles 
in  the  United  States. 

Any  person  who  violates  or  combines  or  conspires  with 
any  other  person  to  violate  this  section  is  guilty  of  a 
misdemeanor,  and,  on  conviction  thereof,  shall  be  pun- 
ished by  a  tine  not  exceeding  five  thousand  dollars,  or 
imprisonment  not  exceeding  one  year,  or  both,  in  the 
discretion,  of  the  court. 

Any  person  injured  in  his  business  or  property  by 
reason  of  any  violation  of,  or  combination  or  conspiracy 
to  violate,  this  section,  may  sue  therefor  in  the  district 
court  of  the  United  States  for  the  district  in  which  the 
defendant  resides  or  is  found  or  has  an  agent,  without 
respect  to  the  amount  in  controversy,  and  shall  recover 
threefold  the  damages  sustained,  and  the  cost  of  the 
suit,  including  a  reasonable  attorney's  fee. 

The  foregoing  provisions  shall  not  be  construed  to 
deprive  the  proper  state  courts  of  jurisdiction  in  actions 
for  damages  thereunder.^^ 

-59— Sec.   801,   Act   Sept.   8,    1916, 
39  Stat.  798. 


876  Criminal  Law 

§  1094.  Punishment  for  restraint  of  trade  between  any 
territory  of  United  States  and  another,  etc.  That  who- 
ever, with  intent  to  prevent,  interfere  with,  or  obstruct 
or  attempt  to  prevent,  interfere  with,  or  obstruct  the 
exportation  to  foreign  countries  of  articles  from  tlie 
United  States  shall  injure  or  destroy,  by  fire  or  explo- 
sives, such  articles  or  the  places  where  they  may  be 
while  in  such  foreign  commerce,  shall  be  fined  not  more 
than  ten  thousand  dollars,  or  imprisoned  not  more  than 
ten  years,  or  both." 

§  1095.  Unlawful  to  sell  lime  not  properly  marked, 
punishment.  That  it  shall  be  unlawful  for  any  person 
to  sell  or  offer  for  sale  lime  imported  in  barrels  from  a 
foreign  country,  or  to  sell  or  offer  for  sale  lime  in  barrels 
for  shipment  from  any  state  or  territory  or  the  District 
of  Columbia,  to  any  other  state  or  territory  or  the  Dis- 
trict of  Columbia,  unless  there  shall  be  stenciled  or  otlier- 
wise  clearly  marked  on  one  or  both  heads  of  the  small 
barrel  the  figures  ''180  lbs.  net,"  and  of  the  large  barrel 
the  figures  "280  lbs.  net,"  before  the  importation  or 
shipment,  and  on  either  barrel  in  addition  the  name  of 
the  manufacturer  of  the  lime  and  where  manufactured, 
and,  if  imported,  the  name  of  the  countiy  from  which 
it  is  imported." 

§  1096.  Variation  of  standard  barrel  may  be  permitted 
by  approval  of  secretary  of  commerce.  That  reasonable 
variations  shall  be  permitted  and  tolerance  shall  be  es- 
tablished by  rules  and  regulations  made  by  the  Director 
of  the  Bureau  of  Standards  and  approved  by  the  Sec- 
retary of  Commerce.  Prosecutions  for  offenses  under 
this  act  may  ])e  begun  upon  c()ni])laint  of  local  sealers 
of  weights  and  measures  or  other  officers  of  the  several 
states  and  territories,  appointed  to  enforce  the  laws  of 

40— Art   .Iwnc    )'>,    1917,    40   .Stut.  41— Sec.  2,  Act  Aug.  2;{,  IDIG,  39 

221.  Stat.   r>:jo. 


Violations  of  Interstate  Commerce  877 

the  said  states  or  territories,  respectively,  relating  to 
weights  and  measures:  Provided,  however,  That  noth- 
ing in  this  act  shall  apply  to  barrels  used  in  packing 
or  shipping  commodities  sold  exclusively  by  weight  or 
numerical  count.*^ 

§  1097.  Violation  for  using  lime  in  barrels.  That  it 
shall  be  unlawful  to  pack,  sell,  or  offer  for  sale  for  ship- 
ment from  any  state  or  territory  or  the  District  of  Co- 
lumbia to  any  other  state  or  territory  or  the  District 
of  Columbia,  any  barrels  or  other  containers  of  lime 
which  are  not  marked  as  provided  in  sections  2  and  3 
of  this  act,  or  to  sell,  charge  for,  or  purport  to  deliver 
from  any  state  or  territory  or  the  District  of  Columbia 
to  any  other  state  or  territory  or  the  District  of  Co- 
lumbia, as  a  large  or  small  barrel  or  a  fractional  part 
of  said  small  barrel  of  lime,  any  less  weight  of  lime  than 
is  established  by  the  provisions  of  this  act ;  and  any  per- 
son guilty  of  a  violation  of  the  provisions  of  this  act 
shall  be  deemed  guilty  of  a  misdemeanor  and  be  liable 
to  a  fine  not  exceeding  one  hundred  dollars.*^ 

§  1098.  Standard  baskets  for  grapes  and  other  fruits. 

That  the  standards  for  Climax  baskets  for  grapes  and 
other  fruits  and  vegetables  shall  be  the  two-quart  basket, 
four-quart  basket,  and  twelve-quart  basket,  respectively : 
(a)  The  standard  two-quart  Climax  basket  shall  be 
of  the  following  dimensions:  Length  of  bottom  piece, 
nine  and  one-half  inches;  width  of  bottom  piece,  three 
and  one-half  inches;  thickness  of  bottom  piece,  three- 
eighths  of  an  inch;  height  of  basket,  three  and  seven- 
eighths  inches,  outside  measurement;  top  of  basket, 
length  eleven  inches,  and  width  five  inches,  outside  meas- 
urement. Basket  to  have  a  cover  five  by  eleven  inches, 
when  a  cover  is  used. 

42_Sec.  3,  Act  Mar.  4,  1915,  38  43— (Sec.  5)   Act  Aug.  23,  1916, 

Stat.   1187.  39  Stat.  531. 


878  Criminal  Law 

(b)  The  standard  four-quart  Climax  basket  shall  be 
of  the  following  dimensions:  Length  of  bottom  piece, 
twelve  inches;  width  of  bottom  piece,  four  and  one-half 
inches;  thickness  of  bottom  piece,  three-eighths  of  an 
inch;  height  of  basket,  four  and  eleven-sixteenths  inches, 
outside  measurement;  top  of  basket,  length  fourteen 
inches;  width  six  and  one-fourth  inches,  outside  meas- 
urement. Basket  to  have  cover  six  and  one-fourth  inches 
by  fourteen  inches,  when  cover  is  used. 

(c)  The  standard  twelve-quart  Climax  basket  shall  be 
of  the  following  dimensions:  Length  of  bottom  piece, 
sixteen  inches;  w^idth  of  bottom  piece,  six  and  one-half 
inches;  thickness  of  bottom  piece,  seven-sixteenths  of  an 
inch;  height  of  basket,  seven  and  one-sixteenth  inches, 
outside  measurement;  top  of  basket,  length  nineteen 
inches;  widtli  nine  inches,  outside  measurement.  Basket 
to  have  cover  nine  inches  by  nineteen  inches,  when  cover 
is  used.** 

§  1099.  Standard  capacity  of  containers  of  small  fruits 
and  berries,  etc.  Standard  basket  or  other  container 
for  small  fruits,  berries,  and  vegetables  shall  be  of  the 
following  ca])a(*ities,  namely,  dry  oiie-hall'  pint,  dry  pint, 
dry  quart,  or  multiples  of  the  dry  quart. 

(a)  The  dry  half  ))Int  shall  coiilniii  sixIciMi  and  eight- 
tenths  cubic  inches. 

(b)  The  dry  })int  shall  coiilaiii  sixiccii  aiul  cighl-lcnlhs 
cubic  inches. 

(c)  The  dry  ([uai-l  shall  coiitnin  sixly-scvcn  and  two- 
tenths  cubic  inches.'*^ 

§  1100.  Punishment  for  manufacturing-  or  using  baskets 
and  containers  for  fruits  and  vegetables,  etc.,  not  up  to 
standard.  That  it  shall  be  unlawfnl  to  iiianuracturc  i'oi" 
shipiiicnt,  or  to  sell    for  shipiiicnt.  oi'  to  ship   IVoni  any 

44_(Sec.   ];    A<'t    Auk.   :!l,    I'.Md,  4.5— (Sec.   U)    Act   Au^r.  151,    IDK), 

."9  Slut.  67;i.  .JO   Stut.   073. 


Violations  of  Interstate  Commerce  879 

state  or  territory  of  the  United  States  or  the  District 
of  Columbia  to  any  otlier  state  or  territory  of  the  United 
States  or  the  District  of  Columbia,  any  Climax  baskets  or 
other  containers  for  small  fruits,  berries,  or  vegetables 
whether  filled  or  unfilled,  which  do  not  conform  to  the 
provisions  of  this  act;  and  any  person  guilty  of  a  wilful 
violation  of  any  of  the  provisions  of  this  act  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  fined  in  any  sum  not  exceeding  twenty- 
five  dollars:  Provided,  That  nothing  herein  contained 
shall  apply  to  the  manufacture,  sale,  or  shipment  of 
Climax  baskets,  baskets,  or  other  containers  for  small 
fruits,  berries,  and  vegetables  when  intended  for  export 
to  foreign  countries  when  such  Climax  baskets,  baskets, 
or  other  containers  for  small  fruits,  berries,  and  vege- 
tables accord  with  the  specifications  of  the  foreign  pur- 
chasers to  comply  with  the  law  of  the  country  to  which 
shipment  is  made  or  to  be  made. 

The  examination  and  test  of  Climax  baskets,  baskets, 
or  otlier  containers  for  small  fruits,  berries,  and  vege- 
tables, for  the  purpose  of  determining  whether  such  bas- 
kets or  other  containers  comply  with  the  provisions  of 
this  act,  shall  be  made  by  the  Department  of  Agricul- 
ture, and  the  Secretary  of  Agriculture  shall  establish 
and  promulgate  rules  and  regulations  allowing  such  rea- 
sonable tolerances  and  variations  as  may  be  found  neces- 
sary. 

It  shall  be  the  duty  of  each  district  attorney,  to  whom 
satisfactory  evidence  of  any  violation  of  the  act  is  pre- 
sented, to  cause  appropriate  proceedings  to  be  com- 
menced and  prosecuted  in  the  proper  court  of  the  United 
States  for  the  enforcement  of  the  penalties  as  in  such 
case  herein  provided.*^ 

46 — (Sees.  3,  4  aud  5)   Act  Aug. 
13,  1916,  39  Stat.  673. 


CHAPTER  LXIV 

OFFENSES  AGAINST  FOEEIGN  AND  INTERSTATE  COMMEKCK 

CHAPTER  NINE 

Penal  Code,  Act  March  4,  1909 


§  1103.  Dj-namite,  etc.,  not  to  be 
carried  on  vessels  or  ve- 
hicles carrying  passengers 
for  hire. 

§  1104.  Interstate  Commerce  Com- 
mission to  make  regula- 
tions for  transportation  of 
explosives. 

§  1105.  Liquid  nitroglycerin,  etc., 
not  to  be  carried  on  cer- 
tain  vessels  and   vehicles. 

§  HOG.  Marking  of  packages  of  ex- 
plosives; deceptive  mark- 
ing. 

§  1107.  Death  or  bodily  injury 
caused  by  such  transporta- 
tion. 

§  1108.  Importation  and  transporta- 
tion of  lottery  tickets,  etc., 
forltiddcn. 

gl !(»!».  Interstate  shipment  of  in- 
toxicating     liquors;      de- 


livery of  to  be  made  only 
to  bona  fide  consignee. 

1110.  Common  carrier,  etc.,  not  to 

collect  purchase  price  of 
interstate  shipment  of  in- 
toxicating  liquors. 

1111.  Packages   containing   intoxi- 

cating liquors  shipped  in 
interstate  commerce  to  bo 
marked  as  such. 

1112.  Importation  of  certain  Avild 

animals  and  birds  for- 
bidden. 

1113.  Transportation  of  prohibited 

animals. 

1114.  Marking  of  packages. 

1115.  Penalty      for     violation     of 

three  preceding  sections. 
IIK).  Importation  and  transporta- 
tion of  obscene,  etc.,  books, 
etc. 


§  1103.  Dynamite,  etc.,  not  to  be  carried  on  vessels  or 
vehicles  carrying  passengers  for  hire.  Sec.  2:>2.  11 
sliiill  l)c  unlaw  fill  to  1  i-aiis|)()rt,  can-y,  or  convey,  any 
(lynaniitc,  ^ampowdcr,  or  other  explosive,  between  a  |)la('C 
in  a  lorci.uii  eonnti}'  and  a  ])laec  within  or  snl).ject  to  the 
jui-is(li('tion  ol"  tlic  liiilcd  Slates,  or  h(>twe(Mi  a  i)lae.e  in 
any  state,  lei-rilor>-,  or  (lislricl  of  tiic  rnitcd  Slates, 
(»r  j)lac('  noiicoiilii^ruons  t<»  hut  subject  to  tlic  jui-isdic- 
tion  tliereol",  and  a  place  in  any  other  state,  Ici-i-itory, 
or  district  of  the  Tnited  States,  or  place  nonconii^-uous 

880 


Foreign  and  Interstate  Commerce  881 

to  but  subject  to  the  jurisdiction  thereof,  on  any  vessel 
or  vehicle  of  any  description  operated  by  a  common  car- 
rier, which  vessel  or  vehicle  is  carrying  passengers  for 
hire:  Provided,  That  it  shall  be  lawful  to  transport  on 
any  such  vessel  or  vehicle  small  arms  ammunition  in  any 
quantity,  and  such  fuses,  torpedoes,  rockets,  or  other 
signal  devices,  as  may  be  essential  to  promote  safety 
in  operation,  and  properly  packed  and  marked  samples 
of  explosives  for  laboratorj^  examination,  not  exceeding 
a  net  weight  of  one-half  pound  each,  and  not  exceeding 
twenty  samples  at  one  time  in  a  single  vessel  or  vehicle; 
but  such  samples  shall  not  be  carried  in  that  part  of  a 
vessel  or  vehicle  which  is  intended  for  the  transporta- 
tion of  passengers  for  hire :  Provided  further.  That  noth- 
ing in  this  section  shall  be  construed  to  prevent  the 
transportation  of  military  or  naval  forces  with  their  ac- 
companying munitions  of  war  on  passenger  equipment 
vessels  or  vehicles. 

§  1104.  Interstate  commerce  commission  to  make  reg- 
ulations for  transportation  of  explosives.  Sec.  233. 
The  Interstate  Commerce  Commission  shall  formulate 
regulations  for  the  safe  transportation  of  explosives, 
which  shall  be  binding  upon  all  common  carriers  en- 
gaged in  interstate  or  foreign  commerce  which  trans- 
port explosives  by  land.  Said  commission,  of  its  own 
motion,  or  upon  application  made  by  any  interested  party, 
may  make  changes  or  modifications  in  such  regulations, 
made  desirable  by  new  information  or  altered  conditions. 
Such  regulations  shall  be  in  accord  with  the  best  known 
practicable  means  for  securing  safety  in  transit,  cover- 
ing the  packing,  marking,  loading,  handling  while  in 
transit,  and  the  precautions  necessary  to  determine 
whether  the  material  when  offered  is  in  proper  condi- 
tion to  transport.  Such  regulations,  as  well  as  all  changes 
or  modifications  thereof,  shall  take  effect  ninety  days 
after  their  formulation  and  publication  by  said  commis- 

C.  L.— 56 


882  Criminal  Law 

sioii  and  sliall  be  in  effect  until  reversed,  set  aside,  or 
modified. 

§  1105.  Liquid  nitrogiycerin,  etc.,  not  to  be  carried  on 

certain  vessels  and  vehicles.  Sec.  234.  It  shall  be  un- 
lawful to  transport,  cany,  or  convey,  liquid  nitroglycerin, 
fulminate  in  bulk  in  dry  condition,  or  other  like  explosive 
between  a  place  in  a  foreign  country  and  a  place  within 
or  subject  to  the  jurisdiction  of  the  United  States,  or 
between  a  place  in  one  state,  territory,  or  district  of  the 
United  States,  or  place  noncontiguous  to  but  subject  to 
the  jurisdiction  thereof,  and  a  place  in  any  other  state, 
territory,  or  district  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof, 
on  any  vessel  or  vehicle  of  any  description  operated 
by  a  common  carrier  in  the  transportation  of  passengers 
or  articles  of  commerce  by  land  or  water. 

§  1106.  Marking-  of  packages  of  explosives;  deceptive 
marking.  See.  2',]^).  Every  package  containing  explo- 
sives or  other  dangerous  articles  when  presented  to  a 
common  carrier  for  shipment  shall  have  plainly  marked 
on  tiie  outside  thereof  the  contents  thereof;  and  it  shall 
be  unlawful  for  any  person  to  deliver,  or  cause  to  be 
delivered,  to  any  common  carrier  engaged  in  interstate 
oi-  foreign  commerce  by  land  or  water,  for  interstate 
or  foreign  traiisiiortation,  or  to  carry  upon  any  vessel 
or  vehicle  engaged  in  interstate  or  foreign  transporta- 
tion, any  explosive,  oi'  other  dangerous  article,  under 
any  false  or  deceptive  marking,  descrijjtion,  invoice,  sliip- 
ping  order,  or  otlier  declaration,  or  without  informing 
the  agent  of  snch  cairici-  of  tlic  tiiif  chai  adcr  Ihercof, 
at  or  before  the  tin.ie  such  delivery  or  carriage  is  made. 
Whoever  sliall  knowingly  violate,  or  cause  to  be  vio- 
lated, any  prosision  of  this  section,  or  of  the  three  sec- 
tions last  preceding,  or  any  regulation  made  by  the  In- 
terstate   Commerci'    ( 'omniission    in    puisuance    thereof, 


Foreign  and  Interstate  Commerce    .  883 

sliall  be  fined  not  more  than  two  thousand  dollars,  or 
imprisoned  not  more  than  eighteen  months,  or  both. 

§  1107.  Death  or  bodily  injury  caused  by  such  trans- 
portation. Sec.  236.  When  the  death  or  bodily  injury 
of  any  person  is  caused  by  the  explosion  of  any  article 
named  in  the  four  sections  [Sees.  1105,  1106,  1107,  1108] 
last  preceding,  while  the  same  is  being  placed  upon  any 
vessel  or  vehicle  to  be  transported  in  violation  thereof, 
or  while  the  same  is  being  so  transported,  or  while  the 
same  is  being  removed  from  such  vessel  or  vehicle,  the 
person  knowingly  placing,  or  aiding  or  permitting  the 
placing,  of  such  articles  upon  any  such  vessel  or  vehicle, 
to  be  so  transported,  sliall  be  imprisoned  not  more  than 
ten  years. 

§  1108.  Importation  and  transportation  of  lottery 
tickets,  etc.  Sec.  237.  Whoever  shall  bring  or  cause  to 
be  brought  into  the  United  States  or  any  place  subject 
to  the  jurisdiction  thereof,  from  any  foreign  country, 
for  the  purpose  of  disposing  of  the  same,  any  paper, 
certificate,  or  instrument  purporting  to  be  or  to  repre- 
sent a  ticket,  chance,  share,  or  interest  in  or  dependent 
upon  the  event  of  a  lottery,  gift  enterprise,  or  similar 
scheme  offering  prizes  dependent  in  whole  or  in  part 
upon  lot  or  chance,  or  any  advertisement  of,  or-  list  of 
the  prizes  drawn  or  awarded  by  means  of,  any  such 
lottery,  gift  enterprise,  or  similar  scheme ;  or  shall  therein 
knowingly  deposit  or  cause  to  be  deposited  with  any 
express  company  or  other  common  carrier  for  carriage, 
or  shall  carry,  from  one  state,  territory,  or  district  of 
the  United  States,  or  place  noncontiguous  to  but  sub- 
ject to  the  jurisdiction  thereof,  to  any  other  state,  ter- 
ritory, or  district  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof,  or 
from  any  place  in  or  subject  to  the  jurisdiction  of  the 
United  States  through  a  foreign  country  to  any  place 


884  Criminal  Law 

in  or  subject  to  the  jurisdiction  thereof,  or  from  any  place 
in  or  subject  to  the  jurisdiction  of  the  United  States 
to  a  foreign  country,  any  paper,  certificate,  or  instru- 
ment purporting  to  be  or  to  represent  a  ticket,  chance, 
share,  or  interest  in  or  dependent  upon,  the  event  of 
any  such  lottery,  gift  enterprise,  or  similar  scheme,  or 
any  advertisement  of,  or  list  of  the  prizes  drawn  or 
awarded  by  means  of,  any  such  lottery,  gift  enterprise, 
or  similar  scheme,  or  shall  knowingly  take  or  receive, 
or  cause  to  be  taken  or  received,  any  such  paper,  cer- 
tificate, instrument,  advertisement,  or  list  so  brought, 
deposited,  or  transported,  shall,  for  the  first  offense,  be 
fined  not  more  than  one  thousand  dollars,  or  imprisoned 
not  more  than  two  years,  or  both;  and  for  any  subse- 
quent offense  shall  be  imprisoned  not  more  than  two 
years. 

§  1109.  Interstate  shipment  of  intoxicating  liquors; 
delivery  of  to  be  made  only  to  bona  fide  consignee.  Sec. 
238.  Any  officer,  agent,  or  employee  of  any  railroad 
company,  express  company,  or  other  common  carrier, 
who  shall  knowingly  deliver  or  cause  to  be  delivered 
to  any  person  other  than  the  person  to  whom  it  has  been 
consigned,  unless  upon  the  written  order  in  each  instance 
of  the  bona  fide  consignee,  or  to  any  fictitious  person, 
or  to  any  person  under  a  fictitious  name,  any  spirituous, 
vinous,  malted,  fermented,  or  other  intoxicating  liquor 
of  any  kind  which  has  been  shipped  from  one  state,  ter- 
ritory, or  district  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  jurisdiction  thereof, 
into  any  otlior  state,  territory,  or  district  of  tlic  United 
States,  oi'  place  ii(»iic()ii1iij,ii()iis  to  l)ut  subject  lo  the  ju- 
risdiction tiiereol',  or  froni  any  foreign  country  into  any 
stat<',  territory,  or  district  of  the  United  States,  or  place 
noncontiguous  to  but  subject  to  the  jurisdiction  thereof, 
shall  be  fined  not  more  tliau  five  tliousand  dollars,  or 
impi-isoned  ii(»t  more  than  two  years,  or  both. 


Foreign  and  Interstate  Commerce  885 

§  1110.  Common  carrier,  etc.,  not  to  collect  purchase 
price  of  interstate  shipment  of  intoxicating  liquors.  Sec. 
239.  Any  railroad  company,  express  company,  or  other 
common  carrier,  or  any  other  person  who,  in  connection 
with  the  transportation  of  any  spirituous,  vinous,  malted, 
fermented,  or  other  intoxicating  liquor  of  any  kind,  from 
one  state,  territory,  or  district  of  the  United  States,  or 
place  noncontiguous  to  but  subject  to  the  jurisdiction 
thereof,  into  any  other  state,  territory,  or  district  of 
the  United  States,  or  place  noncontiguous  to  but  sub- 
ject to  the  jurisdiction  thereof,  or  from  any  foreign  coun- 
try into  any  state,  territory,  or  district  of  the  United 
States,  or  place  noncontiguous  to  but  subject  to  the  ju- 
risdiction thereof,  shall  collect  the  purchase  price  or  any 
part  thereof,  before,  on,  or  after  delivery,  from,  the  con- 
signee, or  from  any  other  person,  or  shall  in  any  manner 
act  as  the  agent  of  the  buyer  or  seller  of  any  such  liquor, 
for  the  purpose  of  buying  or  selling  or  completing  the 
sale  thereof,  saving  only  in  the  actual  transportation 
and  delivery  of  the  same,  shall  be  fined  not  more  tlian 
five  thousand  dollars. 

§  1111.  Packages  containing  intoxicating  liquors 
shipped  in  interstate  commerce  to  be  marked  as  such. 

Sec.  240.  Whoever  shall  knowingly  ship  or  cause  to  be 
shipped,  from  one  state,  territory,  or  district  of  the 
United  States,  or  place  noncontiguous  to  but  subject  to 
the  jurisdiction  thereof,  into  any  other  state,  territory, 
or  district  of  the  United  States,  or  place  noncontiguous 
to  but  subject  to  the  jurisdiction  thereof,  or  from  any 
foreign  country  into  any  state,  territory,  or  district  of 
the  United  States,  or  place  noncontiguous  to  but  subject 
to  the  jurisdiction  thereof,  any  package  of  or  package 
containing  any  spirituous,  vinous,  malted,  fermented,  or 
other  intoxicating  liquor  of  any  kind,  unless  such  pack- 
age be  so  labeled  on  the  outside  cover  as  to  plainly  show 
the  name  of  the  consignee,  the  nature  of  its  contents, 


886  Criminal  Law 

and  the  quantity  contained  tlierein,  sliall  be  fined  not 
more  than  five  thousand  dollars;  and  such  liquor  shall 
be  forfeited  to  the  United  States,  and  may  be  seized 
and  condemned  by  like  proceedings  as  those  provided 
by  law  for  the  seizure  and  forfeiture  of  property  im- 
ported into  the  United  States  contrary  to  law. 

§  1112.  Importation  of  certain  wild  animals,  birds,  and 
reptiles  forbidden.  Sec.  241.  The  importation  into  the 
United  States,  or  any  territoiy  or  district  thereof,  of 
the  mongoose,  the  so-called  "flying  foxes"  or  fruit  bats, 
the  English  sparrow,  the  starling,  and  such  other  birds 
and  animals  as  the  Secretary  of  Agriculture  may  from 
time  to  time  declare  to  be  injurious  to  the  interests  of 
agriculture  or  horticulture,  is  hereby  prohibited;  and 
all  such  birds  and  animals  shall,  upon  arrival  at  any 
port  of  the  United  States,  be  destroyed  or  returned  at 
the  expense  of  the  owner.  No  person  shall  import  into 
the  United  States  or  into  any  territory  or  district  thereof, 
any  foreign  wild  animal  or  bird,  except  under  special 
permit  from  the  Secretary  of  Agriculture:  Provided, 
That  notliing  in  this  section  shall  restrict  tlie  inqiorta- 
tion  of  natural  history  specimens  for  museums  or  scien- 
tific collections,  or  of  certain  cage  birds,  such  as  domes- 
ticated canaries,  parrots,  or  sucli  other  birds  as  the  Sec- 
retary of  Agriculture  mny  designate.  The  Secretary  of 
the  'I'l-easui-y  is  hereby  authorized  to  make  regulations 
for  carrying  into  elTect  the  ])i-ovisions  of  this  section. 

§  1113.  Transportation  of  prohibited  animals.  Sec. 
242.  It  sliMJI  he  nni;iwriil  for  any  person  to  deliver  to 
any  coiiiiiioii  c.-iniei-  loi'  1  iniisjjortation,  or  for  any  com- 
mon cjirrier  to  transjtort  from  any  state,  territory,  or 
district  of  tli<'  I'nited  States,  to  any  other  state,  terri- 
tory, or  district  thei-eof,  any  foreign  animals  oi'  birds, 
an  ini})ortation  of  which  is  prohibited,  or  the  dead  bodies 
or   part^   thereof  of  any    wild    animals   or  birds,   where 


Foreign  and  Interstate  Commerce  887 

such  animals  or  birds  have  been  killed  or  shipped  in 
violation  of  the  laws  of  the  state,  territory,  or  district 
in  which  the  same  were  killed,  or  from  which  they  were 
shipped:  Provided,  That  nothing  herein  shall  prevent 
the  transportation  of  any  dead  birds  or  animals  killed 
during  the  season  when  the  same  may  be  lawfully  cap- 
tured, and  the  export  of  which  is  not  prohibited  by  law 
in  the  state,  territoiy,  or  district  in  which  the  same  are 
captured  or  killed :  Provided  further.  That  nothing  here- 
in shall  prevent  the  importation,  transportation,  or  sale 
of  birds  or  bird  plumage  manufactured  from  the  feathers 
of  barnyard  fowls. 

§  1114.  Marking  of  packages.  Sec.  243.  All  packages 
containing  the  dead  bodies,  or  the  plumage,  or  parts 
thereof,  of  game  animals,  or  game  or  other  wild  birds, 
when  shipped  in  interstate  or  foreign  commerce,  shall 
be  plainly  and  clearly  marked,  so  that  the  name  and 
address  of  the  shipper,  and  the  nature  of  the  contents, 
may  be  readily  ascertained  on  an  inspection  of  the  out- 
side of  such  package. 

§  1115.  Penalty  for  violation  of  preceding  sections. 
Sec.  244.  For  each  evasion  or  violation  of  any  provision 
of  the  three  sections  last  preceding  [Sees.  1111,  1112, 
1113],  the  shipper  shall  be  lined  not  more  than  two  hun- 
dred dollars;  the  consignee  knowingly  receiving  such  ar- 
ticles so  shipped  and  transported  in  violation  of  said  sec- 
tions shall  be  fined  not  more  than  two  hundred  dollars; 
and  the  carrier  knowingly  carrying  or  transporting  the 
same  in  violation  of  said  sections  shall  be  fined  not  more 
than  two  hundred  dollars. 

§  1116.  Depositing  obscene  books,  etc.,  with  common 
cairier.  Sec.  245.  Whoever  shall  bring  or  cause  to  be 
brought  into  the  United  States  or  any  place  subject  to 
the  jurisdiction  thereof,  from  any  foreign  country,  or 


Crimixal  Law 

shall  therein  knowingly  deposit  or  cause  to  be  deposited 
with  any  express  company  or  other  common  carrier,  for 
carnage  from  one  state,  territory,  or  district  of  the  United 
States,  or  place  noncontiguous  to  but  subject  to  the  ju- 
risdiction thereof,  to  any  other  state,  territory,  or  dis- 
trict of  the  United  States,  or  place  noncontiguous  to  but 
subject  to  the  jurisdiction  thereof,  or  from  any  place 
in  or  subject  to  the  jurisdiction  of  the  United  States 
through  a  foreign  countiy  to  any  place  in  or  subject  to 
the  jurisdiction  thereof,  or  from  any  place  in  or  subject 
to  the  jurisdiction  of  the  United  States  to  a  foreign  coun- 
try, any  obscene,  lewd,  or  lascivious,  or  any  filthy  book, 
pamphlet,  picture,  paper,  letter,  writing,  print,  or  other 
matter  of  indecent  character,  or  any  drug,  medicine,  ar- 
ticle, or  thing  designated,  adapted,  or  intended  for  pre- 
venting conception,  or  producing  abortion,  or  for  any 
indecent  or  immoral  use,  or  any  written  or  printed  card, 
letter,  cirqular,  book,  pamphlet,  advertisement,  or  notice 
of  any  kind  giving  infonnation,  directly  or  indirectly, 
where,  how  or  of  whom  or  by  what  means  any  of  the 
hereinbefore-mentioned  articles,  matters,  or  things  may 
be  obtained  or  made;  or  whoever  shall  knowingly  take 
or  cause  to  be  taken  from  such  exprci^s  company  or  other 
common  carrier  any  matter  or  thing  the  depositing  of 
which  for  carriage  is  herein  made  unlawful,  shall  be 
fined  not  more  tlian  five  thousand  dollars,  or  imprisoned 
not  more  than  five  years,  or  both. 


CHAPTER  LXV 


OFFENSES  EELATING  TO  INDIANS 


§  1119.  Trader  in  Indian  country 
without  license,  penal. 

§  1120.  Foreigner  in  Indian  coun- 
try without  passport  liable 
to  penalty  $1,000. 

§  1121.  Eemoving  cattle,  etc.,  with- 
out permission  of  Secre- 
tary of  War. 

§  1122.  General  laws  U.  S.  extended 
to  Indian  country  in  crim- 
inal matters,  except  where 
specifically  provided. 


§  1123.  General  laws  U.  S.  concern- 
ing forgery  and  upon 
mails   Indian   country   ap- 

piy- 

§  1124.  White  person  setting  fire  to 
building  in  Indian  coun- 
try, punishment. 

§  1125.  Indian  or  white  person  mak- 
ing an  assault  upon  each 
other  with  guns,  etc.,  pun- 
ishment. 


§  1119.  Trader  in  Indian  country  without  license, 
penal.  Any  person  other  than  an  Indian  of  the  full  blood 
who  shall  attempt  to  reside  in  the  Indian  country,  or 
on  any  Indian  reservation,  as  a  trader,  or  to  introduce 
goods,  or  to  trade  therein,  without  such  license,  shall 
forfeit  all  merchandise  offered  for  sale  to  the  Indians 
or  found  in  his  possession,  and  shall  moreover  be  liable 
to  a  penalty  of  five  hundred  dollars:  Provided,  That 
this  section  shall  not  apply  to  any  person  residing  among 
or  trading  with  the  Choctaws,  Cherokees,  Chickasaws, 
Creeks,  or  Seminoles,  commonly  called  the  Five  Civilized 
Tribes,  residing  in  said  Indian  country,  and  belonging 
to  the  Union  Agency  therein:  And  provided  further. 
That  no  white  person  shall  be  employed  as  a  clerk  by 
any  Indian  trader,  except  such  as  trade  with  said  Five 
Civilized  Tribes,  unless  first  licensed  so  to  do  by  the 
Commissioner  of  Indian  Aifairs,  under  and  in  conformity 

889 


890  Criminal  Law 

to  regulations  to  be  established  by  the  Secretary  of  the 
Interior.^ 

§  1120.  Foreigner  in  Indian  country  without  passport 
liable  to  penalty  $1,000.  Every  foreigner  who  shall  go 
into  the  Indian  country  without  a  passport  from  the  De- 
partment of  the  Interior,  superintendent,  agent,  or  sub- 
agent  of  Indian  atTairs,  or  officer  of  the  United  States 
commanding  the  nearest  military  post  on  the  frontiers, 
or  who  shall  remain  intentionally  therein  after  the  ex- 
piration of  such  passport,  shall  be  liable  to  a  penalty 
of  one  thousand  dollars.  Every  such  passport  shall  ex- 
press the  object  of  such  person,  the  time  he  is  allowed 
to  remain,  and  the  route  he  is  to  travel.^ 

§  1121.  Removing  cattle,  etc.,  without  permission  of 
Secretary  of  War.  Every  person  who  drives  or  removes, 
except  by  authority  of  an  order  lawfully  issued  by  the 
Secretary  of  War,  connected  with  the  movement  or  sub- 
sistence of  troops,  any  cattle,  horses,  or  other  stock  from 
the  Indian  countiw  for  the  purpose  of  trade  or  connnerce, 
sli.-ill  l(c  pimislial'lc  l)y  imprisonniciil  for  not  more  lliaii 
three  yeai's,  or  l)y  a  line  not  more  than  tixc  llionsand 
dollars,  or  ])oth.^ 

§  1122.  General  laws  United  States  extended  to  In- 
dian country  in  criminal  matters.  Except  where  speci- 
fically provided.  I-Lxcfj)!  as  to  criincs  the  i)uuishnient 
of  wliicli  is  ('X|)r('ssly  proxidcd  i'oi-  in  this  tith\  the  gen- 
eral laws  of  tlic  I'liitcd  States  as  to  the  ])unislinuMit  of 
cj'imes  conunittecj  in  any  place  within  the  sole  ami  ex- 
clusive jurisdiet  ion  (tf  the  Inilcd  States,  except  the  Dis- 
trict of  ('(»luinl)ia,  shall  extend  to  the  Indian  country.* 

1— It.  .s.  2i.'?:<,  .July  :n,  \hh2,  22         ;{— h.  h.  2i:}8,  13  Stat.  5G3. 

Htnt.  179.  4—1?.    S.    2Ury,    10    Stat.   270. 

2— H.  H.  21?,4.  4  St.if.   730. 


Offenses  Relating  to  Indians  891 

§  1123.  General  laws  United  States  concerning  forgery 
and  upon  mails  in  Indian  country  apply.  The  general 
laws  of  the  United  States  deliiiing  and  prescribing  pun- 
ishments for  forgery  and  for  depredations  upon  the  mails, 
shall  extend  to  the  Indian  country.^ 

§  1124.  White  person  setting  fire  to  building  on  Indian 
country — Punishment.  Every  white  person  who  shall  set 
fire,  or  attempt  to  set  fire,  to  any  house,  out-house,,  cabin, 
stable,  or  other  building,  in  the  Indian  country,  to  whom- 
soever belonging;  and  every  Indian  who  shall  set  fire  to 
any  house,  out-house,  cabin,  stable,  or  other  building,  in 
the  Indian  country,  in  whole  or  in  part  belonging  to  or 
in  lawful  possession  of  a  white  person,  and  whether  the 
same  be  consumed  or  not,  shall  be  punishable  by  impris- 
onment at  hard  labor  for  not  more  than  twenty-one  years, 
nor  less  than  two  years.^ 

§  1125.  Indian  or  white  person  making  an  assault  upon 
each  other  with  guns,  etc. — Punishment.  Every  white 
person  who  shall  make  an  assault  upon  an  Indian,  or 
other  person,  and  every  Indian  who  shall  make  an  as- 
sault upon  a  white  person,  w^ithin  the  Indian  country, 
with  a  gun,  rifle,  sword,  pistol,  knife,  or  any  other  deadly 
weapon,  with  intent  to  kill  or  maim  the  person  so  as- 
saulted, shall  be  punishable  by  imprisonment,  at  hard 
labor,  for  not  more  than  five  years,  nor  less  than  one 
year.''^ 

5— R.  S.  2144,  10  Stat.  700.  7— R.  S.  2142,  10  Stat.  270. 

6— Act  Mar.  27,  1854,  R.  S.  2143, 
10  Stat.  270. 


CHAPTER  LXVI 


OFFENSES  EELATING  TO  JAPANESE   AND   CHINESE 


§  1128.  Violation  of  Act  July  5, 
1884,  where  punishment 
not  otherwise  provided  for. 

§  1129.  Under  Act  July  5,  1884,  cer- 
tificate of  identity  of 
Chinese  person  be  in  Eng- 
lish language  and  must 
show  his  proper  signature 
and  family  name. 

§  1130.  Landing  Chinese  laborers  in 
U.  S.  guilty  of  a  misde- 
meanor. 

§  1131.  Forgery  of  name  written  on 
identity  certificate  under 
Act  July  5,  1884,  misde- 
meanor. 

§  1132.  Violation  section  2158  R.  S. 
of  U.  S.  dealing  with 
Chinamen  and  Japanese. 

§  113.3.  Bringing  Chinese  to  U.  S. 
not  lawfully  entitled  to, 
misdemeanor. 

Sll'M.   \'io];ition    of    provisions    of 


Act  July  5,  1884,  by  mas- 
ter vessel. 

§  1135.  Contract  qr  attempt  to  con- 
tract in  advance  of  an  il- 
legal importation  of  Chi- 
nese, etc.,  contrary  to  sec- 
tion 2158,  R.  S.  guilty  of 
felony. 

§  1136.  All  persons  amenable  to 
laws  of  U.  S.  who  shall 
take  any  Chinamen  or 
Japs  or  oriental  from  his 
country,  shall  be  punished. 

§  1137.  Any  person  who  prepares, 
loads  or  equips,  etc.,  any 
vessel  to  trade  in  China- 
men or  Japanese  under  sec. 
2158,  E.  S.  punishment. 

§1138.  Sec.  21^58,  E.  S.  of  U.  S. 
making  it  unlawful  to  dis- 
pose of  or  sell  for  any 
time  subject  of  China  or 
Japan,  etc. 


|S^  1128.  Violation  of  Act  July  5,  1884,  where  punish- 
ment not  otherwise  provided  for.  Tliat  any  violation  of 
any  of  the  ])i-ovisions  of  this  act,  or  of  the  act  of  which 
this  is  amendator}',  the  punishnicnt  of  which  is  not  other- 
wise liercin  provided  for.  siiall  be  deemed  a  misdemeanor, 
and  sliall  he  punishahh'  l)y  a  fine  not  exceeding  one  thou- 
sand dolhirs,  oi-  hy  iniprisdiiiiiciil  for  not  more  tiian  one 
year,  or  both  such  (iiic  and  inipiMsoiimcnt.^ 

1—23   8taf.   118,  Sec.    10,   .July  5, 
1884. 


892 


Offenses  Relating  to  Japanese  and  Chinese    893 

§  1129.  Under  Act  July  5,  1884,  certificate  of  identity 
of  Chinese  person  be  in  English  language  and  must 
show  his  proper  signature  and  family  name.     In  order 
to  the  faithful  execution  of  the  provisions  of  this  act, 
every  Chinese  person,  other  than  a  laborer,  who  may 
be  entitled  by  said  treaty  or  this  act  to  come  within  the 
United  States,  and  who  shall  be  about  to  come  to  the 
United  States,  shall  obtain  the  permission  of  and  be 
identified  as  so  entitled  by  the  Chinese  government,  or 
of  such  other  foreign  government  of  which  at  the  time 
such  Chinese  person  shall  be  a  subject,  in  each  case  to 
be  evidenced  by  a  certificate  issued  by  such  government, 
which  certificate  shall  be  in  the  English  language,  and 
shall  show  such  permission,  with  the  name  of  the  per- 
mitted person  in  his  or  her  proper  signature,  and  which 
certificate  shall  state  the  individual,  family  and  tribal 
name  in  full,  title  or  official  rank,  if  any,  the  age,  height, 
and  all  physical  peculiarities,  former  and  present  occu- 
pation or  profession,  when  and  where  and  how  long 
pursued  and  place  or  residence  of  the  person  to  whom 
the  certificate  is  issued,  and  that  such  person  is  entitled 
by  this  act  to  come  within  the  United  States.     If  the 
person  so  applying  for  a  certificate  shall  be  a  merchant, 
said  certificate  shall,  in  addition  to  above  requirements, 
state  the  nature,  character,  and  estimated  value  of  the 
business  carried  on  by  him  prior  to  and  at  the  time  of 
his  application  as  aforesaid:  Provided,  That  nothing  in 
this  act  now  in  said  treaty  shall  be  construed  as  embrac- 
ing within  the  meaning  of  the  word  ''merchant,"  huck- 
sters, peddlers,  or  those  engaged  in  taking,  drying,  or 
otherwise  preserving  shell  or  other  fish  for  home  con- 
sumption or  exportation.     If  the  certificate  be  sought 
for  the  purpose  of  travel  for  curiosity,  it  shall  also  state 
whether  the  applicant  intends  to  pass  through  or  travel 
within   the  United  States,  together  with  his  financial 
standing  in  the  countiy  from  which  such  certificate  is 
desired.    The  certificate  provided  for  in  this  act,  and  the 


894  Criminal  Law 

identity  of  the  person  named  therein  shall,  before  such 
person  goes  on  board  any  vessel  to  proceed  to  the  United 
States,  be  vised  by  the  indorsement  of  the  diplomatic 
representatives  of  the  United  States  in  the  foreign  comi- 
try  from  which  said  certificate  issues,  or  of  the  consu- 
lar representative  of  the  United  States  at  the  port  or 
place  from  which  the  person  named  in  the  certificate  is 
about  to  depart;  and  such  diplomatic  representative  or 
consular   representative,   whose   indorsement   is    so   re- 
quired, is  hereby  empowered,  and  it  shall  be  his  duty, 
before   endorsing  such   certificate   as   aforesaid,   to   ex- 
amine into  the  truth  of  the  statements  set  forth  in  said 
certificate,  and  if  he  shall  find  upon  examination  that 
said  or  any  of  the  statements  therein  contained  are  un- 
true it  .shall  be  his  duty  to  refuse  to  indorse  the  same. 
Such  certificate  vised  as  aforesaid  shall  be  prima  facie 
evidence  of  the  facts  set  forth  therein,  and  shall  be  pro- 
duced to  the  collector  of  customs  of  the  port  in  the  dis- 
trict in  the  United  States  at  which  the  person  named 
therein  shall  arrive,  and  afterward  produce  to  the  proper 
authorities  of  the  United  States  whenever  lawfully  de- 
manded, and  shall  be  the  sole  evidence  permissible  on  the 
part  of  the  person  so  producing  the  same  to  establish  a 
riglit  of  entiy  into  the  United  "States;  but  said  certificate 
may  he  coiil  rovcilcd  and   the   facts  llicrciii  staled  disap- 
)ji-()V('(l  liy  tlic   I'liitcd  States  aut  lim-'ities.^ 

§  1130.  Landing  Chinese  laborers  in  United  States 
guilty  of  a  misdemeanor.  'Pliat  the  master  of  any  vessel 
wlio  sliall  kii<twiiii;ly  bring  within  the  Initetl  Stales  on 
KiH'li  vessel,  and  hind,  or  attempt  to  hiinh  oi-  ])ennit  to 
he  hinded  any  ('hiiu'se  hahorer,  from  any  i'oi-eii;ii  jxtrt  or 
place,  shall  he  deemed  uuiltv  of  a  niisdenieanoi-,  and,  on 
eon\'ietioii  thereof,  shall  he  pnnished  hy  a  line  of  not  mort; 

2—23   Htnt.    IKi,  Sec.   C,  Act   .July 
^  1884. 


Offenses  Relating  to  Japanese  and  Chinese    895 

than  five  hundred  dolhirs,  and  may  also  he  imprisoned 
for  a  term  not  exceeding  one  year.^ 

§  1131.  Forgery  of  name  written  in  identity  certificate 
under  act  July  5,  1884 — Misdemeanor.  Nothing  herein 
contained  shall  be  deemed  to  apply  to  any  voluntary  emi- 
gration of  the  subjects  specified  in  section  twenty-one 
hundred  and  fifty-eight  revised  statutes,  or  to  any  vessel 
carrying  such  person  as  passenger  on  board  the  same, 
but  a  certificate  shall  be  prepared  and  signed  by  the  con- 
sul or  consular  agent  of  the  United  States  residing  at  the 
port  from  which  such  vessel  may  take  h<3r  departure, 
containing  the  name  of  such  person,  and  setting  forth  the 
fact  of  his  voluntary  emigration  from  such  port,  which 
certificate  shall  be  given  to  the  master  of  such  vessel; 
and  the  same  shall  not  be  given  until  such  consul  or  con- 
sular agent  is  first  personally  satisfied  by  evidence  of 
the  truth  of  the  facts  therein  contained.* 

§1132.  Violation  Section  2158  Revised  Statutes  of 
United   States   dealing-  with   Chinamen   and  Japanese. 

Every  citizen  of  the  United  States  who,  contrary  to  tlie 
provisions  of  section  twenty-one  hundred  and  fifty-eight 
revised  statutes,  takes  on  board  of  any  vessel,  or  receives 
or  transports  any  such  subjects  as  are  described  in  that 
section,  for  the  purpose  of  disposing  of  them  in  any  way 
as  therein  prohibited,  shall  be  liable  to  a  fine  not  exceed- 
ing two  thousand  dollars  and  be  imprisoned  not  exceed- 
ing one  year.^ 

§  1133.  Bringing  Chinese  to  United  States  not  lawfully 
intended  to — Misdemeanor.  Any  person  who  shall  know- 
ingly bring  into  or  cause  to  be  brought  into  the  United 
States  by  land,  or  who  shall  aid  or  abet  the  same,  or  aid 
or  abet  the  landing  in  the  United  States  from  any  ves- 

3— Sec.    2,    Act   July   5,    1884,   23  5— R.  S.  2161,  12  Stat.  340. 

Stat.  115. 

4— Sec.  4,  Feb.  19,  1862,  12  Stat. 
341. 


896  Criminal  Law 

sel,  of  any  Chinese  person  not  lawfully  entitled  to  enter 
the  United  States,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  on  conviction  thereof,  be  fined  in  a  sum 
not  exceeding  one  thousand  dollars,  and  imprisonment 
for  a  term  not  exceeding  one  year.^ 

§  1134.  Violation  of  provisions  of  act  July  5,  1884,  by 
master  vessel.  The  master  of  any  vessel  arriving  in 
the  United  States  from  any  foreign  port  or  place  shall, 
at  the  same  time  he  delivers  a  manifest  of  the  cargo,  and 
if  there  be  no  cargo,  then  at  the  time  of  making  a  report 
of  the  entry  of  the  vessel  pursuant  to  law,  in  addition 
to  the  other  matter  required  to  be  reported,  and  before 
landing,  or  permitting  to  land,  any  Chinese  passengers, 
deliver  and  report  to  the  collector  of  customs  of  the  dis- 
trict in  which  such  vessels  shall  have  arrived  a  separate 
list  of  all  Chinese  passengers  taken  on  board  his  vessel 
at  any  foreign  port  or  place,  and  all  such  passengers 
on  board  the  vessel  at  that  time,  such  list  shall  show  the 
names  of  such  passengers  (and  if  accredited  officers  of 
the  Chinese  or  of  any  other  foreign  government,  travel- 
ing on  the  business  of  that  government,  or  their  servants, 
with  a  note  of  such  facts),  and  the  names  and  other  par- 
ticulars as  shown  by  their  respective  certificates;  and 
such  list  shall  be  sworn  to  by  the  master  in  the  manner 
required  by  hiw  in  relation  to  the  manifest  of  the  cargo. 
Any  refusal  oi-  wilt'nl  neglect  of  any  sncli  inaslci-  to  com 
ply  witli  the  ])rovisi()ns  of  this  section  shall  incur  the 
same  penalties  and  forfeiture  as  are  provided  for  a  re 
fusal  or  neglect  to  report  and  deliver  a  manifest  of  the 
cargo. 

Before  any  Chinese  passengers  are  landed  from  any 
such  vessel,  the  collector,  or  his  deputy,  shall  proceed 
to  examine  such  passengers,  comparing  the  certificates 

6— Sec.    11,   Act   July  5,  1884,  23 
Htat.    117. 


Offenses  Eelating  to  Japanese  and  Chinese   897 

with  the  list  and  with  the  passengers;  and  no  passenger 
shall  be  allowed  to  land  in  the  United  States  from  such 
vessel  in  violation  of  law. 

Every  vessel  whose  master  shall  knowingly  violate 
any  of  the  provisions  of  this  act  shall  be  deemed  for- 
feited to  the  United  States,  and  shall  be  liable  to  seizure 
and  condemnation  in  any  district  of  the  United  States 
into  which  such  vessel  may  enter  or  in  which  she  may 
be  foundJ 

§  1135.  Contract  or  attempt  to  contract  in  advance  of 
an  illegal  importation  of  Chinese,  etc.,  contrary  to  sec- 
tion 2158  Revised  Statutes,  guilty  of  felony.  Thus  if 
any  person  shall  knowingly  and  wilfully  contract,  or  at- 
tempt to  contract,  in  advance  or  in  pursuance  of  such 
illegal  importation,  to  supply  to  another  the  labor  of 
coolie  or  other  person  brought  into  the  United  States 
in  violation  of  section  two  thousand  one  hundred  and 
fifty-eight  of  the  revised  statutes  (sec.  1132  this  code), 
or  of  any  other  section  of  the  laws  prohibiting  the  coolie- 
trade  or  of  this  act,  such  person  shall  be  deemed  guilty 
of  a  felony,  and,  upon  conviction  thereof,  in  any  United 
States  court,  shall  be  fined  in  a  sum  not  exceeding  five 
hundred  dollars  and  imprisoned  for  a  term  not  exceeding 
one  year.® 

§  1136.  All  persons  amenable  to  laws  of  United  States 
who  shall  take  any  Chinamen  or  Japanese  or  Oriental 
from  his  country,  shall  be  punished.  That  if  any  citizen 
of  the  United  States,  or  other  person  amenable  to  the 
laws  of  the  United  States,  shall  take,  or  cause  to  be  taken 
or  transported,  to  or  from  the  United  States  any  sub- 
ject of  China,  Japan,  or  any  oriental  country,  without 
their  free  and  voluntary  consent,  for  the  purpose  of  hold- 

7_Secs.    8    and   10,    Act   July    5,  8— Act    Mar.    3,    1875,    18    Stat. 

1884,  23  Stat.  117.  477. 

C.  L.— 57 


898  Criminal,  Law 

ing  them  to  a  tenn  of  service,  such  citizen  or  otlier  person 
shall  be  liable  to  be  indicted  therefor,  and,  on  conviction 
of  such  offense,  shall  be  punished  by  a  fine  not  exceeding 
two  thousand  dollars  and  be  imprisoned  not  exceeding 
one  year;  and  all  contracts  and  agreements  for  a  term 
of  service  of  such  persons  in  the  United  States,  whether 
made  in  advance  or  in  pursuance  of  such  illegal  importa- 
tion, and  whether  such  importation  shall  have  been  in 
American  or  other  vessels,  are  hereby  declared  void.® 

§  1137.  Any  person  who  prepares,  loads  or  equips,  etc., 
any  vessel  to  trade  in  Chinese  or  Japanese  under  Section 
2158  Revised  Statutes.  Punishment.  Every  person  who 
so  builds,  fits  out,  equips,  loads,  or  otherwise  prepares, 
or  who  sends  to  sea,  or  navigates,  as  owner,  master,  fac- 
tor, agent,  or  otherwise,  any  vessel,  belonging  in  whole 
or  in  part  to  a  citizen  of  the  United  States,  or  registered, 
enrolled,  or  licensed  within  the  same,  kno^ving  or  intend- 
ing that  such  vessel  is  to  be  or  may  be  employed  in  that 
trade,  contrary  to  the  provisions  of  section  twenty-one 
hundred  and  fifty-eight,  shall  be  liable  to  a  fine  not  ex- 
ceeding two  thousand  dollars,  and  be  imprisoned  not  ex- 
ceeding one  year.^° 

COOLIE  TRADE 

§1138.  Section  2158  of  Revised  Statutes  of  United 
States,  making  it  unlawful  to  dispose  of  or  sell  for  any 
time,  subject  of  China  or  Japan,  etc.  No  citizen  of  the 
United  Slates,  or  foreigner  coming  into  or  residing  within 
the  same,  shall,  for  himself  or  for  any  other  person,  eitlier 
as  master,  factor,  owner,  or  otherwise,  build,  equip,  load, 
or  otherwise  prepare,  any  vessel,  registered,  enrolled,  or 
licensed,  in  tiie  United  States,  for  the  purpose  of  procur- 
ing from  any  port  or  place  the  subjects  of  riiinn,  Japan, 

9— Act   March    3,    1R75,    18    Stat.  10— R.  S.  2160,  12  Stat.  340,  Act 

477.  Fob.   19,   1862. 


Offenses  Relating  to  Japanese  and  Chinese    899 

or  of  any  other  oriental  country,  known  as  ''coolies,"  to 
be  transported  to  any  foreign  port,  or  place,  to  be  dis- 
posed of,  or  sold,  or  transferred,  for  any  time,  as  servants 
or  apprentices,  or  to  be  held  to  service  or  labor." 

11— Act    Feb.    9,    18C9,    15    Stat. 
269. 


CHAPTER  LXVII 

MISCELLANEOUS    OFFENSES 


§  1140. 

Licenses   for   collecting   for- 

§ 1153. 

Dealers  in  cotton  to  answer 

eign  coupons,  etc.,  punish- 

all questions,  willfully  re- 

ment. 

fusing,  punishment. 

§  1141. 

Concealing      property       o  n 

§  1154. 

Person     intentionally     and 

boundary    between    U.    S. 

willfully      making      false 

and  foreign  country,  pun- 

statement,    etc.,     punish- 

ishment. 

ment. 

§1142. 

Bribing  voter,   in   senatorial 

§  1155. 

Ownersliip    in    other    similar 

and     representative     elec- 

associations. 

tions. 

§  115G. 

Association   sale   for   export 

§1143. 

Congressional  elections,  pun- 

trade not  a  violation  anti 

ishment      for     designated 

port   act. 

corrupt   practices   at   pri- 

§1157. 

All  persons  entitled  to  same 

mary,    general    or    special 

privileges  as  to  inns,  pub- 

elections. 

lic  conveyances  on  land  or 

§  1144. 

Accepting     fee     for     filing 

water. 

soldier   homestead   entries. 

§  1158. 

Punishment     for     violation. 

punishment. 

not  permitting  equal  privi- 

s 11 4.-;. 

Entrapping  Antwerp  or  hom- 

leges. 

ing  pigeon,  punishment. 

§  1159. 

Offenses   committed    in    Na- 

§1146. 

Detention,   etc.,   evidence   of 

tional   parks,   punishment. 

violation. 

§  1100. 

Illegal    for    grantee    to    ac- 

§ 1147. 

Punishment. 

cept  deed   from  Crow  In- 

§ 1148. 

Accepting     allowance     after 

dian,  punishment. 

the  right  has  ceased,  pun- 

§ 1161. 

Establishing    eight    hour    a 

ishment. 

day  standard. 

§1149. 

Intent  to  defraud  in  secur- 

§1102. 

President    to    appoint    com- 

ing allotment. 

mission. 

8  11. -^0. 

Knowingly      making      false 

§  1163. 

Pending    report    of   commis- 

Htatcment   for    family    al- 

sion the  eight  lioiir  day  not 

lowance,  perjury. 

reduced. 

8  1151. 

Ten  per  cent  allowed  attor- 

§ 1164. 

Punishment  of  violation. 

ney    foe,    war    risk    insur- 

8 1165. 

Contractor    or    officer   of   U. 

ance,    punishment    for. 

S.   punished    for   violation 

11152. 

Act  relating  to  pensiona,  il- 

of U.  S.  labor  provisions. 

legal  attorney's  fee,  pu7i 

8  1100. 

U.  S.  compensation  law,  affi- 

i.shmont. 

davit. 

!KJU 


Miscellaneous  Offenses 


901 


§  1167.  Perjury  to  make  false  af- 
fidavit for  XJ.  S.,  conspira- 
tors. 

§  1168.  An  Act  to  create  a  Federal 
power  commission;  to  pro- 
vide for  the  improvement 
of  navigation;  the  de- 
velopment of  water  power; 
the  use  of  the  public  lands 
in  relation  thereto,  and  to 
repeal  section  18  of  the 
river  and  harbor  appro- 
priation Act,  approved 
Aug.  8,  1917,  and  for 
other  purposes. 

§  1169.  Dispute  before  labor  board, 
compelled  to  testify,  no  in- 
crimination, except  per- 
jury. 

§  1170.  U.  S.  officers  converting 
funds  coming  to  their  pos- 
session, punishment. 

§  1171.  Federal  board  vocational 
education,  discrimination 
against  industrial  organi- 
zations,   etc.,    punishment. 

§  1172.  Clerk  in  Treasury  Depart- 
ment carrying  on  business, 
punishment. 

§  1173.  Officers  of  the  Treasury  De- 
partment engaging  in  busi- 
ness. 

§  1174.  Claims  against  the  IT.  S. 
prosecution  of  by  officers, 
etc.,  engaged  since  AprU 
6,  1917,  in  procuring  army 
supplies,  unlawful. 

§  1175.  Federal  deficiency  act  for 
the  fiscal  year  1919,  using 
funds  influencing  congress- 
men. 

§  1176.  Joint  resolution  authorizing 
the  Secretary  of  War  to 
issue  permits  for  the  di- 
version of  water  from  the 
Niagara  river,  punishment 
for  illegal  use. 


§  1177.  Amending  section  2138,  Be- 
vised  Statute  of  the  U.  S. 
Indian  appropriation  act. 

§  1178.  Title  III  of  the  War  Finance 
Corporation  Act,  Apr.  5, 
1918,  general  penalties. 

§  1179.  Contracts  made  with  secre- 
tary of  war,  navy  and  in- 
terior must  be  in  writing. 

§  1180.  Any  person  other  than  the 
one  to  whom  a  certificate 
was  issued,  who  falsely 
presents  such  certificate  is 
guilty   of  a   misdemeanor. 

§  1181.  Offenses  under  Act  Jan.  16, 
1883,  relating  to  civil  serv- 
ice. 

§  1182.  To  receive  greater  fee  than 
allowed  by  sections  6  to 
15  Act  May  28,  1896,  by 
officer,  illegal,  penalty. 

§  1183.  Tax  on  cotton  sale. 

§  1184.  Penalty  under  State  law  act 
Aug.  11,  1916,  cotton 
future  act. 

§  1185.  Incriminating  testimony  un- 
der cotton  future  act. 

§  1186.  Additional  punishment  under 
Act  Aug.  11,  1916,  cotton 
act. 

§  1187.  Punishment  for  Act  Aug. 
11,  1916,  cotton  future 
act. 

§  1188.  Unlawful  to  export  white 
phosphorus  matches. 

§  1189.  See.  3744,  Kevised  statutes 
U.  S. 

§  1190.  The  provision  of  lease  shall 
not  apply  to  lands. 

§  1191.  Keturn  of  officer  must  be 
sworn  to  before  officer, 
form  of  affidavit. 

§  1192.  Failure  to  make  return  by 
U.   S.   officer,  penalty. 

§  1193.  Public  printer  is  accountable 
for  all  materials  received 


902 


Criminal  Law 


for  public  use,  penalty  for 
failure. 

§  119-4.  Public     printer     defrauding       §  1204. 
the  Government. 

§  1195.  Opening    or    tapping    water      §  1205. 
mains  of  the  U.  S.  water 
supply,  subject  to  prosecu- 
tion. §  1206. 

§  1196.  Maliciously   breaking  or  de- 
stroying Gov't  watermains       §  1207. 
or    pipes,   punishment. 

§  1197.  Maliciously     causing     water 
supply  in  cities  of  Wash- 
ington and  Georgetown  to       §  1208. 
become  impure. 

§  1198.  Violation  Act  Aug.  24,  1912, 

regulating  furbearing  ani-  '  §  1209. 
mals,  punishment,  jurisdic-  §  1210. 
tion. 

§  1199.  Violating    provision    of    Act      §  1211. 
Oct.  6,  1917,  40  Stat.  388. 

§  1200.  Marshal  failing  to  serve 
warrant  on  person  charged 
with  violating  civil  rights 
act.  §  1212. 

§  1201.  Duties  of  clerk  of  U.  S. 
courts,  etc.,  removed  from 
office,   penalty. 

§  1202.  Failure  of  clerk  to  perform       §  1213. 
duties  as  provided  by  Act 
Feb.  22,  1875. 

§  121)3.  Tax    on    decedents'    estates. 


what  is  person,  what  is  ex- 
ecutor, etc. 

The  executor  must  file  re- 
turn within  thirty  days. 

Act  Sept.  8,  1916,  knowingly 
making  false  returns  of 
decedent's  estate  tax. 

The  tax  imposed  in  the  de- 
cedent's estates. 

Under  the  bankruptcy  act 
of  July  1,  1898,  the  fol- 
lowing acts  are  punish- 
able. 

Prohibition  against  import- 
ing adulterated  seeds,  pun- 
ishment. 

Whnt   is  adulterated  seed. 

Punishment  under  Act  Aug. 
24,   1912. 

Salt  pork  to  be  inspected 
for  transportation,  pack- 
ages must  be  marked,  pun- 
ishment for  forging  marks, 
etc. 

Act  Feb.  21,  1905,  relating 
to  stamping  ' '  United 
States  assay ' '  unlawfully, 
punishment    for    violation. 

Act  June  13,  1906,  relating 
to  dealer  in  gold  and  sil- 
ver ware,  punishment  for 
violation. 


§  1140.  Licenses  for  collecting  foreign  coupons,  etc. 
Punishment.  All  persons,  corporations,  partnerships,  or 
associations,  inidortn]\in<!:  as  a  matter  of  business  or  for 
profit  tJie  collection  of  forci.i^n  payments  of  interest  or 
dividends  by  means  of  coupons,  checks,  or  bill  of  ex- 
change sliall  oltl.'iiii  n  license  IVoiii  llu'  Commissioner  of 
Internal  Kcvenue,  and  shall  be  snb.jeet  to  such  re,ii:ula- 
tions  enablin;^  the  government  to  obtain  the  infonnation 
required  under  this  title,  as  the  Commissioner  of  Liternal 
Revenue,  with  Hie  .■ip|)ro\;il  of  the  Secretary  of  the  Trens- 


Miscellaneous  Offenses  903 

ury,  shall  prescribe;  and  whoever  knowingly  undertakes 
to  collect  such  payments  as  aforesaid  without  having 
obtained  a  license  therefor,  or  without  complying  with 
such  regulations,  shall  be  deemed  guilty  of  a  misdemeanor 
and  for  each  offense  be  fined  in  a  sum  not  exceeding 
$5,000,  or  imprisond  for  a  term  not  exceeding  one  year, 
or  both,  in  the  discretion  of  the  court.^ 

§  1141.  Concealing  property  on  boundary  betwean 
United  States  and  foreign  country— Punishment.  Any 
person  who  shall  have  received  or  deposited  in  a  build- 
ing upon  the  boundary  line  between  the  United  States 
and  any  foreign  country,  or  carried  through  the  same,  any 
merchandise,  or  shall  have  aided  therein,  in  violation  of 
law,  shall  be  punishable  by  a  fine  of  not  more  than  ten 
thousand  dollars,  or  by  imprisonment  for  not  more  than 
two  years,  or  by  both.^ 

§  1142.  Bribing  voter  in  senatorial  and  representative 
elections.  Whoever  shall  provide,  offer,  or  give,  or  cause 
to  be  promised,  offered  or  given,  any  money  or  other 
thing  of  value,  or  shall  make  or  tender  any  contract, 
undertaking,  obligation,  gratuity,  or  security  for  the 
payment  of  money  or  for  the  delivery  or  conveyance  of 
anything  of  value  to  any  person,  either  to  vote  or  with- 
hold his  vote  or  to  vote  for  or  against  any  candidate,  or 
whoever  solicits,  accepts,  or  receives  any  money  or  other 
thing  of  value  in  consideration  of  his  vote  for  or  against 
any  candidate  for  senator  or  representative  or  delegate 
in  Congress  at  any  primary  or  general  or  special  elec- 
tion, shall  be  fined  not  more  than  $1,000,  or  imprisoned 
not  more  than  one  year,  or  both.^ 

1— Sec.    1205,    Oct,    3,    1917,    40  3—40  Stat,  at  Large,  Act  Oct.  16, 

Stat.  333.  1918. 

2—13    Stat.    442,    Act    Feb.    28, 
1865. 


904  Criminal  Law 

§  1143.  Congressional  elections — Punishment  for  des- 
ignated corrupt  practices  at  primary,  general,  or  special 
elections.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America  in  Congress 
assembled,  That  whoever  shall  promise,  offer,  or  give,  or 
cause  to  be  promised,  offered,  or  given,  any  money  or 
other  thing  of  value,  or  shall  make  or  tender  any  con- 
tract, undertaking,  obligation,  gratuity,  or  security  for 
the  payment  of  money  or  for  the  delivery  or  conveyance 
of  anything  of  value  to  any  person,  either  to  vote  or  with- 
hold his  vote  or  to  vote  for  or  against  any  candidate,  or 
whoever  solicits,  accepts,  or  received  any  money  or  other 
thing  of  value  in  consideration  of  his  vote  for  or  against 
any  candidate  for  Senator  or  Representative  or  Delegate 
in  Congress  at  any  primary  or  general  or  special  election, 
shall  be  fined  not  more  than  $1,000  or  imprisonment  not 
more  than  one  year,  or  both.* 

§  1144.  Accepting  fee  for  filing  soldier  homestead  en- 
tries— Punishment.  No  relinquishment  of  any  public 
land  entry  made  under  and  by  authority  of  section  eight 
of  the  Act  of  Sixty-fifth  Congress,  second  session,  en- 
titled **An  Act  amending  the  Act  entitled  'An  Act  to 
autliorize  the  President  to  increase  temporarily  the  Mil- 
itary Establishment  of  the  United  States,'  "  approved 
May  eighteenth,  nienteen  hundred  and  seventeen,  shall 
be  valid  or  effective  for  any  purpose  unless  executed 
after  tlie  oiitryman  sliall  liave  actuall}^  resided  upon  and 
cultivated  the  land,  in  the  case  of  a  homestead  entry,  for 
at  least  six  months,  and  in  the  case  of  an  entry  made 
under  other  tliaii  tlic  lioinestead  laws,  after  the  entiy- 
maii  sliall  have  (*oni})li('(l  with  the  ])]-()\isi()iis  of  llio  aj)- 
j^licable  law  for  at  least  one  year. 

Any  j)ers()n,  finn,  or  coi'poralioii  soliciting  or  dealing 
with  tli(.'  relinfjuishment  of  such  claim  or  entry  prior  to 

4— Sec.  ],  Oct.  IG,  1918,  40  Stat. 
1013. 


Miscellaneous  Offenses  905 

the  completion  of  compliance  with  the  applicable  law  and 
with  this  resolution,  and  who  or  which  solicits,  demands, 
or  receives  or  accepts  any  fee  or  compensation  for  locat- 
ing filing,  or  securing  the  claims  or  entries  for  persons 
entitled  to  the  benefits  of  said  section  shall,  upon  con- 
viction, be  fined  not  to  exceed  $1,000  or  imprisonment  for 
not  exceeding  two  years,  or  both.^ 

§  1145.  Entrapping  Antwerp  or  homing  pigeon — Pun- 
ishment. Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America  in  Congress 
assembled,  That  it  be,  and  it  hereby  is,  declared  to  be 
unlawful  to  knowingly  entrap,  capture,  shoot,  kill,  pos- 
sess, or  in  any  way  detain  an  Antwei*p,  or  homing  pigeon, 
commonly  called  carrier  pigeon,  which  is  owned  by  the 
United  States  or  bears  a  band  owned  and  issued  by  the 
United  States  having  thereon  the  letters  *'U.  S.  A."  or 
"U.  S.  N."  and  a  serial  number.^ 

§  1146.  Detention,  etc. — Evidence  of  violation.  That 
the  possession  or  detention  of  any  pigeon  described  in 
section  one  of  this  Act  [Sec.  1145]  by  any  person  or  per- 
sons in  any  loft,  house,  cage,  building,  or  structure  in  the 
ownership  or  under  the  control  of  such  person  or  persons 
without  giving  immediate  notice  by  registered  mail  to  the 
nearest  military  or  naval  authorities,  shall  be  prima  facie 
evidence  of  a  violation  of  this  Act.'' 

§  1147.  Punishment.  That  any  person  violating  the 
provisions  of  this  Act  shall,  upon  conviction,  be  pun- 
ished by  a  fine  or  not  more  than  $100,  or  by  imprisonment 
for  not  more  than  six  months,  or  by  both  such  fine  and 
imprisonment.* 

5—40  Stat,  at  Large,  Act  Sept.  7— Sec.  2,  Act  Apr,  10,  1918,  40 

13,  1918.  Stat.  533. 

6— Sec.  1,  Act  Apr.  19,  1918,  40  8— Sec.  3,  Act  Apr.  19,  1918,  40 

Stat.  533.  Stat.  533. 


906  Criminal  Law 

FAMILY  ALLOWANCE 

§  1148.  Accepting  allowance  after  the  right  has  ceased 
— Punishment.  If  any  person  entitled  to  payment  of 
family  allowance  or  compensation  under  this  Act  (Oct. 
6,  1917),  whose  right  to  such  payment  under  this  Act 
ceases  upon  the  happening  of  any  contingency,  there- 
after fraudulently  accepts  any  such  payment,  he  shall  be 
punished  by  a  fine  of  not  more  than  $2,000  or  by  imprison- 
ment for  not  more  than  one  j^ear,  or  both.® 

§  1149.  Intent  to  defraud  in  securing  allotment.  Who- 
ever shall  obtain  or  receive  any  money,  check,  allotment, 
family  allowance,  compensation,  or  insurance  under 
Articles  II,  III,  or  IV  of  this  Act  (June  25,  1918),  with- 
out being  entitled  thereto,  with  intent  to  defraud  the 
United  States  or  any  person  in  the  military  or  naval 
forces  of  the  United  States,  shall  be  punished  by  a  fine 
of  not  more  than  $2,000,  or  by  imprisonment  for  not 
more  than  one  year,  or  both.  ^^ 

§  1150.  Knowingly  making  false  statement  for  family 
allowance — Perjury.  Whoever  in  any  claim  for  family 
allowance,  compensation,  or  insurance,  or  in  any  docu- 
ment required  by  this  Act  (Oct.  6,  1917),  or  by  regulation 
made  under  this  Act,  makes  any  statement  of  a  material 
fact  knowing  it  to  be  false,  shall  be  guilty  of  perjury  and 
shall  bo  ])niiisliod  by  a  fine  of  not  more  than  $5,000,  or  by 
imprisonment  for  not  more  than  two  years,  or  both," 

§  1151.  Ten  per  cent  allowed  attorney  fee — War  risk 
insurance — Punishment  for.  Tlini  in  Ihc  event  of  a  dis- 
agrcciiicni  as  to  a  chiiin  under  Ihe  contract  of  insurance 
between  the  bureau  of  insurance  and  any  beneficiary  or 

9—40    Rtat.    at    Largo    402,    Act  11—40    Stat,   at   Largo   402,   Act 

Act.  6,  1917.  Oct.    f),    1917. 

10 — 40  State  at  Large,  Act  .Tune 
25,  1918. 


Miscellaneous  Offenses  907 

beneficiaries  thereunder,  an  action  on  the  claim  may  be 
brought  against  the  United  States  in  the  District  Court 
of  the  United  States  in  and  for  the  district  in  which  such 
beneficiaries  or  any  one  of  them  resides.  The  court,  as 
part  of  its  judgment,  shall  determine  and  allow  such  rea- 
sonable attorney's  fees,  not  to  exceed  ten  percentum  of 
the  amount  recovered,  to  be  paid  by  the  claimant  on 
behalf  of  whom  such  proceedings  are  instituted  to  his  at- 
torney; and  it  shall  be  unlawful  for  the  attorney  or  for 
any  other  person  acting  as  claim  agent  or  otherwise  to 
ask  for,  contract  for,  or  receive  any  other  compensation 
because  of  such  action.  No  other  compensation  or  fee 
shall  be  charged  or  received  by  any  person  except  such 
as  may  be  authorized  by  the  commissioner  in  regulations 
to  be  promulgated  by  him.  Any  person  violating  the  pro- 
visions of  this  section  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall,  for  each  and 
every  such  offense,  be  fined  not  exceeding  $500,  or  be  im- 
prisoned at  hard  labor  not  exceeding  tw^o  years,  or  both, 
in  the  discretion  of  the  court.^^ 

§  1152.  Act  relating  to  pensions — Illegal  attorneys'  fee 
— Punishment.  That  no  claim  agent  or  attorney  or  other 
person  shall  be  recognized  in  the  adjustment  of  claims 
under  this  act  (Act  May  1,  1920),  except  in  claims  for 
original  pension,  and  in  such  cases  no  more  than  the  sum 
of  $10  shall  be  allowed  for  services  in  preparing,  present- 
ing, or  prosecuting  any  such  claim,  which  sum  shall  be 
payable  only  on  the  order  of  the  commissioner  of  pen- 
sions; and  any  person  who  shall  violate  any  of  the  pro- 
visions of  this  section,  or  shall  wrongfully  withhold  from 
the  pensioner  or  claimant  the  whole  or  any  part  of  a 
pension  alloAved  or  due  to  such  pensioner  or  claimant 
under  this  act,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  for  each  and  eveiy  of- 

12— Sec.  405,  Title  IV,  Act  Oct. 
6,   1917,  40   Stat.   410. 


908  Criminal  Law 

fense,  be  fined  not  exceeding  $500  or  be  imprisoned  not 
exceeding  one  year,  or  botli,  in  the  discretion  of  the 
court.^' 

COTTON 

§1153.  Dealers  in  cotton  to  answer  all  questions — . 
Wilfully  refusing — Punishment.  That  it  shall  be  the 
duty  of  any  person  engaged  in  the  business  of  dealing  in 
cotton,  when  requested  by  the  secretary  of  agriculture 
or  any  agent  acting  under  his  instructions,  to  answer  cor- 
rectly to  the  best  of  his  knowledge,  under  oath  or  other- 
wise, all  questions  touching  his  knowledge  of  the  number 
of  bales,  the  classification,  the  price  or  bona  fide  price 
offered,  and  other  terms  of  purchase  or  sale,  of  any  cot- 
ton involved  in  any  transaction  participated  in  by  him, 
or  to  produce  all  books,  letters,  papers,  or  documents  in 
his  possession  or  under  his  control  relating  to  such  mat- 
ter. Any  such  person  who  shall,  within  a  reasonable  time 
prescribed  by  the  secretary  of  agriculture  or  such  agent, 
wilfully  fail  or  refuse  to  answer  such  questions  or  to  pro- 
duce such  books,  letters,  papers,  or  documents,  or  who 
shall  wilfully  give  any  answer  that  is  false  or  mislead- 
ing, shall  be  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  shall  be  punished  by  a  fine  not  exceeding 
$500.1* 

§  1154.  Person  intentionally  and  wilfully  making  false 
statement,  etc. — Punishment,  'riial  any  person  who  in- 
Iciitionally  and  knowingly  iiiakos  any  false  statement  or 
representatio7i  to  any  officer,  agent,  or  employee  of  the 
United  States  engaged  in  the  perfonnance  of  any  duty 
under  tliis  act  (Act  March  4,  1919),  or  falsely  represents 
to  any  of  said  persons  that  tlie  wheat  he  offers  for  sale 
was  grown  as  a  part  of  the  nineteen  hundred  and  eighteen 

13— Act    May    1,    1920,    41    Stat.  14— Soc.  6,  Act  March  4,  1919,  40 

688.  Stat.   479. 


Miscellaneous  Offenses  909 

or  nineteen  hundred  and  nineteen  crops  for  the  purpose 
of  securing  any  of  the  benefits  of  the  aforesaid  guaran- 
ties, or  any  person  who  wilfully  assaults,  resists,  impedes, 
or  interferes  with  any  officer,  agent,  or  employee  of  the 
Unitedr  States  in  the  execution  of  any  duty  authorized  to 
be  performed  by  or  pursuant  to  this  act,  or  any  person 
who  intentionally  and  knowingly  violates  any  regulation 
issued  pursuant  to  this  act,  except  as  otherwise  made 
punishable  in  this  act,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof,  shall  be  punished 
by  a  fine  not  exceeding  $1,000.^^ 

EXPOET 

§  1155.  Ownership  in  other  similar  associations.    That 

nothing  contained  in  section  7  of  the  act  entitled  ' '  An  act 
to  supplement  existing  laws  against  unlawful  restraints 
and  monopolies,  and  for  other  purposes,"  approved  Oc- 
tober fifteenth,  nineteen  hundred  and  fourteen,  shall  be 
construed  to  forbid  the  acquisition  or  ownership  by  any 
corporation  of  the  whole  or  any  part  of  the  stock  or 
other  capital  of  any  corporation  organized  solely  for  the 
purpose  of  engaging  in  export  trade,  and  actually  en- 
gaged solely  in  such  export  trade,  unless  the  effect  of 
such  acquisition  or  ownership  may  be  to  restrain  trade 
or  substantially  lessen  competition  within  the  United 
States.i^ 

§  1156.  Association  sale  for  export  trade  not  a  violation 
anti  port  act.  That  nothing  contained  in  the  act  entitled 
*'An  act  to  protect  trade  and  commerce  against  unlawful 
restraints  and  monopolies, ' '  approved  July  second,  eight- 
een hundred  and  ninety,  shall  be  construed  as  declaring 
to  be  illegal  an  association  entered  into  for  the  sole  pur- 
pose of  engaging  in  export  trade  and  actually  engaged 

15_Sec.    7,    March    4,    1919,    40  16— Sec.  3,  40  Stat.  517,  Act  Apr. 

Stat.  1352.  10,    1918. 


910  Criminal  Law 

solely  in  such  export  trade,  or  an  agreement  made  or  act 
done'  in  the  course  of  export  trade  by  such  association, 
provided  such  association,  agreement,  or  act  is  not  in 
restraint  of  trade  within  the  United  States,  and  is  not  in 
restraint  of  the  export  trade  of  any  domestic  competitor 
of  such  association.  And  provided  further,  That  such 
association  does  not,  either  in  the  United  States  or  else- 
where, enter  into  any  agreement,  understanding,  or  con- 
spiracy, or  do  any  act  which  artificially  or  intentionally 
enhances  or  depresses  prices  ^vithin  the  United  States  of 
commodities  of  the  class  exported  by  such  association,  or 
which  substantially  lessens  competition  within  the  United 
States  or  otherwise  restrains  trade  therein." 

CIVIL  EIGHTS 

§  1157.  All  persons  entitled  to  same  privileges  as  to 
inns,  public  conveyances  on  land  or  water.  All  persons 
within  the  jurisdiction  of  the  United  States  shall  be  en- 
titled to  the  full  and  equal  enjoyment  of  the  accommoda- 
tions, advantages,  facilities,  and  privileges  of  inns,  public 
conveyances  on  land  or  water,  theaters,  and  other  places 
of  public  amusement;  subject  only  to  the  conditions  and 
limitations  established  by  law,  and  applicable  alike  to 
citizens  of  every  race  and  color;  regardless  of  any  pre- 
vious condition  of  servitude." 

§  1158.  All  persons  enjoying  equal  privileges  as  to  inns 
and  conveyances — Punishment  for  violation.  That  any 
person  who  shall  violate  the  foregoing  section  [Sec. 
1157]  by  denying  to  any  citizen,  except  for  reasons  by 
law  applicable  to  citizens  of  every  race  and  color,  and 
regardless  of  any  previous  rondilioii  of  sciviludc,  and 
full   enjoyment    of  any    of  the   accoiniiiodnlioiis,   advan- 

17_Scc.     2,     Apr.     10,     1918,    40  18— Act  March  1,  1875,  Sec.  1,  18 

Stat.  517.  Stat.  335. 


Miscellaneous  Offenses  911 

tages,  facilities,  or  privileges  in  said  section  enumerated, 
or  by  aiding  or  inciting  such  denial,  shall,  for  every 
such  offense,  forfeit  and  pay  the  sum  of  five  hundred 
dollars  to  the  person  aggrieved  thereby,  to  be  recovered 
in  an  action  of  debt,  with  full  costs;  and  shall  also,  for 
every  such  offense,  be  deemed  guilty  of  a  misdemeanor, 
and,  upon  conviction  thereof,  shall  be  fined  not  less  than 
five  hundred  nor  more  than  one  thousand  dollars,  or 
shall  be  imprisoned  not  less  than  thirty  days  nor  more 
than  one  year:  Provided,  That  all  persons  may  elect  to 
sue  for  the  penalty  aforesaid  or  to  proceed  under  their 
rights  at  common  law  and  by  state  statutes;  and  having 
so  elected  to  proceed  in  the  one  mode  or  the  other ;  their 
right  to  proceed  in  the  other  jurisdiction  shall  be  barred. 
But  this  proviso  shall  not  apply  to  criminal  proceedings, 
either  under  this  act  or  the  criminal  law  of  any  state: 
And  provided  further.  That  a  judgment  for  the  penalty  in 
favor  of  the  party  aggrieved,  or  a  judgment  upon  an 
indictment,  shall  be  a  bar  to  either  prosecution  respec- 
tively." 

§  1159.  Offenses  committed  in  national  parks — Punish- 
ment. Sec.  4.  That  if  any  offense  shall  be  committed  in 
the  Yosemite  National  Park,  Sequoia  National  Park,  Gen- 
eral Grant  National  Park,  or  either  of  them,  which  of- 
fense is  not  prohibited  or  the  punishment  is  not  specifi- 
cally provided  for  by  any  law  of  the  United  States,  the  of- 
fender shall  be  subject  to  the  same  punishment  as  the 
laws  of  the  state  of  California  in  force  at  the  time  of  the 
commission  of  the  offense  may  provide  for  a  like  offense 
in  said  state;  and  no  subsequent  repeal  of  any  such- law  of 
the  state  of  California  shall  affect  any  prosecution  for 
said  offense  committed  within  said  parks,  or  either  of 
them. 

19— Act   March   1,   1875,   Sec.   2, 
18  Stat.  336. 


912  Criminal  Law 

Sec.  5.  That  all  hunting  or  the  killing,  wounding,  or 
capturing  at  any  time  of  any  wild  bird  or  animal,  except 
dangerous  animals,  when  it  is  necessary  to  prevent  them 
from  destroying  human  lives  or  inflicting  personal  injury, 
is  prohibited  within  the  limits  of  said  parks ;  or  shall  any 
fish  be  taken  out  of  any  of  the  \vaters  of  the  said  parks, 
or  either  of  them,  in  any  other  way  than  by  hook  and  line, 
and  then  only  at  such  seasons  and  such  times  and  manner 
as  may  be  directed  by  the  secretary  of  the  interior.  That 
the  secretary  of  the  interior  shall  make  and  publish  such 
general  rules  and  regulations  as  he  may  deem  necessary 
and  proper  for  the  management  and  care  of  the  park  and 
for  the  protection  of  the  property  therein,  especially  for 
the  preservation  from  injury  or  spoliation  of  all  timber, 
mineral  deposits  other  than  those  legally  located  prior 
to  the  passage  of  the  respective  acts  creating  and  estab- 
lishing said  parks,  natural  curiosities  or  wonderful  ob- 
jects within  said  parks,  and  for  the  protection  of  the 
animals  in  the  park  from  capture  or  destruction,  and 
to  prevent  their  being  frightened  or  driven  from  the 
said  parks;  and  he  shall  make  rules  and  regulations  gov- 
erning the  taking  of  fish  from  the  streams  or  lakes  in  the 
said  parks  or  either  of  them.  Possession  within  said 
parks,  or  either  of  them,  of  the  dead  bodies  or  any  part 
tlicreof  of  any  wild  bird  or  animal  shall  be-  prima  facie 
evidence  that  person  or  persons  having  same  are  guilty 
of  violating  this  act.  Any  person  or  persons,  or  stage  or 
express  company,  or  railway  company,  who  knows  or  has 
reason  to  believe  that  they  were  taken  or  killed  contrary 
to  the  ])n)visions  of  this  act,  and  who  receives  for  trans- 
))(tr1;i1  iuii  any  of  said  aiiliiials,  ])ii'(ls,  <ti"  fish  so  killed, 
caught,  or  taken,  or  who  sliall  violate  any  of  the  other 
])r()visioiis  of  this  act,  or  any  rule  or  regulation  that  may 
he  promulgated  by  the  secretary  of  the  interior,  with  ref- 
erence to  the  management  and  care  of  the  said  parks,  or 
either  of  them,  or  for  the  protection  of  the  T>i'"pcrty 
therein  for  the  preservation  from  injury  or  spoliation  of 


Miscellaneous  Offenses  913 

timber,  mineral  deposits,  other  than  those  legally  located 
prior  to  the  passage  of  the  respective  acts  creating  and 
establishing  said  parks,  natural  curiosities,  or  wonderful 
objects  within  said  parks,  or  either  of  them,  or  for  the 
protection  of  the  animals,  birds,  or  fish  in  the  said  parks, 
or  either  of  them,  or  who  shall  within  said  parks  commit 
any  damage,  injury  spoliation  to  or  upon  any  building, 
fence,  hedge,  gate,  guide  post,  tree,  wood,  undenvood, 
timber,  garden,  crops,  vegetables,  plants,  land,  springs, 
mineral  deposits  other  than  those  legally  located  prior  to 
the  passage  of  the  respective  acts  creating  and  estab- 
lishing said  parks,  natural  curiosities,  or  other  matter 
or  thing  growing  or  being  thereon,  or  situated  therein, 
shall  be  subject  to  the  penalty  provided  for  the  violation 
of  rules  and  regulations  of  the  secretary  of  the  interior 
authorized  by  Section  3  of  the  act  of  congress  approved 
August  25,  1916  (Thirty-ninth  Statutes,  page  535),  en- 
titled, "An  act  to  establish  a  National  Park  Service,  and 
for  other  purposes,  which  section  is  hereby  amended  by 
striking  therefrom  the  words  ' '  and  any  violations  of  any 
of  the  rules  and  regulations  authorized  by  this  act  shall 
be  punished  as  provided  for  in  section  50  of  the  act  en- 
titled 'An  act  to  codify  and  amend  the  Penal  Laws  of  the 
United  States,'  approved  March  4,  1909,  as  amended  by 
section  6  of  the  act  of  June  25,  1910  (Thirty-sixth  United 
States  Statutes  at  Large,  page  857),"  and  inserting  in 
lieu  thereof  the  words  ''and  any  violation  of  any  of  the 
rules  and  regulations  authorized  by  this  act  shall  be  pun- 
ished by  a  fine  of  not  more  than  $500  or  imprisonment  for 
not  exceeding  six  months  or  both,  and  be  adjudged  to  pay 
all  cost  of  the  proceedings":  Provided,  That  nothing 
herein  shall  be  construed  as  repealing  or  in  any  way  mod- 
ifying the  authority  granted  the  secretary  of  the  interior 
by  said  section  3  of  the  said  act  approved  August  25, 
1916,  to  sell  or  dispose  of  timber  in  national  parks  in 
those  cases  where,  in  his  judgment,  the  cutting  of  such 
timber  is  required  in  order  to  control  the  attacks  of  in- 

C.  L.— 58 


i^)14  Chimin AL  Law 

sects  or  diseases  or  otherwise  conserve  the  scenery  of  the 
natural  or  historic  objects  in  such  parks  and  to  provide 
for  the  destruction  of  such  animals  and  such  plant  life  as 
may  be  detrimental  to  the  use  of  said  parks,  or  the  au- 
thority granted  to  said  secretarj^  by  the  act  approved 
April  9, 1912,  entitled  *'An  act  to  authorize  the  secretary 
of  the  interior  to  secure  for  the  United  States  title  to 
patented  lands  in  the  Yosemite  National  Park,  and  for 
other  purposes,"  as  amended  by  the  act  approved  April 
16,  1914.20 

§  1160.  Illegal  for  grantee  to  accept  deed  from  Crow 
Indian — Punishment.  Sec.  2.  No  conveyance  of  land  by 
any  Crow  Indian  shall  be  authorized  or  approved  by  the 
Secretary  of  the  Interior  to  any  person,  company,  or  cor- 
poration who  owns  at  least  six  hundred  and  forty  acres 
of  agricultural  or  one  thousand  two  hundred  and  eighty 
acres  of  grazing  land  within  the  present  boundaries  of  the 
Crow  Indian  Reservation,  nor  to  any  person  who,  with  the 
land  to  be  acquired  by  such  conveyance,  would  become  the 
owner  of  more  than  one  thousand  two  hundred  and  eighty 
acres  of  agricultural  or  one  thousand  nine  hundred  and 
twenty  acres  of  grazing  land  within  said  reservation. 
Any  conveyance  by  any  such  Indian  made  cither  directly 
or  indirectly  to  any  such  person,  company,  or  corporation 
of  any  land  within  said  reservation  as  the  same  now 
exists,  whether  held  by  trust  patent  or  by  patent  in  fee 
shall  bo  void  and  the  grantee  accepting  the  same  shall 
be  guilty  of  a  misdomcanor  and  be  punished  by  a  line 
of  not  more  tliaii  ^5, ()()()  or  iinprisonment  not  more  than 
six  inontlis  or  hy  holh  such  (iin'  nnd  iiii])ris()iini(Mi<. 

'I'hc  classilicMlion  of  llic  lands  of  sucli  resei'vation  for 
tin;  i>iiri)ose  of  ;ill(»liiu'iit  thereof  shall  be  made  as  pro- 
vided in  tlie  act  ol'  congress  approved  June  25,  1910 
(Thirty-sixlli  Slahilcs  at  I.arge,  i)age  859),  which  chissi- 

20— Act    Juno    2,    1920,    41    Stut. 
731. 


Miscellaneous  Offenses  915 

fication  with  any  heretofore  made  by  authority  of  law 
as  to  lands  heretofore  allotted  shall  be  conclusive,  for 
the  purposes  of  this  section,  as  to  the  character  of  the 
land  involved.^^ 

LABOR 

§  1161.  Establishing  eight  hour  a  day  standard.  That 
beginning  January  first,  nineteen  hundred  and  seventeen, 
eight  hours  shall,  in  contracts  for  labor  and  service,  be 
deemed  a  day's  work  and  the  measure  or  standard  of  a 
day's  work  for  the  purpose  of  reckoning  the  compensa- 
tion for  services  of  all  employees  who  are  now  or  may 
hereafter  be  employed  by  any  common  carrier  by  rail- 
road, except  railroads  independently  owned  and  operated 
not  exceeding  one  hundred  miles  in  length,  electric  street 
railroads,  and  electric  interurban  railroads,  which  is  sub- 
ject to  the  provisions  of  the  act  of  February  fourth, 
eighteen  hundred  and  eighty-seven,  entitled  '*An  act  to 
regulate  commerce,"  as  amended,  and  who  are  now  or 
may  hereafter  be  actually  engaged  in  any  capacity  in  the 
operation  of  trains  used  for  the  transportation  of  persons 
or  property  on  railroads,  except  railroads  independently 
owned  and  operated  and  not  exceeding  one  hundred  miles 
in  length,  electric  street  railroads,  and  electric  interurban 
railroads,  from  any  state  or  territory  of  the  United 
States  or  the  District  of  Columbia  to  any  other  state  or 
territorj^  of  the  United  States  or  the  District  of  Colum- 
bia, or  from  one  place  in  a  territory  to  another  place  in 
the  same  territory,  or  from  any  place  in  the  United 
States  to  an  adjacent  foreign  country,  or  from  any  place 
in  the  United  States  through  a  foreign  country  to  any 
other  place  in  the  United  States:  Provided,  That  the 
above  exception  shall  not  apply  to  railroads  through  less 
than  one  hundred  miles  in  length  whose  principal  busi- 

21— Act   June   4,    1920,   41    Stat. 
752. 


916  Ckimixal  Law 

ness  is  leasing  or  furnishing  tenninal  or  transfer  facilities 
to  other  railroads,  or  are  themselves  engaged  in  the  trans- 
fers of  freight  between  railroads  or  between  railroads 
and  industrial  plants.^'' 

§  1162.  President  to  appoint  commission.  The  Presi- 
dent shall  appoint  a  commission  of  three,  which  shall 
observe  the  operation  and  e:ffects  of  the  institution  of  the 
eight-hour  standard  workday  as  above  defined  and  the 
facts  and  conditions  affecting  the  relations  between  such 
common  carriers  and  employees  during  a  period  of  not 
less  than  six  months  nor  more  than  nine  months,  in  the 
discretion  of  the  commission,  and  within  thirty  days 
thereafter  such  commission  shall  report  its  findings  to  the 
President  and  congress;  that  each  member  of  the  com- 
mission created  under  the  provisions  of  this  act  shall 
receive  such  compensation  as  may  be  fixed  by  the  Presi- 
dent. That  the  sum  of  $25,000,  or  so  much  thereof  as 
may  be  necessary,  be,  and  hereby  is,  appropriated,  for 
the  necessary  and  proper  expenses  incurred  in  connection 
with  the  work  of  such  commission,  including  salaries,  per 
diem,  traveling  expenses  of  members  and  employees,  and 
rent,  furniture,  office  fixtures  and  supplies,  books,  sal- 
aries, and  other  necessary  expenses,  the  same  to  be  ap- 
jiroved  by  the  chairman  of  said  commission  and  audited 
by  the  proper  accounting  officers  of  the  treasury.'^' 

§  1163.  Pending  report  of  commission  the  eight  hour 
a  day  not  reduced.  Pending  the  report  of  the  commission 
licrein  jirovided  lor  and  for  a  period  of  tliirty  days  there- 
after the  comi)eiisatioii  of  railway  em])loyecs  subject  to 
til  is  act  for  a  standard  eight  hour  workday  shall  not  be 
reduced  below  the  present  standard  day's  wage,  and  for 
all   iiecessai*y  time  in  excess  of  eight  hours  such  em- 

22— 39  Stat.  721,  Sec.  ],  Act.  Sept.  23— .39   Stat,   at  Large   722,   Sec. 

3,   r),    1916.  1,  Act  Sept.  3,  5,  1916. 


Miscellaneous  Offenses  917 

ployees  shall  be  paid  at  a  rate  not  less  than  the  pro  rata 
rate  for  such  standard  eight  hour  workday.^* 

§  1164.  Punishment  of  violation.  Any  person  violating 
any  provision  of  this  act  shall  be  guilty  of  a  misdemeanor 
and  upon  conviction  shall  be  fined  not  less  than  $100  and 
not  more  than  $1,000,  or  imprisoned  not  to  exceed  one 
year,  or  both.^^ 

§  1165.  Contractor  or  officer  of  U.  S.  punished  for  vio- 
lation of  United  States  labor  provisions.  Any  officer  or 
agent  of  the  government  of  the  United  States  or  of  the 
District  of  Columbia,  or  any  contractor  or  subcontractor 
whose  duty  it  shall  be  to  employ,  direct  or  control  any 
laborer  or  mechanic  employed  upon  a  public  work  of  the 
United  States  or  of  the  District  of  Columbia,  or  any  per- 
son employed  to  perform  services  similar  to  those  of  la- 
borers and  mechanics  in  connection  with  dredging  or 
rock  excavation  in  any  river  or  harbor  of  the  United 
States  or  of  the  District  of  Columbia,  who  shall  inten- 
tionally violate  any  provision  of  this  act,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  for  each  and  every  such  of- 
fense shall,  upon  conviction,  be  punished  by  a  fine  not  to 
exceed  one  thousand  dollars,  or  by  imprisonment  for  not 
more  than  six  months,  or  by  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court  having  jurisdiction 
thereof.^^ 

§  1166.  U.  S.  compensation  law — Affidavit.  During  the 
first  three  days  of  disability  the  employee  shall  not  be 
entitled  to  compensation  except  as  provided  in  section 
nine.  No  compensation  shall  at  any  time  be  paid  for  such 
period.^'' 

24—39    Stat,   at   Large   722,   Sec.  26— See.  2,  Act  March  3,  1913,  37 

3,  Act  Sept.  3,  5,  1916.  Stat,  at  Large  726, 

25—39   Stat,   at    Large   722,   See.  27— Act  Sept.  7,  1916,  Sec.  2,  39 

4,  Act  Sept.  3,  5,  1916.  Stat.  743. 


918  Ckiminal  Law 

§  1167.  Perjury  to  make  false  affidavit  for  U.  S.— Con- 
spirators. Whoever  makes,  in  any  affidavit  required  un- 
der section  four  or  in  any  claim  for  compensation,  any 
statement,  knowing  it  to  be  false,  shall  be  guilty  of  per- 
jury and  shall  be  punished  by  a  fine  of  not  more  than 
$2,000,  or  by  imprisonment  for  not  more  than  one  year,  or 
by  both  such  fine  and  imprisonment.^* 

§  1168.  An  act  to  create  a  Federal  Power  Commission; 
to  provide  for  the  improvement  of  navigation;  the  devel- 
opment of  water  power;  the  use  of  the  public  lands  in 
relation  thereto,  and  to  repeal  section  18  of  the  river 
and  harbor  appropriation  act,  approved  August  8,  1917, 
and  for  other  purposes,  (f)  To  prescribe  rules  and  reg- 
ulations for  the  establishment  of  a  system  of  accounts  and 
for  the  maintenance  thereof  by  licensees  hereunder;  to 
examine  all  books  and  accounts  of  such  licensees  at  any 
time;  to  require  them  to  submit  at  such  time  or  times  as 
the  commission  may  require  statements  and  reports,  in- 
cluding full  information  as  to  assets  and  liabilities,  cap- 
italization, net  investment  and  reduction  thereof,  gross 
receipts,  interest  due  and  paid,  depreciation  and  other 
reserves,  cost  of  project,  cost  of  maintenance  and  opera- 
tion of  the  project,  cost  of  renewals  and  replacements 
of  the  project  works,  and  as  lo  depreciation  of  llic  i)roj- 
ect  works  and  as  to  production,  transmission,  use  and 
sale  of  power;  also  to  require  any  licensee  to  make  ade- 
quate provision  for  currently  detennining  said  costs  and 
other  facts.  All  such  statements  and  reports  shall  be 
made  upon  oath,  unless  otherwise  specified,  and  in  such 
form  and  on  such  blanks  as  tlie  connnission  may  require. 
Any  person  who,  foi-  llic  pnii)(»sc  of  deceiving,  makes  or 
causes  to  be  made  any  false  entry  in  the  books  or  the 
accr)unts  of  such  licensee,  and  any  person  who,  for  the 
purpose  of  deceiving  makes  or  causes  to  be  made  any 

28— Act   Sept.    7,    1916,   Sec.    .^9, 
39  Stat.  749. 


Miscellaneous  OFFENSEb  919 

false  statement  or  report  in  response  to  a  request  or 
order  or  direction  from  the  commission  for  the  state- 
ments and  report  herein  referred  to  shall,  upon  convic- 
tion, be  fined  not  more  than  $2,000  or  imprisoned  not 
more  than  five  years,  or  both.''® 

§  1169.  Dispute  before  labor  board— Compelled  to  tes- 
tify—No incrimination,  except  perjury.  Sec.  309.  Any 
party  to  any  dispute  to  be  considered  by  an  Adjustment 
Board  or  by  the  Labor  Board  shall  be  entitled  to  a  hear- 
ing either  in  person  or  by  counsel. 

Sec.  310.  (a)  For  the  efficient  administration  of  the 
functions  vested  in  the  Labor  Board  by  this  title,  any 
member  thereof  may  require,  by  subpoena  issued  and 
signed  by  himself,  the  attendance  of  any  witness  and  the 
production  of  any  book,  paper,  document,  or  other  evi- 
dence from  any  place  in  the  United  States  at  any  desig- 
nated place  of  hearing,  and  the  taking  of  a  deposition 
before  any  designated  person  having  power  to  admin- 
ister oaths.  Li  the  case  of  a  deposition  the  testimony 
shall  be  reduced  to  writing  by  the  person  taking  the 
deposition  or  under  his  direction,  and  shall  then  be  sub- 
scribed to  by  the  deponent.  Any  member  of  the  Labor 
Board  may  administer  oaths  and  examine  any  witness. 
Any  witness  summoned  before  the  board  and  any  wit- 
ness whose  deposition  is  taken  shall  be  paid  the  same 
fees  and  mileage  as  are  paid  witnesses  in  the  courts  of 
the  United  States. 

(b)  In  case  of  failure  to  comply  with  any  subpoena 
or  in  case  of  the  contumacy  of  any  witness  appearing 
before  the  Labor  Board,  the  board  may  invoke  the  aid  of 
any  United  States  District  Court.  Such  court  may  there- 
upon order  the  witness  to  comply  with  the  requirements 
of  such  subpoena,  or  to  give  evidence  touching  the  mat- 
ter in  question,  as  the  case  may  be.    Any  failure  to  obey 

29 — Paragraph   (f)    of  Section  4, 
Act  of  June  10,  1920,  41  Stat.  1066. 


920  Criminal  Law 

such  order  may  be  punished  by  such  court  as  a  contempt 
thereof. 

(c)  No  person  shall  be  excused  from  so  attending  and 
testifying  or  deposing,  nor  from  so  producing  any  book, 
paper,  document,  or  other  evidence  on  the  ground  that 
the  testimony  or  evidence,  documentary  or  otherwise, 
required  of  him  may  tend  to  incriminate  him  or  subject 
him  to  a  penalty  or  forfeiture;  but  no  natural  person  shall 
be  prosecuted  or  subjected  to  any  penalty  or  forfeiture 
for  or  on  account  of  any  transaction,  matter,  or  thing, 
as  to  which  in  obedience  to  a  subpoena  and  under  oath, 
he  may  so  testify  or  produce  evidence,  documentary  or 
othenvise.  But  no  person  shall  be  exempt  from  prosecu- 
tion and  punishment  for  perjury  committed  in  so  testi- 
fying.^" 

OFFICERS  AKD  EMPLOYEES 

§  1170.  United  States  officers  converting  funds  coming 
to  their  possession — Punishment.  Be  it  Enacted  by  the 
Senate  and  House  of  Kepresentativos  of  the  United  States 
of  America  in  Congress  Assembled,  That  any  United 
States  marshal,  clerk,  receiver,  referee,  trustee,  or  other 
officer  of  a  United  States  court,  or  any  deputy,  assistant, 
or  employee  of  any  such  marshal,  clerk,  receiver,  referee, 
trustee,  or  other  officer  who  shall,  after  demand  by  the 
party  entitled  thereto,  unlawfully  retain  or  who  shall 
convert  to  his  own  use  or  to  the  use  of  another  any 
moneys  received  for  on  account  of  costs  or  advance  de- 
posits to  cover  fees,  expenses,  or  costs,  deposits  for  fees 
or  expenses  in  bankruptcy  cases,  composition  funds  or 
money  of  ])aiikni])t  estates,  fees  in  naturalization  mat- 
ters, or  any  other  money  whatever  which  has  come  into 
his  hands  by  virtue  of  his  official  relation  or  by  the  fact 

30— Act  March  1,  1920,  41  Stat. 
472. 


Miscellaneous  Offenses  921 

of  his  official  position  or  employment  shall  be  deemed 
guilty  of  embezzlement  and  shall,  where  the  offense  is 
not  otherwise  punishable  by  some  statute  of  the  United 
States,  be  fined  not  more  than  double  the  value  of  the 
money  thus  retained  or  converted,  or  imprisoned  not 
more  than  ten  years,  or  both ;  and  it  shall  not  be  a  defense 
in  such  case  that  the  accused  person  had  an  interest,  con- 
tingent or  otherwise,  in  some  part  of  such  moneys  or  of 
the  fund  from  which  they  were  retained  or  converted. ^^ 

§  1171.  Federal  board  vocational  education — Discrimi- 
nation against  industrial  organizations,  etc. — Punish- 
ment. Sec.  7.  That  the  Federal  Board  for  Vocational 
Education  is  hereby  authorized  and  empowered  to  receive 
such  gifts  and  donations  from  either  public  or  private 
sources  as  may  be  offered  unconditionally.  All  moneys 
received  as  gifts  or  donations  shall  be  paid  into  the 
treasury  of  the  United  States,  and  shall  constitute  a  per- 
manent fund,  to  be  called  the  "Special  fund  for  voca- 
tional rehabilitation  of  disabled  persons,"  to  be  used 
under  the  direction  of  the  said  board  to  defray  the  ex- 
penses of  providing  and  maintaining  courses  of  voca- 
tional rehabilitation  in  special  cases,  including  the  pay- 
ment of  necessary  expenses  of  persons  undergoing  train- 
ing. A  full  report  of  all  gifts  and  donations  offered  and 
accepted,  together  with  the  names  of  the  donors  and  the 
respective  amounts  contributed  by  each,  and  all  disburse- 
ments therefrom  shall  be  submitted  annually  to  congress 
by  said  board:  Provided,  That  no  discrimination  shall 
be  made  or  permitted  for  or  against  any  person  or  per- 
sons who  are  entitled  to  the  benefits  of  this  act  because 
of  membership  or  nonmembership  in  any  industrial,  fra- 
ternal, or  private  organization  of  any  kind  under  a  pen- 
alty of  $200  for  every  violation  thereof.^^ 

31— Approved   May  29,   1920,   41  32— Approved    June    2,    1920,    41 

Stat.    630.  Stat.    737. 


922  Criminal  Law 

§  1172.  Clerk  in  Treasury  Department  carrying  on 
business — Punishment.  Every  clerk  employed  in  the 
Treasury  Department  who  carries  on  any  trade  or  busi- 
ness in  the  funds  or  debts  of  the  United  States,  or  of  any 
state,  or  in  any  kind  of  public  property,  or  who  takes  or 
applies  to  his  own  use  any  emolument  or  gain  for  nego- 
tiating or  transacting  any  business  in  the  department, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  punished 
by  a  fine  of  five  hundred  dollars  and  removal  from  of- 
fice.*^ 

§  1173.  Officers  of  the  Treasury  Department  engaging 
in  business.  No  person  appointed  to  the  office  of  secre- 
tary of  the  treasury,  or  first  comptroller,  or  first  auditor, 
or  treasurer,  or  register,  shall  directly  or  indirectly  be 
concerned  or  interested  in  carrying  on  the  business  of 
trade  or  commerce,  or  be  owner  in  whole  or  in  part  of  any 
sea-vessel,  or  purchase  by  himself,  or  another  in  trust  for 
him,  any  public  lands  or  other  public  property,  or  be 
concerned  in  the  purchase  or  disposal  of  any  public 
securities  of  any  state,  or  of  the  United  States,  or  take 
or  apply  to  his  own  use  any  emolument  or  gain  for  ne-go- 
tiatiiig  or  transacting  any  business  in  the  Treasury  De- 
partment, other  than  what  shall  be  allowed  by  law;  and 
every  person  who  sliall  offend  against  any  of  the  })r()liibi- 
tions  of  this  section  shall  be  deemed  guilty  of  a  high  mis- 
demeanor and  forfeit  to  the  United  States  the  penalty 
of  three  thousand  dollars,  and  shall  upon  conviction  be 
removed  from  office,  and  forever  thereafter  be  incapable 
of  holding  any  office  nndcr  tlie  United  States;  and  if  any 
other  person  than  a  jiiihlic  jji'osccntor  shall  give  infor- 
mation of  any  sncii  olTcnsc,  upon  whicli  a  prosecution  and 
conviction  sliall  be  had,  one  lialf  the  aforesaid  penalty  of 
three  thousand  dollars,  when  recovered,  shall  be  for  the 
use  of  tlic  person  ii;-iving  sncii  infoi mat ioii.^* 

33— Act   March    3,   1791,    1    Stat.  34— Act    Sept.    2,    1789,    1    Stat. 

281,    R.    S.    244.  67,  R.  8.  243. 


Miscellaneous  Offenses  923 

§  1174.  Claims  against  the  United  States— Prosecution 
of  by  officers,  etc.,  engaged  since  April  6,  1917,  in  procur- 
ing army  supplies,  unlawful.  Prosecution  of  claims  by 
former  goverimient  employes:  That  it  shall  be  unlawful 
for  any  person  who,  as  a  commissioned  officer  of  the  army, 
or  officer  or  employee  of  the  United  States,  has  at  any 
time  since  April  6,  1917,  been  employed  in  any  bureau  of 
the  government  and  in  such  employment  been  engaged 
on  behalf  of  the  United  States  in  procuring  or  assisting 
to  procure  supplies  for  the  military  establishment,  or  who 
has  been  engaged  in  the  settlement  or  adjustment  of  con- 
tracts or  agreements  for  the  procurement  of  supplies  for 
the  military  establishment,  within  two  years  next  after 
his  discharge  or  other  separation  from  the  service  of  the 
government,  to  solicit  employment  in  the  presentation 
or  to  aid  or  assist  for  compensation  in  the  prosecution 
of  claims  against  the  United  States  arising  out  of  any 
contracts  or  agreements  for  the  procurement  of  supplies 
for  said  bureau,  which  were  pending  or  entered  into 
while  the  said  officer  or  employee  was  associated  there- 
with. A  violation  of  this  provision  of  this  chapter  shall 
be  punished  by  a  fine  of  not  more  than  $10,000  or  impris- 
onment for  not  more  than  one  year,  or  both:  Provided, 
That  all  acts  or  parts  of  acts  inconsistent  with  any  of  the 
provisions  of  this  act  are  hereby  repealed.^^ 

§  1175.  Federal  deficiency  act  for  the  fiscal  year  1919, 
using  funds  influencing  congressmen.  That  hereafter  no 
part  of  the  money  appropriated  by  this  or  any  other  act 
shall,  in  the  absence  of  express  authorization  by  congress, 
be  used  directly  or  indirectly  to  pay  for  any  personal 
service,  advertisement,  telegram,  telephone,  letter, 
printed  or  written  matter,  or  other  device,  intended  or 
designed  to  influence  in  any  manner  a  member  of  con- 
gress to  favor  or  oppose,  by  vote  or  otherwise,  any  legis- 

35 — Part  of  Chapter  IV,  approved 
July  11,  1919,  41  Stat.  131. 


924  Ceiminal  Law 

lation  or  appropriatiou  by  congress,  whether  before  or 
after  the  introduction  of  any  bill  or  resolution  propos- 
ing such  legislation  or  appropriation;  but  this  shall  not 
prevent  officers  and  employees  of  the  United  States  from 
communicating  to  members  of  congress  on  the  request  of 
any  member  or  to  congress,  through  the  proper  official 
channels,  requests  for  legislation  or  appropriations  which 
they  deem  necessary  for  the  efficient  conduct  of  the  pub- 
lic business. 

Any  officer  or  employee  of  the  United  States  who,  after 
notice  and  hearing  by  the  superior  officer  vested  with 
the  power  of  removing  him,  is  found  to  have  violated  or 
attempted  to  violate  this  section,  shall  be  removed  by 
such  superior  officer  from  office  or  employment.  Any 
officer  or  employee  of  the  United  States  who  violates 
or  attempts  to  violate  this  section  shall  also  be  guilty 
of  a  misdemeanor  and  on  conviction  thereof  shall  be  pun- 
ished by  a  fine  of  not  more  than  $500  or  by  imprisonment 
for  not  more  than  one  year,  or  both. 

That  this  act  hereafter  may  be  refeiTed  to  as  the 
''Third  Deficiency  Appropriation  Act,  fiscal  year 
1919.  "36 

§  1176.  Joint  resolution  authorizing  the  Secretary  of 
War  to  issue  permits  for  the  diversion  of  water  from  the 
Niagara  River — Punishment  for  illegal  use.  Rosol\(>(l 
l)y  the  senate  and  house  of  i-epresentativcs  of  ilio  United 
States  of  America  in  congress  assembled,  'I'lial  the  Sec- 
retary of  War  bo,  and  ho  is  hereby,  nnlliorizod  to  issue 
permits,  revocable  at  will,  for  the  diversion  of  water  in 
the  United  States  from  the  Niagara  River  above  the 
Falls  for  the  creation  of  power  to  individuals,  companies, 
or  c()i7)orations  wliicli  are  now  Mclually  ])r()(lu('iiig  power 
from  tlic  waters  of  said  rivor,  in  (luaiitilios  wliich  in  no 
event  shall  exceed  in  the  aggregate  a  daily  diversion  at 

36— Sec.  C,  Act  July  11,  1919,  41 
Stat.  08. 


Miscellaneous  Offenses  925 

the  rate  of  twenty  thousand  cubic  feet  per  second :  Pro- 
vided, That  this  resolution  shall  remain  in  force  until 
the  1st  day  of  July,  1920,  and  no  longer,  at  the  expira- 
tion of  which  time  all  permits  granted  hereunder  shall 
terminate,  unless  sooner  revoked,  or  unless  the  Congress 
shall  before  that  date  enact  legislation  regulating  the 
controlling  the  diversions  of  water  from  the  Niagara 
River,  in  which  event  this  resolution  shall  cease  to  be 
of  any  further  force  or  effect. 

Any  individuals,  companies,  or  corporations  violating 
any  of  the  provisions  of  said  permits,  or  diverting  water 
from  said  river  above  the  Falls  for  the  creation  of  power, 
except  under  a  pemiit  issued  under  the  authority  of  this 
law,  shall  be  guilty  of  a  misdemeanor  and  be  punished 
by  a  fine  not  exceeding  $2,000  nor  less  than  $500,  or  by 
imprisonment  not  exceeding  one  year  nor  less  than  thirty 
days,  or  both  in  the  discretion  of  the  court;  and  each 
and  every  day  on  which  such  violation  occurs  or  is  com- 
mitted shall  be  deemed  a  separate  offense:  Provided, 
That  where  such  violation  is  charged  against  the  com- 
pany or  corporate  body,  the  offense  shall  be  taken  and 
deemed  to  be  that  of  any  director,  officer,  agent,  or  em- 
ployee of  such  company  or  corporate  body  ordering, 
directing,  or  permitting  the  same.^' 

§  1177.  Amending  section  2138  Revised  Statute  of  the 
U.  S. — Indian  appropriation  act.  That  section  2138  of 
the  Revised  Statutes  of  the  United  States  is  hereby 
amended  so  as  to  read  as  follows:  "That  where  re- 
stricted Indians  are  in  possession  or  control  of  live  stock 
purchased  for  or  issued  to  them  by  the  government,  or 
the  increase  therefrom,  such  stock  shall  not  be  sold, 
transferred,  mortgaged,  or  otherwise  disposed  of,  except 
with  the  consent  in  writing  of  the  superintendent  or 
other  officer  in  charge  of  the  tribe  to  which  the  owner  or 

37 — Chapter  23,  approved  July  12, 
1919,  41  Stat.  163. 


926  Ckiminal  Law 

possessor  of  the  live  stock  belongs,  and  all  transactions 
in  violation  of  this  provision  shall  be  void.  All  such  live 
stock  so  purchased  or  issued  and  the  increase  therefrom 
belonging  to  restricted  Indians  and  grazed  in  the  Indian 
countiy  shall  be  branded  with  the  I  D  or  reservation 
brand  of  the  jurisdiction  to  which  the  owners  of  such 
stock  belong,  and  shall  not  be  removed  from  the  Indian 
country  except  with  the  consent  in  writing  of  the  super- 
intendent or  other  officer  in  charge  of  the  tribe  to  which 
the  owner  or  possessor  of  such  live  stock  belongs,  or  by 
order  of  the  Secretary  of  War,  in  connection  with  the 
movement  of  troops.  Eveiy  person  who  violates  the  pro- 
visions of  this  section  by  selling  or  othei'wise  disposing 
of  such  stock,  purchasing,  or  othenvise  acquiring  an  in- 
terest therein,  or  by  removing  such  stock  from  the  Indian 
country,  shall  be  fined  in  any  sum  not  more  than  $1,000, 
or  imprisoned  for  not  more  than  six  months,  or  both 
such  fine  and  imprisonment. "  ^^ 

§  1178.  Title  III  of  the  War  Finance  Corporation  Act, 
April  5,  1918 — General  penalties.  Whoever  wilfully  vio- 
lates any  of  the  provisions  of  this  act,  except  where  a 
different  penalty  is  provided  in  this  act,  shall,  upon  con- 
viction in  any  court  of  the  United  States  of  competent 
jurisdiction,  be  fined  not  more  than  $10,000  or  imprisoned 
for  not  more  than  one  year,  or  both;  and  whoever  know- 
ingly participates  in  any  such  violation,  except  where  a 
different  penalty  is  provided  in  this  act,  shall  be  punished 
])y  n  like  fino  or  iinprisoinnont,  or  bot.li.^® 

§  1179.  Contracts  made  with  Secretary  of  War,  Navy 
and  Interior,  must  be  in  writing,  it  shall  ho.  Ilic  duty  of 
tiic  Secretary  of  War,  of  tlic  Secretary  of  the  Navy,  and 
of  the  Secretary  of  the  Interior,  to  cause  and  require 
every  contract  made  by  them  severally  on  behalf  of  the 

.38— Act   June   30,    1019,   41   Stat.  :{9— Scr.  .'iOO.  40  Stat.  .""jU. 

9.     (Indian  Appropriation.) 


Miscellaneous  Offenses  927 

government,  or  by  their  officers  under  them  appointed 
to  make  such  contracts,  to  be  reduced  to  writing,  and 
signed  by  the  contracting  parties  with  their  names  at 
the  end  thereof;  a  copy  of  which  shall  be  filed  by  the 
officer  making  and  signing  the  contract  in  the  Returns 
Office  of  the  Department  of  the  Interior,  as  soon  after 
the  contract  is  made  as  possible,  and  within  thirty  days, 
together  with  all  bids,  offers,  and  proposals  to  him  made 
by  persons  to  obtain  the  same,  and  with  a  copy  of  any 
advertisement  he  may  have  published  inviting  bids,  of- 
fers, or  proposals  for  the  same.  All  copies  and  papers 
in  relation  to  each  contract  shall  be  attached  together 
by  a  ribbon  and  seal,  and  marked  by  numbers  in  regular 
order,  according  to  the  number  of  papers  composing  the 
whole  return.  Provided,  That  the  Secretary  of  War  or 
the  Secretary  of  the  Navy  may  extend  the  time  for  filing 
such  contracts  in  the  returns  office  of  the  Department  of 
the  Interior  to  ninety  days  whenever  in  their  opinion  it 
would  be  to  the  interest  of  the  United  States  to  follow 
such  a  course.*** 

§  1180.  Any  person  other  than  the  one  to  whom  a  cer- 
tificate was  issued,  who  falsely  presents  such  certificate 
is  guilty  of  a  misdemeanor.  That  any  person  who  shall 
knowingly  and  falsely  alter  or  substitute  any  name  for 
the  name  written  in  any  certificate  herein  required,  or 
forge  such  certificate,  or  knowingly  utter  any  forged  or 
fraudulent  certificate,  or  falsely  personate  any  person 
named  in  any  such  certificate,  and  any  person  other  than 
the  one  to  whom  a  certificate  was  issued  who  shall  falsely 
present  any  such  certificate,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined 
in  a  sum  not  exceeding  one  thousand  dollars,  and  im- 
prisoned in  a  penitentiary  for  a  term  of  not  more  than 
five  years.'*^ 

40— Eev.  Stat.  3744,  amended  Act    41— Sec.  11,  Act  Sept.  13,  1888, 
June  15,  1917,  40  Stat.  198.        25  Stat.  478. 


928  Criminal  Law 

§  1181.  Offenses  under  act  January  16,  1883,  relating 
to  civil  service.  That  any  said  commissioner,  examiner, 
copyist  or  messenger,  or  any  person  in  the  public  service 
who  shall  wilfully  and  corruptly,  by  himself  or  in  co- 
operation with  one  or  more  other  persons,  defeat,  de- 
ceive, or  obstruct  any  person  in  respect  of  his  or  her 
rig'ht  of  examination  according  to  any  such  rules  or  regu- 
lations, or  who  shall  wilfully,  corruptly  and  falsely 
mark,  grade,  estimate,  or  report  upon  the  examination 
or  proper  standing  of  any  person  examined  hereunder, 
or  aid  in  so  doing,  or  who  shall  wilfully  and  corruptly 
make  any  false  representations  concerning  the  same  or 
concerning  the  person  examined,  or  who  shall  wilfully 
and  corruptly  furnish  to  any  person  any  special  or  secret 
infomiation  for  the  purpose  of  either  improving  or  in- 
juring the  prosjoects  or  chances  of  any  person  so  exam- 
ined, or  to  be  examined,  being  appointed,  employed,  or 
promoted,  shall  for  each  such  offense  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof,  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars, 
nor  more  than  one  thousand  dollars,  or  l)y  imprisonment 
not  less  than  ten  days  nor  more  than  one  year,  or  by 
both  sucli  fine  and  imprisonment.*^ 

§  1182.  To  receive  greater  fee  than  allowed  by  sections 
6  to  15,  act  May  28,  1896,  by  officer,  illegal— Penalty. 

Tliat  any  oniccr  wlioso  coiHjtcnsation  is  iixcd  l)y  sections 
(')  1()  IT)  inclusive,  of  this  act  who  shall  directly  or  indi- 
rectly demand,  receive,  or  accept  any  fee  or  compensa- 
tion for  the  perfoiTnancc  of  any  official  service  other  than 
is  heroin  provided,  oi*  shall  wilfully  fail  or  neglect  to  ac- 
count for  or  pay  over  to  the  projjcr  officer  any  fee  received 
or  collected  by  him  shall,  upon  conviction  thereof,  be 
punished  by  a  fine  of  not  less  than  fifty  dollars  nor  more 
than  five  hundred  dollars,  or  by  imprisoimient,  at  the 

42— Sec.  .1,  22  stfit.  wr,. 


Miscellaneous  Offenses  929 

discretion  of  the  court,  not  exceeding  five  years,  or  by 
both  such  fine  and  imprisonment.*^ 

§  1183.  Tax  on  cotton  sale.  That  upon  each  contract 
of  sale  of  any  cotton  for  future  deliveiy  made  at,  on, 
or  in  any  exchange,  board  of  trade,  or  similar  institution 
or  place  of  business,  there  is  hereby  levied  a  tax  in  the 
nature  of  an  excise  of  2  cents  for  each  pound  of  the  cotton 
involved  in  any  such  contract.** 

§  1184.  Penalty  under  state  law  act  Aug*.  11,  1916,  cot- 
ton future  act.  The  payment  of  any  tax  levied  by  this 
act  shall  not  exempt  any  person  from  any  penalty  or  pun- 
ishment now  or  hereafter  provided  by  the  laws  of  any 
state  for  entering  into  contracts  of  sale  of  cotton  for 
future  deliveiy,  nor  shall  the  payment  of  any  tax  imposed 
by  this  act  be  held  to  prohibit  any  state  or  municipality 
from  imposing  a  tax  on  the  same  transaction.*^ 

§  1185.  Incriminating  testimony  under  cotton  future 
act.  That  no  person  whose  evidence  is  deemed  material 
by  the  officer  prosecuting  on  behalf  of  the  United  States 
in  any  case  brought  under  any  provision  of  this  act  shall 
withhold  his  testimony  because  of  complicity  by  him  in 
any  violation  of  this  act  or  of  any  regulation  made  pur- 
suant to  this  act  but  any  such  person  called  by  such  of- 
ficer who  testifies  in  such  case  shall  be  exempt  from 
prosecution  for  any  offense  to  which  his  testimony  re- 
lates." 

§  1186.  Additional  punishment  under  act  Aug.  11,  1916 
— Cotton  act.  That  in  addition  to  the  foregoing  punish- 
ment there  is  hereby  imposed,  on  account  of  each  viola- 

43 — Note  the  officers  referred  are  45 — Sec.  17,  39  Stat.  481. 

XJnited  States  District  Attorney  and  46— Sec.    16,    39    Stat.    481,    Act 

United  States  Marshals.  Aug.   11,   1916. 

44— Sec.  3,  Act  Aug.  11,  1916,  39 
Stat.   476. 

C.  L.— 59 


930  Criminal  Law 

tion  of  this  act,  a  penalty  of  $2,000,  to  be  recovered  in  an 
action  founded  on  this  act  in  the  name  of  the  United 
States  as  plaintiff,  and  when  so  recovered  one-half  of 
said  amount  shall  be  paid  over  to  the  person  giving  the 
information  upon  which  such  recovery  was  based.  It 
shall  be  the  duty  of  the  United  States  attorneys,  to  whom 
satisfactoiy  evidence  of  violations  of  this  act  is  fur- 
nished, to  institute  and  prosecute  actions  for  the  recovery 
of  the  penalties  prescribed  by  this  section.*' 

§  1187.  Punishment  for  act  Aug.  11,  1916— Cotton  Fu- 
ture Act.  That  any  person  liable  ta  the  payment  of  any 
tax  imposed  by  this  act  who  fails  to  pay,  or  evades  or 
attempts  to  evade  the  payment  of  such  tax,  and  any  per- 
son Avho  otherAvise  violates  any  provision  of  this  act,  or 
any  rule  or  regulation  made  in  pursuance  hereof,  shall 
be  deemed  guilty  of  a  misdemeanor,  and,  upon  convic- 
tion thereof,  shall  be  fined  not  less  than  $100  nor  more 
than  $20,000,  in  the  discretion  of  the  court;  and,  in  case 
of  natural  persons,  may,  in  addition,  be  punished  by  im- 
prisonment for  not  less  than  sixty  days  nor  more  than 
three  years,  in  the  discretion  of  the  court." 

§  1188.  Section  3744  Revised  Statutes  U.  S.  it  shall  be 
the  duty  of  the  Secretary  of  War,  of  the  Secretaiy  of  the 
Navy,  and  of  the  Secretary  of  the  Interior  to  cause  and 
require  eveiy  contract  made  ])y  them  severally  on  liehalf 
of  the  government,  or  by  their  officers  under  them  ap- 
pointed to  make  such  contracts,  to  be  reduced  to  writing, 
and  signed  by  the  contracting  parties  with  their  names 
at  tlio  end  thereof;  a  copy  of  whicli  sliall  be  filed  by  the 
officer  making  and  signing  the  contract  in  the  Return 
Office  of  the  Department  of  the  Interior,  as  soon  after 
the  contract  is  made  as  possible,  and  within  thirty  days, 
together  witli  all  bids,  offers,  and  proposals  to  him  made 

47— Sec.  15,  .39  Stat.  481. 
48— Sec.    14,    Aug.    11,    1916,    ;U) 
Rtnt.    480. 


Miscellaneous  Offenses  931 

by  persons  to  obtain  the  same  and  with  a  copy  of  any  ad- 
vertisement he  may  have  published  inviting  bids,  offers 
or  proposals  for  the  same.  All  the  copies  and  papers  in 
relation  to  each  contract  shall  be  attached  together  by  a 
ribbon  and  seal,  and  marked  by  numbers  in  regular 
order,  according  to  the  number  of  papers  composing  the 
whole  return. 

§  1189.  Unlawful  to  export  white  phosphorus  matches. 

That  after  Januaiy  first,  nineteen  hundred  and  fourteen, 
it  shall  be  unlawful  to  export  from  the  United  States  any 
white  phosphorus  matches.  Any  person  guilty  of  viola- 
tion of  this  section  shall  be  fined  not  less  than  one  thou- 
sand dollars  and  not  more  than  five  thousand  dollars,  and 
any  white  phosphorus  matches  exported  or  attempted  to 
be  exported  shall  be  confiscated  to  the  United  States  and 
destroyed  in  such  manner  as  may  be  prescribed  by  the 
Secretary  of  the  Treasury,  who  shall  have  power  to  issue 
such  regulations  to  customs  ofiicers  as  are  necessaiy  to 
the  enforcement  of  this  section.*® 

§  1190.  The  provision  of  lease  shall  not  apply  to  land. 

That  the  requirements  of  section  thirty-seven  hundred 
and  forty-four  of  the  Revised  Statutes  [Sec.  1188]  shall 
not  apply  to  the  lease  of  lands,  or  easements  therein,  or 
of  buildings,  rooms,  wharves,  or  rights  of  wharfage  or 
dockage,  or  to  the  hire  of  vessels,  boats,  and  other  float- 
ing craft,  for  use  in  connection  with  river  and  harbor 
improvements,  where  the  period  of  any  such  lease  or  hire 
is  not  to  exceed  three  months.'^^ 

§  1191.  Return  of  officer  must  be  sworn  to  before  officer 
— Form  of  affidavit.  It  shall  be  the  further  duty  of  the 
officer,  before  making  his  retuni,  according  to  the  preced- 
ing section  (3744  R.  S.)  [1188],  to  affix  to  the  same  his 

49— Sec.    11,    Act    Apr.    9,    1912,  50— Act  June  25,  1910,  36   Stat. 

37  Stat.  83.  676. 


932  Ceiminal  Law 

affidavit  in  the  following  form,  sworn  to  before  some 
magistrate  having  authority  to  administer  oaths:  *'I 
do  solemnly  swear  (or  affirm)  that  the  copy  of  contracts 
hereto  annexed  is  an  exact  copy  of  a  contract  made  by 

me  personally  with ;  that  I  made  the  same  fairly 

without  any  benefit  or  advantage  to  myself,  or  allowing 
any  such  benefit  or  advantage  coiTuptly  to  the  said 
,  or  any  other  person;  and  that  the  papers  ac- 
companying include  all  those  relating  to  the  said  con- 
tract, as  required  by  the  statute  in  such  case  made  and 
provided."  " 

§  1192.  Failure  to  make  return  by  U.  S.  officer— Pen- 
alty. Every  officer  who  makes  any  contract,  and  fails  or 
neglects  to  make  return  of  the  same,  according  to  the  pro- 
visions of  the  two  preceding  sections  (3744  and  3745  K. 
S.)  [1188,  1191],  unless  from  unavoidable  accident  or 
causes  not  within  his  control,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  fined  not  less  than  one  hundred 
dollars  nor  more  than  five  hundred,  and  imprisoned  to 
more  than  six  months.^* 

§  1193.  Public  printer  is  accountable  for  all  materials 
received  for  public  use — Penalty  for  failure.  The  Public 
Printer  shall  charge  himself  with,  and  bo  accountable 
for,  all  material  received  for  the  public  use.  The  foreman 
f)f  printing  and  binding  shall  make  out  estimates  of  the 
(|ii;ni1ity  and  kind  of  material  required  for  their  respec- 
tive (leparlnionts,  and  file  written  requisitions  therefor 
when  it  is  nooded.  The  Pul)lic  Printer  shall  furnish  the 
same  to  them  on  those  requisitions,  as  required  for  the 
public  service,  and  they  shall  receipt  to  him  and  ho  hold 
acoonntablo  for  all  material  so  received. ^^ 

51—11.  8.  374.'5,  Act  Juno  2,  1862,  .^S— Act   Jan.    12,   1895,   28   Stat. 

12  Stnt.  412.  605. 

52— Act  June  2,  1862,  R.  S.  3746, 
12  Stat.  412. 


Miscellaneous  Offenses  933 

§  1194.   Public  printer  defrauding  the  government.   If 

the  public  printer  shall  by  himself,  or  through  others  cor- 
ruptly collude  or  have  any  secret  understanding  with  any 
person  to  defraud  the  United  States,  or  whereby  the 
United  States  shall  be  made  to  sustain  a  loss,  he  shall,  on 
conviction  thereof  before  any  court  having  jurisdiction 
forfeit  his  office,  and  be  imprisoned  in  the  penitentiary 
for  a  tenii  not  exceeding  seven  years,  and  fined  in  a  sum 
not  exceeding  three  thousand  dollars.^^* 

§  1195.  Opening  or  tapping  water  mains  of  the  United 
States  water  supply,  subject  to  prosecution  —  Punish- 
ment. That  no  person,  unless  by  consent  of  the  chief  of 
engineers  in  charge  of  the  public  buildings  and  works, 
shall  tap  or  open  the  mains  or  pipes  laid  or  hereafter  to 
be  laid  by  the  United  States,  under  penalty  of  not  less 
than  fifty  nor  more  than  five  hundred  dollars.^^" 

§  1196.  Maliciously  breaking  or  destroying  government 
watermains  or  pipes,  punishable.  Every  person  who  ma- 
liciously breaks,  injures,  defaces,  or  destroys  any  main  or 
pipe,  bend,  branch,  valve,  hydrant,  service-pipe,  or  any 
other  fixture  used  for  the  distribution  of  water  through- 
out the  streets  and  avenues,  or  for  its  introduction  into 
the  houses,  tenements,  or  buildings  of  Washington  and 
Georgetown,  shall  be  punishable  by  imprisonment  in  tlie 
county  jail  for  not  more  than  two  years. ^* 

§  1197.  Maliciously  causing  water  supply  in  cities  of 
Washington  and  Georgetown  to  become  impure.  Every 
person  who  maliciously  commits  any  act  by  reason  of 
which  the  supply  of  water,  or  any  part  thereof,  to  the 
cities  of  Wasliini>"ton  and  Georgetown,  becomes  impure 

53a— Act  Jan.  12,  1895,  28  Stat.  53b— K.   S.   1803,  11  Stat.  436. 

605.  54— E.  S.  1804,  11  Stat.  436. 


934  Criminal  Law 

filthy,  or  unfit  for  use,  shall  be  fined  not  less  than  five 
hundred  nor  more  than  one  thousand  dollars,  or  impris- 
oned at  hard  labor  in  the  District  of  Columbia  not  more 
than  three  years  nor  less  than  one  year.^^ 

§  1198.  Violation  act  Aug.  24,  1912,  regulating  furbear- 
ing  animals — Punishment — Jurisdiction.  That  eveiy 
person  guilty  of  a  violation  of  any  of  the  provisions  of 
said  convention,  or  of  this  act,  or  of  any  regulation  made 
thereunder,  shall,  for  each  offense,  be  fined  not  less  than 
two  hundred  dollars  or  more  than  two  thousand  dollars, 
or  imprisoned  not  more  than  six  months,  or  both;  and 
every  vessel,  its  tackle,  apparel,  furniture,  and  cargo,  at 
any  time  used  or  employed  in  violation  of  this  act,  or  of 
the  regulations  made  thereunder,  shall  be  forfeited  to  the 
United  States. 

That  if  any  vessel  shall  be  found  within  the  waters 
to  which  this  act  applies,  having  on  board  fur-seal  skins 
or  sea-otter  skins,  or  bodies  of  seals  or  sea  otters,  or  ap- 
paratus or  implements  for  killing  or  taking  seals  or  sea 
otter,  it  shall  be  presumed  that  such  vessel  was  used  or 
employed  in  the  killing  of  said  seals  or  sea  otters,  or  that 
said  apparatus  or  implements  were  used  in  violation  of 
tiiis  act,  until  the  contrary  is  proved  to  the  satisfaction 
of  the  court,  in  so  far  as  such  vessel,  apparatus,  and  im- 
plements are  subject  to  the  jurisdiction  of  the  United 
States. 

That  any  violation  of  the  said  convention,  or  of  this  act 
or  of  the  regulations  thereunder,  may  be  prosecuted  either 
ill  tlie  district  court  of  Ainska,  or  in  any  district  court  of 
the  United  States  in  (';ilir()i-nia,  Oi'cgon,  or  Washington.^'' 

§  1199.  Violating  provision  of  act  Oct.  6,  1917,  40  Stat. 
388.  'I'liat  any  jx'i-son  violating  any  of  tlie  provisions  of 
tliis  act,  or  any  rules  or  regulations  made  tli(M'cunder, 

55 — K.  s.  1800,  n  Stat.  437.  Pncific    and    do    not    relate    to    the 

56 — These  violations  and  regula-  StatcH,  Hec.  6,  7  and  8,  Act  Aug.  24, 
tion.s  arc  really  applicable  to  North       1!»12,  .'17   Ht.nt.   .lOl. 


Miscellaneous  Offenses  935 

shall  be  guilty  of  a  misdemeanor  and  shall  be  pmiished  by 
a  fine  of  not  more  than  $5,000  or  by  imprisonment  not 
more  than  one  year,  or  by  both  such  fine  and  imprison- 
ment." 

§  1200.  Marshal  failing  to  serve  warrant  on  person 
charged  with  violating  civil  rights  act.  Every  marshal 
and  deputy  marshal  who  refuses  to  receive  any  warrant 
or  other  process  when  tendered  to  him,  or  refuses  or 
neglects  to  use  all  proper  means  diligently  to  execute 
the  same,  shall  be  liable  to  a  fine  in  the  sum  of  one  thou- 
sand dollars,  for  the  benefit  of  the  party  aggrieved  there- 
by.5« 

U.  S.  COURTS 

§  1201.  Duties  of  clerk  of  U.  S.  Courts,  etc. — Removed 
from  office — Penalty.  That  if  any  clerk  of  any  district 
or  circuit  court  of  the  United  States  shall  wilfully  refuse 
or  neglect  to  make  any  report,  certificate,  statement,  or 
other  document  required  by  law  to  be  by  him  made,  or 
shall  wilfully  refuse  or  neglect  to  forward  any  such  re- 
port, certificate,  statement,  or  document  to  the  depart- 
ment, officer,  or  person  to  whom,  by  law,  the  same  should 
be  forwarded,  the  President  of  the  United  States  is  em- 
powered, and  it  is  hereby  made  his  duty,  in  every  such 
case,  to  remove  such  clerk  so  ofi^ending  from  office  by  an 
order  in  writing  for  that  purpose.  And  upon  the  presen- 
tation of  such  order,  or  a  copy  thereof,  authenticated  by 
the  attorney-general  of  the  United  States,  to  the  judge  of 
the  court  whereof  such  offender  is  clerk,  such  clerk  shall 
thereupon  be  deemed  to  be  out  of  office,  and  shall  not 
exercise  the  functions  thereof.  And  such  district  judge, 
in  the  case  of  the  clerk  of  a  district  court,  shall  appoint  a 
successor;  and  in  the  case  of  the  clerk  of  a  circuit  court, 

57— Act.    Oct.    6,   1917,    40    Stat.  58— Act  May  31,    1870,   16   Stat. 

388.  142. 


936  Ckiminal  Law 

the  circuit  judge  shall  appoint  a  successor.  And  such 
person  so  removed  shall  not  be  eligible  to  any  appoint- 
ment as  clerk  or  deputy  clerk  for  the  period  of  two  years 
next  after  such  removal.^^ 

§  1202.  Failure  of  clerk  to  perform  duties  as  provided 
by  act  Feb.  22,  1875.  That  if  any  clerk  mentioned  in 
the  preceding  section  [1201]  shall  wilfully  refuse  or 
neglect  to  make  or  to  forward  any  such  report,  certificate, 
statement,  or  document  therein  mentioned,  he  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  punished 
by  a  fine  not  exceeding  one  thousand  dollars,  or  by  im- 
prisonment not  exceeding  one  year,  in  the  discretion  of 
the  court;  but  a  conviction  under  this  section  shall  not 
be  necessary  as  a  condition  precedent  to  the  removal  from 
office  provided  for  in  this  act.^" 

§1203.  Tax  on  decedent's  estates— What  is  person  — 
What  is  executor,  etc.  The  term  "person"  includes  part- 
nerships, coi'porations,  and  associations.  The  temi 
"United  States"  means  only  the  states,  the  territories 
of  Alaska  and  Hawaii,  and  the  District  of  Columbia. 
The  term  "executor"  means  the  executor  or  administra- 
tor of  the  decedent,  or  if  there  is  no  executor  or  adminis- 
trator, any  person  who  takes  possession  of  any  property 
of  the  decedent,  and  tlio  tenn  "collector"  means  the  col- 
lector of  internal  revenue  of  the  district  in  wliicli  was  the 
domicile  of  the  decedent  at  tlie  time  of  his  death,  or,  if 
there  was  no  such  domicile  in  the  United  States,  then  the 
collector  of  the  district  in  which  is  situated  the  part  of 
the  gross  estate  of  llic  decedent  in  11i<'  United  States,  or, 
if  such  ])art  of  tlie  gross  estate  is  situated  in  more  than 
one  district,  then  the  collector  of  internal  revenue  at  Bal- 
timore, Maryland. ^^ 

59_8ec.    — ,    Act    Feb.    22,    1875,  CI— Sec  200,  Ad  Hopt.  8,  ISM (5,  .'iO 

18   Stat.   334.  •  St.-it.   777. 

60— See.    G,    Act    Feb.    22,    1875, 
18  Stat.  334. 


Miscellaneous  Offenses  937 

§  1204.  The  executor  must  file  return  within  thirty- 
days.  The  executor,  within  thirty  days  after  qualifying 
as  such  or  after  coming  into  possession  of  any  property 
of  the  decedent,  whichever  event  first  occurs,  shall  give 
written  notice  tiiereof  to  the  collector.  The  executor  shall 
also,  at  such  times  and  in  such  manner  as  may  be  re- 
quired by  the  regulations  made  under  this  title,  file  with 
the  collector  a  return  under  oath  in  duplicate,  setting 
forth  (a)  the  value  of  the  gross  estate  of  the  decedent  at 
the  time  of  his  death,  or,  in  case  of  a  nonresident,  of  that 
part  of  his  gross  estate  situated  in  the  United  States;  (b) 
the  deductions  allowed  under  section  two  hundred  and 
three;  (c)  the  value  of  the  net  estate  of  the  decedent  as 
defined  in  section  two  hundred  and  three;  and  (d)  the 
tax  paid  or  payable  thereon;  or  such  part  of  such  infor- 
mation as  may  at  the  time  be  ascertainable  and  such  sup- 
plemental data  as  may  be  necessary  to  establish  the  cor- 
rect tax. 

Return  shall  be  made  in  all  cases  of  estates  subject  to 
the  tax  or  where  the  gross  estate  at  the  death  of  the 
decedent  exceeds  $60,000,  and  in  the  case  of  the  estate  of 
every  nonresident  any  part  of  whose  gross  estate  is  situ- 
ated in  the  United  States.  If  the  executor  is  unable  to 
make  a  complete  return  as  to  any  part  of  the  gross  estate 
of  the  decedent,  he  shall  include  in  his  return  a  descrip- 
tion of  such  part  and  the  name  of  every  person  holding  a 
legal  or  beneficial  interest  therein,  and  upon  notice  from 
the  collector  such  person  shall  in  like  manner  make  a  re- 
turn as  to  such  part  of  the  gross  estate.  The  commis- 
sioner of  Internal  Revenue  shall  make  all  assessments  of 
the  tax  under  the  authority  of  existing  administrative 
special  and  general  provisions  of  law"  relating  to  the  as- 
sessment and  collection  of  taxes.  Sec.  205,  61a  act  Sept. 
8, 1916,  39  Stat.  Sec.  205.    Act  Sept.  8,  1916,  39  Stat.  778. 

§  1205.  Act  Sept.  8,  1916 — Knowingly  making  false  re- 
turns of  decedent's  estate  tax.  Whoever  knowingly  makes 
any  false  statement  in  any  notice  or  return  required  to  be 


938  Criminal  Law 

filed  by  this  title  shall  be  liable  to  a  penalty  of  not  ex- 
ceeding $5,000,  or  imprisomnent  not  exceeding  one  year, 
or  both,  in  the  discretion  of  the  court. 

"Wlioever  fails  to  comply  with  any  duty  imposed  upon 
him  by  section  two  hundred  and  five,  or,  having  in  his 
possession  or  control  any  record,  file,  or  paper,  contain- 
ing or  supposed  to  contain  any  infomiation  concerning 
the  estate  of  the  decedent,  fails  to  exhibit  the  same  unon 
request  of  the  Commissioner  of  Internal  Kevenue  or  any 
collector  or  law  officer  of  the  United  States,  or  his  duly 
authorized  deputy  or  agent,  who  desires  to  examine  the 
same  in  the  performance  of  his  duties  under  this  title, 
shall  be  liable  to  a  penalty  of  not  exceeding  $500,  to  be 
recovered,  with  costs  of  suit,  in  a  civil  action  in  the  name 
of  the  United  States.^^ 

§  1206.  The  tax  imposed  in  the  decedent's  estates.  A 
tax  (hereinafter  in  this  title  referred  to  as  the  tax), 
equal  to  the  following  percentages  of  the  value  of  net 
estate,  to  be  detennined  as  provided  in  section  two  hun- 
dred and  three,  is  hereby  imposed  upon  the  transfer  of 
the  net  estate  of  cveiy  decedent  dying  after  the  passage 
of  this  act,  whether  a  resident  or  nonresident  of  the 
United  States. 

One  and  one-half  per  centum  of  the  amount  of  such 
net  estate  not  in  excess  of  $50,000; 

Three  per  centum  of  tlie  amount  by  whicli  such  net 
estate  exceeds  $50,000  and  does  not  exceed  $150,000; 

Four  and  one-half  per  centum  of  tlie  amount  by  whicli 
such  net  estate  exceeds  $150,000  and  does  not  exceed 
.$250,000; 

Six  per  conium  of  tlie  amount  by  which  such  net  estate 
exceeds  $250,000  and  does  not  exceed  $450,()()(); 

Seven  Jind  onc-hair  per  centum  of  the  amount  by  which 
such  net  estate  exceeds  $450,000  nnd  docs  not  exceed 
$1,000,000; 

62— Sec,  210.  39  Stat.  780. 


Miscellaneous  Offenses  939 

Nine  per  centum  of  the  amount  by  which  such  net 
estate  exceeds  $1,000,000  and  does  not  exceed  $2,000,000; 

Ten  and  one-half  jjcr  centum  of  the  amount  by  which 
such  net  estate  exceeds  $2,000,000  and  does  not  exceed 
$3,000,000. 

Twelve  per  centum  of  the  amount  by  which  such  net 
estate  exceeds  $3,000,000  and  does  not  exceed  $4,000,000; 

Thirteen  and  one-half  per  centum  of  the  amount  by 
which  such  net  estate  exceeds  $4,000,000  and  does  not 
exceed  $5,000,000;  and 

Fifteen  per  centum  of  the  amount  by  which  such  net 
estate  exceeds  $5,000,000. 

The  tax  on  the  transfer  of  the  net  estate  of  decedents 
dying  between  September  8,  1916,  and  the  passage  of  this 
act  shall  be  computed  at  the  rates  originally  prescribed 
in  the  act  approved  September  8,  1916.^^ 

BANKRUPTCY 

§  1207.  Under  the  Bankruptcy  Act  of  July  1,  1898,  the 
following  acts  are  punishable,  (a)  A  person  shall  be 
punished  by  imprisonment  for  a  period  not  to  exceed 
five  years  upon  conviction  of  the  offense  of  having  know- 
ingly and  fraudulently  appropriated  to  his  own  use,  em- 
bezzled, spent,  or  unlawfully  transferred  any  property 
or  secreted  or  destroyed  any  document  belonging  to  a 
bankrupt  estate  which  came  into  his  charge  as  trustee. 

(b)  A  person  shall  be  punished,  by  imprisonment  for 
a  period  not  to  exceed  two  years,  upon  conviction  of  the 
offense  of  having  knowingly  and  fraudulently  (1)  con- 
cealed while  a  bankrupt,  or  after  his  discharge,  from  his 
trustee  any  of  the  property  belonging  to  his  estate  in 
bankruptcy;  or  (2)  made  a  false  oath  or  account  in, 
or  in  relation  to,  any  proceeding  in  bankruptcy;  (3) 
Presented  under  oath  any  false  claim  for  proof  against 
the  estate  of  a  bankrupt,  or  used  any  such  claim  in  com- 
es— Sec.  201  and  301,  March  3, 
1917,  39  Stat.  1002. 


940  Criminal  Law 

position  personally  or  by  agent,  proxy,  or  attorney,  or 
as  agent,  proxy,  or  attorney;  or  (4)  received  any  mate- 
rial amount  of  property  from  a  bankrupt  after  the  fil- 
ing of  the  petition,  with  intent  to  defeat  this  act;  or  (5) 
extorted  or  attempted  to  extort  any  money  or  property 
from  any  person  as  a  consideration  for  acting  or  for- 
bearing to  act  in  bankruptcy  proceedings. 

(c)  A  person  shall  be  punished  by  fine,  not  to  exceed 
five  hundred  dollars,  and  forfeit  his  office,  and  the  same 
shall  thereupon  become  vacant,  upon  conviction  of  the 
offense  of  having  knowingly  (1)  acted  as  a  referee  in 
a  case  in  which  he  is  directly  or  indirectly  interested; 
or  (2)  purchased,  while  a  referee,  directly  or  indirectly, 
any  property  of  the  estate  in  bankruptcy  of  which  he  is 
referee;  or  (3)  refused,  while  a  referee  or  trustee,  to 
pennit  a  reasonable  opportunity  for  the  inspection  of 
the  accounts  relating  to  the  affairs  of,  and  the  papers 
and  records  or  estates  in  his  charge  by  parties  in  interest 
when  directed  by  the  court  so  to  do. 

(d)  A  person  shall  not  be  prosecuted  for  any  offense 
arising  under  this  act  unless  the  indictment  is  found  or 
the  information  is  filed  in  court  within  one  year  after 
the  commission  of  the  offense,^* 

§  1208.  Prohibition  against  importing  adulterated 
seeds — Punishment.  Tliat  from  and  after  six  months 
al'tci-  the  i)assago  of  this  act  the  importation  into  the 
United  vStates  of  seeds  of  alfalfa,  barley,  Canndinn  blue 
grass,  Kentucky  blue  grass,  awnless  brome  grass,  buck- 
wheat, clover,  field  corn,  kafir  corn,  meadow  fescue,  flax, 
millet,  oats,  orchard  grass,  rape,  redtop,  rye,  sorghum, 
timothy,  and  wheat,  or  mixtures  of  seeds  containing  any 
of  such  seeds  as  one  of  the  principal  component  parts, 
which  are  adulterated  or  unfit  for  seeding  purposes  un- 
dfT  the  terms  of  this  act,  is  hereby  prohibited;  and  the 

64— Rcc.  29,  Act  July  1,  1898,  30 
Stnt.   .'554. 


Miscellaneous  Offenses  941 

Secretary  of  the  Treasury  and  the  Secretary  of  Agricul- 
ture shall,  jointly  or  severally,  make  such  rules  and  reg- 
ulations as  will  prevent  the  importation  of  such  seeds 
into  the  United  States:  Provided,  however.  That  such 
seed  may  be  delivered  to  the  owner  or  consignee  thereof 
under  bond,  to  be  recleaned  in  accordance  with  and  sub- 
ject to  such  regulations  as  the  Secretary  of  the  Treas- 
ury may  prescribe,  and  when  cleaned  to  the  standard 
of  purity  specified  in  this  act  for  admission  into  the 
United  States,  such  seed  may  be  released  to  the  owner 
or  consignee  thereof,  after  the  screenings  and  other 
refuse  removed  from  such  seed  shall  have  been  disposed 
of  in  a  manner  prescribed  by  the  Secretary  of  Agricul- 
ture: Provided  further.  That  this  act  shall  not  apply  to 
the  importation  of  barley,  buckwheat,  field  com,  kafir 
corn,  sorghum,  flax,  oats,  rye,  or  wheat  not  intended  for 
seeding  purposes,  when  shipped  in  bond  through  the 
United  States  or  imported  for  the  purpose  of  manufac- 
ture, but  such  shipment  shall  be  subject  to  provisions 
of  the  act  of  August  5,  1909.^^ 

§  1209.  What  is  adulterated  seed.  That  seed  shall  be 
considered  adulterated  within  the  meaning  of  this  act — 

First.  When  seed  of  red  clover  contains  more  than 
three  per  centum,  by  weight,  of  seed  of  yellow  trefoil, 
or  any  other  seed  of  similar  appearance  to  and  of  lower 
market  value  than  seed  of  red  clover. 

Second.  When  seed  of  alfalfa  contains  more  than  three 
per  centum,  by  weight,  of  seed  of  yellow  trefoil,  burr 
clover  and  sweet  clover,  singly  or  combined. 

Third.  When  any  kind  or  variety  of  the  seeds,  or  any 
mixture  described  in  section  one  of  this  act  [1208],  con- 
tains more  than  five  per  centum,  by  weight,  of  seed  of 
another  kind  or  variety  or  lower  market  value  and  of 
similar  appearance;  Provided,  That  the  mixture  of  the 

65— Sec.    1,    Act    Aug.    24,    1912, 
37  Stat.   506. 


942  Criminal  Law 

seed  of  white  and  alsike  clover,  red  and  alsike  clover,  or 
alsike  clover  and  timothy,  shall  not  be  deemed  an  adulter- 
ation under  this  section.^^ 

§  1210.  Punishment  under  Act  August  24,  1912.  That 
any  person  or  persons  who  shall  knowingly  violate  the 
provisions  of  this  act,  shall  be  deemed  guilty  of  a  mis- 
demeanor and  shall  pay  a  fine  of  not  exceeding  five  hun- 
dred dollars  and  not  less  than  two  hundred  dollars :  Pro^ 
vided,  That  any  person  or  persons  who  shall  knowingly 
sell  for  seeding  purposes  seeds  or  grain  which  were  im- 
ported under  the  provisions  of  this  act  for  the  purpose 
of  manufacture  shall  be  deemed  guilty  of  a  violation  of 
this  act.^'' 

§  1211.  Salt  pork  to  be  inspected  for  transportation- 
Packages  must  be  marked— Punishment  for  forging 
marks,  etc.  That  the  Secretary  of  Agriculture  may 
cause  to  be  made  a  careful  inspection  of  salted  pork 
and  bacon  intended  for  exportation,  with  a  view  to  de- 
termining whether  the  same  is  wholesome,  sound,  and 
fit  for  human  food,  whenever  the  laws,  regulations,  or 
orders  of  the  government  of  any  foreign  countiy  to  which 
such  pork  or  bacon  is  to  be  exported  shall  require  in- 
spection thereof,  relathig  to  the  importation  thereof  into 
such  countiy,  and  also  whenever  any  buyer,  seller,  or 
exporter  of  such  meats  intended  for  exportation  shall  re- 
quest the  inspection  thereof. 

Such  inspection  sliall  be  made  at  the  place  where  such 
meats  are  packed  or  boxod,  and  each  package  of  such 
meats  so  inspected  shall  bear  the  marks,  stamps,  or  other 
device  for  identification  provided  for  in  the  last  clause 
of  tliis  section:  Provided,  That  an  inspection  of  such 
meats  may  also  be  made  at  tlie  phice  of  exportation  if 
ail  inspection  lias  not  been  made  at  the  place  of  pack- 
er,—Scc.  2,  Act  Aug.  24,  1912,  37  67— Sec.  4,  Act  Aug.  24,  1912, 
Stat.   507.                                                        37   Stat.   .-507. 


Miscellaneous  Offenses  943 

ing,  or  if  in  the  opinion  of  the  Secretary  of  Agriculture, 
a  re-inspection  becomes  necessary.  One  copy  of  any 
certificate  issued  by  any  such  inspector  shall  be  filed 
in  the  Department  of  Agriculture;  another  copy  shall 
be  attached  to  the  invoice  of  each  separate  shipment  of 
such  meat,  and  a  third  copy  shall  be  delivered  to  the 
•consignor  or  shipper  of  such  meat  as  evidence  that  pack- 
ages of  salted  pork  and  bacon  have  been  inspected  in 
accordance  with  the  provisions  of  this  act  and  found 
to  be  wholesome,  sound,  and  fit  for  human  food;  and 
for  the  identification  of  the  same  such  marks,  stamps, 
or  other  devices  as  the  Secretary  of  Agriculture  may  by 
regulation  prescribe  shall  be  affixed  to  each  of  such  pack- 
ages. Any  person  who  shall  forge,  counterfeit,  or  know- 
ingly and  wrongfully  alter,  deface,  or  destroy  any  of 
the  marks,  stamps,  or  other  devices  provided  for  in  this 
section  on  any  package  of  any  such  meats,  or  who  shall 
forge,  counterfeit,  or  knowingly  and  wrongfully  alter, 
deface,  or  destroy  any  certificate  in  reference  to  meats, 
provided  for  in  this  section,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  pun- 
ished by  a  fine  not  exceeding  one  thousand  dollars  or 
imprisonment  not  exceeding  one  year,  or  by  both  said 
punishments,  in  the  discretion  of  the  court.^^ 

§  1212.  Act  of  February  21,  1905,  relating  to  stamping 
"United  States  Assay"  unlawfully — Punishment  for  vio- 
lation. That  every  person,  partnership,  association,  or 
corporation  violating  the  provisions  of  this  act,  and 
every  officer,  director,  or  managing  agent  of  such  part- 
nership, association,  or  corporation  having  knowledge  of 
such  violation  and  directly  participating  in  such  viola- 
tion or  consenting  thereto,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction,  be  punished  with  a 
fine  of  not  more  than  five  thousand  dollars  or  imprison- 

68— Act  Aug.   30,   1890,  26  Stat. 
414. 


944  Ckiminal  Law 

ment  for  not  more  than  one  year,  or  both,  at  the  discre- 
tion of  the  court.®^ 

§  1213.  Act  of  June  13,  1906,  relating  to  dealer  in  gold 
and  silver  ware — Punishment  for  violation.  That  each 
and  every  person,  firm,  corporation,  or  association,  be- 
ing a  manufacturer  of  or  a  wholesale  or  retail  dealer  in 
gold  or  silver  jewelry,  gold  ware,  silver  goods,  or  silver- 
ware, who  or  which  shall  knowingly  violate  any  of  the 
provisions  of  this  act,  and  every  officer,  manager,  direc- 
tor, or  managing  agent  of  any  such  corporation  or  asso- 
ciation having  knowledge  of  such  violation  and  directly 
participating  in  such  violation  or  consenting  thereto, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  in  any  court  of  the  United  States  having 
jurisdiction  of  crimes  within  the  district  in  which  such 
violation  was  committed,  or  through  which  has  been  con- 
ducted the  transportation  of  the  article  in  respect  to 
which  such  violation  has  been  committed,  shall  be  pun- 
ished by  a  fine  of  not  more  than  five  hundred  dollars  or 
imprisonment  for  not  more  than  three  months,  or  both, 
at  the  discretion  of  tlie  court.  Whenever  the  offense 
is  begun  in  one  jurisdiction,  and  completed  in  another, 
it  may  be  dealt  with,  inquired  of,  tried,  determined,  and 
puiiislied  in  either  jurisdiction  in  the  same  manner  as  if 
the  offense  had  been  actually  and  wholly  committed 
therein.'® 

G9— Sec.  2,  Act  Feb.,  1905,  33  70— Sec.  5,  Act  Juno  13,  1906,  34 
Stat.  732.  Stat.  202. 


CHAPTER  LXVIII 

OFFENSES  RELATING  TO  MAILS 

§  1216.  Non-mailable  matter.  §  1223.  No     contract     for    carrying 

§  1217.  Letter  advising  treason,  etc.  the    mail    shall    be    made 

§  1218.  Punishment    for    advocating  with  any  person  who   has 

treason.  entered    into    combination 

§  1219.  Electric  urban  or  interurban  to   prevent    bidding,    pun- 
railroad  refusing  to  carry  ishment. 
mail.  §  1224.  Unlav?ful  use  of  naturaliza- 

§  1220.  Auditor     with     consent     of  tion  matter,  misdemeanor, 

postmaster    general    remit  §  1225.  Punishing     postmaster     for 

fine  and  penalties.  making  false  return  special 

§  1221.  Postmaster  general  may  dis-  delivery. 

charge  prisoner  for  debt.  §  1226.  Illegal  to   send  insect  pests 

§  1222.  No     contract     for     supplies  in  mail,  punishment. 

shall    be    made    with    any  §  1227.  Inspection  of  plants  at  state 

person    who    has    entered  expense,    proper   marking, 

into  combination  to  permit  etc. 
bidding,    punishment. 

§  1216.  Non-mailable  matter.  Sec.  1.  Every  letter, 
writing,  circular,  postal  card,  picture,  print,  engraving, 
photograph,  newspaper,  pamphlet,  book,  or  other  publi- 
cation, matter,  or  thing,  of  any  kind,  in  violation  of  any 
of  the  provisions  of  this  act  is  hereby  declared  to  be 
non-mailable  matter  and  shall  not  be  conveyed  in  the 
mails  or  delivered  from  any  postoffice  or  by  any  letter 
carrier:  Provided,  That  nothing  in  this  act  shall  be  so 
construed  as  to  authorize  any  person  other  than  an  em- 
ploye of  the  Dead  Letter  Office,  duly  authorized  by  law, 
or  other  person  upon  a  search  warrant  authorized  by 
law,  to  open  any  letter  not  addressed  to  himself. 

§  1217.  Letter  advising  treason,  etc.    Sec.  2.  Eveiy  let- 
ter, writing,   circular,   postal   card,   picture,   print,   en- 
graving,   photograph,    newspaper,    pamphlet,    book,    or 
c.  L.-60  945 


946  Criminal  Law 

other  publication,  matter,  or  thing,  of  any  kind,  con- 
taining any  matter  advocating  or  urging  treason,  insur- 
rection, or  forcible  resistance  to  any  law  of  the  United 
States,  is  hereby  declared  to  be  non-mailable. 

§  1218.  Punishment  for  advocating  treason.  Sec.  3. 
Whoever  shall  use  or  attempt  to  use  the  mails  or  Pos- 
tal Service  of  the  United  States  for  the  transmission 
of  any  matter  declared  by  this  title  to  be  non-mailable, 
shall  be  fined  not  more  than  $5,000,  or  imprisoned  not 
more  than  five  years,  or  both.  Any  person  violating 
any  provision  of  this  title  may  be  tried  and  punished 
either  in  the  district  in  which  the  unlawful  matter  or 
publication  was  mailed,  or  to  which  it  was  carried  by 
mail  for  delivery  according  to  the  direction  thereon, 
or  in  which  it  was  caused  to  be  delivered  by  mail  to 
the  person  to  whom  it  was  addressed.^ 

§  1219.  Electric  urban  or  interurban  railroad  refusing 
to  carry  mail.  Sec.  4.  That  it  shall  be  unlawful  for  any 
urban  or  interurban  electric  railroad  to  refuse  to  per- 
form mail  service  at  the  rates  or  methods  of  compensa- 
tion thus  provided  for  such  service  when  required  by 
the  Postmaster  General  so  to  do,  and  for  such  offense 
shall  be  fined  $100.  Each  day  of  refusal  shall  consti- 
tute a  separate  offense.^ 

§  1220.  Auditor  with  consent  of  Postmaster  General 
remit  fine  and  penalties.  In  all  cases  of  line,  pc^ualty, 
forn-ilurc,  or  <lisal)ility,  or  alleged  liability  for  any  sum 
of  money  by  way  of  damages  or  otliersvise,  under  any 
provision  of  law  in  relation  to  tlie  ofiieors,  empkiyees, 
operations,  or  business  of  the  postal  service,  the  Post- 
master General  may  prescribe  such  general  rules  and 

1-  Act  of  Congress  June  ir>,  1i)17,  2— Act  of  Congress,  July  2,  1918, 

Title  XII,  Part  1,  40  U.  H.  Stat.  Part  I,  40  U.  8.  Stat,  at  Large,  p. 
at  Large,  p.  230.  749. 


Offenses  Relating  to  Mails  947 

modes  of  proceeding  as  shall  appear  to  be  expedient, 
for  the  goveniment  of  the  Sixth  Auditor,  in  ascertain- 
ing the  fact  in  each  case  in  which  the  Auditor  shall 
certify  to  him  that  the  interests  of  the  Department  prob- 
ably require  the  exercise  of  his  powers  over  fines,  pen- 
alties, forfeitures,  and  liabilities;  and  upon  the  fact  be- 
ing ascertained,  the  Auditor  may,  with  the  written  con- 
sent of  the  Postmaster  General,  mitigate  or  remit  such 
fine,  penalty,  or  forfeiture,  remove  such  disability,  or 
compromise,  release,  or  discharge  such  claim  for  such 
sum  of  money  and  damages,  and  on  such  terms  as  to 
the  Auditor  shall  deem  just  and  expedient.' 

§  1221.  Postmaster  General  may  discharge  prisoner  for 
debt.  The  Postmaster  General  may  discharge  from  im- 
prisonment any  person  confined  in  jail  on  any  judgment 
in  a  civil  case,  obtained  in  behalf  of  the  Department, 
if  it  be  made  to  appear  that  the  defendant  has  no  prop- 
erty of  any  description.* 

VIOLATION  OF  POSTAL  LAWS 

§  1222.  No  contract  for  supplies  shall  be  made  with 
any  person  who  has  entered  into  combination  to  permit 
bidding — Punishment.  No  contract  for  furnishing  sup- 
plies to  the  Postoffice  Department  or  the  postal  service 
shall  be  made  with  any  person  who  has  entered,  or  pro- 
posed to  enter,  into  any  combination  to  prevent  the  mak- 
ing of  any  bid  for  furnishing  such  supplies,  or  to  fix 
a  price  or  prices  therefor,  or  who  has  made  any  agree- 
ment, or  given  or  performed,  or  promised  to  give  or 
perform,  any  consideration  whatever  to  induce  any  other 
person  not  to  bid  for  any  such  contract,  or  to  bid  at  a 
specified  price  or  prices  thereon;  and  if  any  person  so 
offending  is  a  contractor  for  furnishing  such  supplies, 
his  contract  may  be  annulled,  and  the  person  so  offend- 

3— E.  S.  409,  17  Stat.  324.  4— K.  S.  410,  17  Stat.  324. 


948  Criminal  Law 

ing  shall  be  liable  to  a  fine  of  not  less  than  one  hun- 
dred dollars  nor  more  than  five  thousand  dollars,  and 
may  be  further  punished,  in  the  discretion  of  the  court, 
by  imprisonment  for  not  less  than  three  months  nor 
more  than  one  year.^ 

§  1223.  No  contract  for  carryings  the  mail  shall  be  made 
with  any  person  who  has  entered  into  combination  to 
prevent  bidding" — Punishment.  No  contract  for  carrying 
the  mail  shall  be  made  with  any  person  who  has  en- 
tered, or  proposed  to  enter,  into  any  combination  to  pre- 
vent the  making  of  any  bid  for  carrying  the  mail,  or 
who  has  made  any  agreement,  or  given  or  performed, 
or  promised  to  give  or  perform,  anj^  consideration  what- 
ever to  induce  any  other  person  not  to  bid  for  any  such 
contract;  and  if  any  person  so  offending  is  a  contractor 
for  carrjdng  the  mail,  his  contract  may  be  annulled; 
and  for  the  first  offense  the  person  so  offending  shall 
be  disqualified  to  contract  for  carrying  the  mail  for  five 
years,  and  for  the  second  offense  shall  be  forever  dis- 
qualified.^ 

§  1224.  Unlawful  use  of  naturalization  matter — Mis- 
demeanor. All  mail  matter,  of  whatever  class,  relating 
to  naturalization,  including  duplicate  papers  required 
by  law  or  regulation  to  be  sent  to  the  Bureau  of  Nat- 
uralization by  clerks  of  State  or  Federal  courts,  ad- 
dressed to  the  Department  of  Labor,  or  the  Bureau  of 
Naturalization,  or  to  any  official  thereof,  and  indorsed 
**f)flicial  Business,"  shall  be  transmitted  free  of  post- 
age, and  by  registered  mail  if  necessary,  and  so  marked: 
Provided  fnrtlier,  Tliat  if  any  person  shall  make  use 
of  such  indorsement  to  avoid  payment  of  postage  or. 
registry  fee  on  his  or  her  private  letter,  package,  or  other 
matter  in  tlie  mail,  the  per.son  so  offending  sliall  be  guilty 

5— Sec.  2,  Act  Aug.  24,   1912,  37  C— R.  S.  3950,  Act  June  8,  1872, 

Stat.    553.  17  Stat.  314. 


Offenses  Relating  to  Mails  949 

of  a  misdemeanor,  and  subject  to  a  fine  of  $300,  to  bo 
prosecuted  in  any  court  of  competent  jurisdiction.''^ 

§  1225.  Punishing  postmaster  for  making  false  return 
special  delivery.  That  any  postmaster,  or  any  assistant 
postmaster,  clerk,  or  employee  of  a  postmaster,  who 
shall  make  any  false  return  or  record  of  the  receipt  or 
delivery  of  any  article  of  mailable  matter  as  being 
stamped  with  a  special-delivery  stamp,  or  shall  make  any 
false  return  of  the  number  of  articles  specially  deliv- 
ered from  his  office,  for  the  purpose  of  increasing  his 
compensation  under  the  provisions  of  this  act,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  on  conviction 
thereof,  shall  be  fined  not  less  than  one  hundred  dol- 
lars nor  more  than  five  hundred  dollars,  or  imprisoned 
for  a  term  of  not  less  than  thirty  days  nor  more  than 
one  year,  or  both,  such  fine  and  imprisonment  at  the 
discretion  of  the  court;  and  whenever,  upon  evidence 
deemed  satisfactory  to  him,  the  Postmaster-General 
shall  determine  that  any  such  false  return  has  been  made, 
he  may,  by  order,  fix  absolutely  the  compensation  of  the 
postmaster  for  such  special  delivery  during  any  quarter 
or  quarters  which  he  shall  deem  affected  by  such  false 
return,  and  the  Auditor  shall  adjust  the  postmaster's 
account  accordingly.® 

§  1226.  Illegal  to  send  insect  pests  in  mail — Punish- 
ment. That  any  letter,  parcel,  box,  or  other  package 
containing  the  gypsy  moth,  brown-tail  moth,  leopard 
moth,  plum  curculio,  hop  plant-louse,  boll  weevil,  or  any 
of  them  in  a  live  state,  or  other  insect  in  a  live  state 
which  is  notoriously  injurious  to  cultivated  crops,  includ- 
ing vegetables,  field  crops,  bush  fruits,  orchard  trees,  for- 
est trees,  or  shade  trees,  or  any  letter,  parcel  box,  or 

7— Act  Oct.  6,  1917,  40  Stat.  376. 
8— Sec.   3,  Act  Aug.   4,   1886,   34 
Stat.  221. 


950  Criminal  Law 

package  which  contains  the  eggs,  pupae,  or  lai-vae  of 
any  insect  injurious  as  aforesaid,  whether  sealed  as  first- 
class  matter  or  not,  is  hereby  declared  to  be  non-mail- 
able  matter,  except  when  mailed  for  scientific  purposes 
under  the  regulations  hereinafter  provided  for,  and  shall 
not  be  conveyed  in  the  mails,  nor  delivered  from  any 
postofifice,  nor  by  any  letter  carrier,  except  when  mailed 
for  scientific  purposes  under  the  regulations  hereinafter 
provided  for;  and  any  person  who  shall  knowingly  de- 
posit, or  cause  to  be  deposited,  for  mailing  or  deliveiy, 
anything  declared  by  this  section  to  be  non-mailable  mat- 
ter, or  cause  the  same  to  be  taken  from  the  mails  for 
the  purpose  of  retaining,  circulating,  or  disposing  of,  or  of 
aiding  in  the  retention,  circulation,  or  disposition  of  the 
same  shall,  for  each  and  every  offense,  be  fined,  upon 
conviction  thereof,  not  more  than  five  thousand  dollars, 
or  imprisoned  at  hard  labor  not  more  than  five  years,  or 
both,  at  the  discretion  of  the  court:  Provided,  That  noth- 
ing in  this  act  shall  authorize  any  person  to  open  any 
letter  or  sealed  matter  of  the  first-class  not  addressed  to 
himself.® 

§  1227.  Inspection  of  plants  at  State  expense — Proper 
marking,  etc. — Penalty  for  failure.  That  hereafter  when 
any  State  shall  provide  for  terminal  inspection  of  plants 
and  plant  products,  and  shall  establish  and  maintain,  at 
the  sole  expense  of  the  State,  such  inspection  at  one 
or  more  places  therein,  the  proper  officials  of  said  State 
may  submit  to  the  Secretary  of  Agriculture  a  list  of 
plants  and  plant  products  and  the  plant  posts  trans- 
mitted thereby,  that  in  the  opinion  of  said  officials  should 
be  subject  to  terminal  inspection  in  order  to  pre- 
vent the  introduction  or  dissominalion  in  said  State  of 
posts  injurious  to  agriculture.  Upon  his  approval  of 
said  list,  in  whole  or  in  part,  the  Secretary  of  Agricul- 

9— Sec.   2,   Act   Mar.  3,   1905,  33 
Rtat.    1270. 


Offenses  Relating  to  Mails  951 

ture  shall  transmit  the  same  to  the  Postmaster-General, 
and  thereafter  all  packages  containing  any  plants  or 
plant  products  named  in  said  approved  lists,  shall,  upon 
payment  of  postage  therefor,  be  forwarded  by  the  post- 
master at  the  destination  of  said  package  to  the  proper 
State  official  at  the  nearest  place  where  inspection  is 
maintained.  If  the  plant  or  plant  products  are  found 
upon  inspection  to  be  free  from  injurious  pests,  or  if 
infected,  shall  be  disinfected  by  said  official,  they  shall 
upon  payment  of  postage  therefor  be  returned  to  the 
postmaster  at  the  place  of  inspection  to  be  forwarded 
to  the  person  to  whom  they  are  addressed;  but  if  found 
to  be  infected  with  injurious  pests  and  incapable  of  sat- 
isfactory disinfection  the  State  inspector  shall  so  notify 
the  postmaster  at  the  place  of  inspection,  who  shall 
promptly  notify  the  sender  of  said  plants  or  plant  prod- 
ucts that  they  will  be  returned  to  him  upon  his  request 
and  at  his  expense,  or  in  default  of  such  request  that  they 
will  be  turned  over  to  the  State  authorities  for  destruc- 
tion. 

On  and  after  the  passage  and  approval  of  this  act  it 
shall  be  unlawful  for  any  person,  firm,  or  corporation, 
to  deposit  in  the  United  States  mails  any  package  con- 
taining any  plant  or  plant  product  addressed  to  any 
place  within  a  State  maintaining  inspection  thereof,  as 
herein  defined,  without  plainly  marking  the  package  so 
that  its  contents  may  be  readily  ascertained  by  an  in- 
spection of  the  outside  thereof.  Whoever  shall  fail  to 
so  mark  said  packages  shall  be  punished  by  a  fine  of  not 
more  than  $100. 

The  Postmaster-General  is  hereby  authorized  and  di- 
rected to  make  all  needful  rules  and  regulations  for 
carrying  out  the  purposes  hereof.^" 

10— Act    Mar.    4,    1915,    38    Stat. 
1113. 


CHAPTER  LXIX 

THE  NATIONAL  PKOHIBITION  ACT  AND  INTOXICATING 
,  LIQUOES 


§  1230.  To  provide  for  the  enforce-       §  1248. 
ment  of  War  Prohibition. 

§  1231.  Commissioner     must     report       §  1249. 
violation  of  War  Prohibi- 
tion. 

§  1232.  Where  liquor  is  kept  is  de-       §  1250. 
clared      to      be      common 
nuisance.  §  1251. 

§  1233.  District  attorney  and  attor- 
ney general  may  prosecute 
suit  in  equity.  §  1252. 

§  1234.  Commissioner  and  inspectors 

may  prosecute  all  offenses.       §  1253. 

§  1235.  Any  provision  hereof  invalid 

all  others  valid.  §  1254. 

§  1236.  Act    does    not    repeal    War 

Prohibition.  §  1255. 

§1237.  Meaning  of  "Liquor"  and 
"Intoxicating  Liquor." 

§  1238.  Commissioner  to  report  vio- 
lation and  district  attorney       §  1256. 
to  prosecute. 

§  1239.  After  act  becomes  effective 

liquor  cannot  bo  sold,  etc.       §  1257. 

§  1240.  Certain  articles  exempted. 

S  1241.  Commissioner      may      make       §  1258. 
analysis  if  necessary. 

fi  1242.  Prrmit  must   be   obtained. 

§  1243.  Physician      holding      pcniiit       §  1259. 
only  person   authorized   to 
prescribe.  8  12(50. 

S  1211.  Commissioner  must  issue 
blanks  for  prescriptions. 

§  1245.  Permit  may  be  revoked.  fi  1261. 

S  1240.  Permanent  record  must  be 
kept   of   sales,   etc. 

I  1247.  Wholesale     druggist    cannot       S  1262. 
sell   nt  retail. 

952 


Label  must  be  attached  to 
ever}'  container. 

Every  carrier  must  make 
record  of  shipment  when 
received. 

Shipper  must  notify  carrier 
of  nature  of  shipment. 

Unlawful  for  carrier  to  ac- 
cept shipment  upon  false 
statement. 

Order  to  ship  must  be  to  a 
good  faith  consignee. 

Unlawful  to  advertise  sale, 
etc. 

Unlaw^ful  to  advertise  sale 
of   utensil   or   contrivance. 

No  person  shall  knowingly 
receive  order  from  any 
person  for  sale  of  liquor, 
etc. 

Any  person  injured  by  in- 
toxicated person  has  right 
to  sue. 

ri:icc  wliorc  liquor  is  kept 
is    common    nuisance. 

Action  to  enjoin  may  be 
brought  in  the  name  of 
the  U.  S 

Any  intent  to  sell  liquor  may 
be  enjoined. 

Any  violation  of  injunrtion 
punished  as  contempt, 
summarily  by  the  court. 

Violation  to  have  in  posses- 
sion any  thing  to  aid  in 
manufacturing. 

Officer  may  take  vehicle  used 
in  tr.nnspnrting  liquor. 


The  National  Prohibition  Act 


953 


§  1263.  The  court  may  deliver  un- 
lawful liquor  to  any  de- 
department. 

§  1264.  Officer  authorized  to  enforce 
criminal  laws  may  act. 

§  1265.  Punishment  for  manufactur- 
ing, selling,  etc. 

§  1266.  No  person  can  excuse  him- 
self on  grounds  of  in- 
crimination. 

§  1267.  Delivery  to  common  carrier; 
jurisdiction  at  point  of 
delivery  to  consignee. 

§  1268.  Several  counts  may  be  joined 
and  conviction  had  for  all. 

§  1269.  After  Feb.  1,  1920,  posses- 
sion prima  facie  evidence, 
for  sale. 

§  1270.  All  reports  required  to  be 
filed  subject  to  inspection. 

§  1271.  All  laws  inconsistent  with 
this  act  are  repealed. 

§  1272.  All  provisions  of  this  Act 
invalid  does  not  affect 
others. 

§  1273.  Liquor  may  be  stored  in 
bonded    Avarehouses. 

§  1274.  The  commissioner  and  the 
attorney  general  may  em- 
ploy   assistants. 

§  1275.  Where  property  is  proceed- 
ed against  summons  must 
be  served  personally  on 
the  accused  if  in  jurisdic- 
tion. 

§  1276.  General  provisions  United 
States   Prohibition   Act. 

§  1277.  Eegulations,  etc.,  to  be  pre- 
scribed. 

§  1278.  Allowance  for  evaporation, 
leakage,  etc. 

§  1279.  Punishment  for  violating 
provisions  of  this  title. 

§  1280.  Discretionary  method  of  col- 
lecting tax. 

§  1281.  Eelease  of  seized  property 
under  bond. 


§  1282.  General  revenue  laws,  etc., 
applicable. 

§  1283.  Inconsistent  laws  repealed. 

§  1284.  Canal  Zone,  general  prohibi- 
tion of  liquors  within, 

§  1285.  Time  of  enforcement,  imme- 
diately. 

§  1286.  Alcohol  obtained  for  dena- 
turing purposes  under  Act 
June  7,  1906,  and  sells 
same ;    penalty. 

§  1287.  Every  owner,  agent,  etc.,  of 
brewery  who  attempts  or 
evades  the  payment  of  the 
tax  guilty  of  misdemeanor. 

§  1288.  Withdrawing  fermented  liq- 
uors from  cask  upon  which 
there  is  no  stamp;  pen- 
alty, 

§  1289.  Selling  fermented  liquors 
from  any  cask,  barrel,  or 
keg  upon  which  stamp  has 
not  been  affixed;   penalty. 

§  1290.  Counterfeiting  or  making 
false  stamp  for  fermented 
liquor ;   penalty, 

§  1291.  Stamp  on  hogshead  or  other 
receptacle  containing  fer- 
mented liquor,  must  not  be 
severed  or  defaced  except 
by  owner, 

§  1292.  Distiller  knowingly  using 
any  false  measure  under 
Act  July  20,  1868. 

§  1293.  Revenue  officers  permitting 
the  use  of  cancelled 
stamps,  under  Act  July 
20,    1868;    penalty. 

§  1294.  Adding,  before  pajTnent  of 
tax  on  distilled  spirits, 
substance  to  create  fic- 
titious proof  under  Act 
July  20,  1868;  punish- 
ment. 

§  1295.  Under  Act  Mar.  31,  1868, 
distiller  attempts  or  de- 
frauds government;  pun- 
ishment. 


954 


Criminal  Law 


11296.  Act  July  20,  1868,  distiller 
must  register  still  -with 
collector;  violation;  pun- 
ishment. 

§  1297.  Act  July  20,  1868,  distiller 
must  give  notice  of  en- 
gaging in  business;  fail- 
ure ;   penalty. 

§  1298.  Prohibition  against  certain 
places  Avhere  still  may  be 
set  up  under  Act  June  6, 
1872. 

§  1299.  Under  Act  July  20,  1868, 
breaking  locks  of  cistern 
or   buUding. 

§  1300.  Under  Act  July  20,  1868, 
distiller  must  keep  sign 
posted. 

§  1301.  No  distillation  can  be  made 
except  in  regular  dis- 
tillery. 

§  1302.  Unlawful  for  gauger  to  al- 
low others  to  perform  his 
duties. 

§  1303.  Under  Act  July  20,  1868, 
punishes  gauger  ■who 
makes  false  inspection. 

§  1304.  Act  July  20,  1868,  punish- 
ment for  removing  spirits 
upon  wliich  tax  had  not 
been  paid. 

§  1305.  Under  Act  Aug.  27,  1894, 
for  violation  of  act;  pen- 
alty. 

§  1306.  Under  Act  Mar.  3,  1877, 
grape  brandy  removed 
from  distillery  for  deposit 
in  special  warehouse  lim- 
ited to  ten  days;  failure; 
penalty. 

§  1307.  Act  Mar.  3,  1891,  manufac- 
turer of  sorghum  sugar 
may  use  spiritH  for;  pun- 
ishment   for   violation. 

I  1308.  Act  July  20,  1868,  fltoro- 
keeper  removing  cask  or 
package  from  bond  with- 
out permit  of  collector. 


§  1309.  Violation  of  Act  Mar.  3, 
1897,  forging,  altering  or 
counterfeiting  stamp; 
penalty. 

§  1310.  Act  June  6,  1872,  false  en- 
tries in  distiller's  books; 
penalty. 

§  1311.  Rectifiers  intending  to  de- 
fraud the  U.  S.  of  tax; 
penalty. 

§  1312.  Rectifier  required  to  keep 
book;  penalty  for  failure. 

§  1313.  Unlawful  for  purchaser  or 
rectifier  to  purchase  or 
receive  greater  quantity 
than  20  gallons. 

§  1314.  Rectifiers  who  fail  to  com- 
ply with  the  laws;  punish- 
ment. 

§  1315.  Under  Act  July  20,  1868, 
failure  to  deface  stamp, 
who  draws  off  spirits; 
punishment. 

§  1316.  Aflixing  spurious  stamp  to 
cask ;  penalty. 

S]:!17.  Tninsporting  intoxit-ating 
liquors  in  interstate  com- 
merce. 

§  1318.  Sale  of  intoxicating  liquors 
in  Indian  country;  penal- 
tics. 

§  1319.  Setting  still  for  manufacture 
of  liquor  in  Indian  coun- 
try;   penalty   $1000. 

§  1320.  Seizure  and  confiscation  of 
vehicles  used  in  introduc- 
ing liquors  into  Indian 
country. 

S  1321.  rrovisions  sections  2140  ami 
2141  R.  S.  shall  apply  to 
l)eer  as  tho  prima  facie 
evidence  of  unlawful  pos- 
session of  liquor  in  In- 
dian   country. 

§  1322.  Prohibition  liquors  at  or 
near  .'my  post  ;  ]iiniisli- 
mcnt. 


The  National  Prohibition  Act  955 

(PUBLIC— No.  66— 66TH  CONGRESS.)     (H.  R.  6810.) 

AN  ACT  to  prohibit  intoxicating  beverages,  and  to  regu- 
late the  manufacture,  production,  use,  and  sale  of 
high-proof  spirits  for  other  than  beverage  purposes, 
and  to  insure  an  ample  supply  of  alcohol  and  promote 
its  use  in  scientific  research  and  in  the  development  of 
fuel,  dye,  and  other  lawful  industries. 

Be  It  Enacted  by  the  Senate  and  House  of  Represen- 
tatives of  the  United  States  of  America  in  Congress 
assembled.  That  the  short  title  of  this  act  shall  be  the 
"National  Prohibition  Act." 

TITLE  I 

§  1230.  To  provide  for  the  enforcement  of  war  pro- 
hibition. The  term  ''War  Prohibition  Act"  used  in  this 
act  shall  mean  the  provisions  of  any  act  or  acts  prohibit- 
ing the  sale  and  manufacture  of  intoxicating  liquors  un- 
til the  conclusion  of  the  present  war  and  thereafter  until 
the  termination  of  demobilization,  the  date  of  which  shall 
be  determined  and  proclaimed  by  the  President  of  the 
United  States.  The  words  ' '  beer,  wine,  or  other  intoxicat- 
ing malt  or  vinous  liquors ' '  in  the  War  Prohibition  Act 
shall  be  hereafter  construed  to  mean  any  such  beverages 
which  contain  one-half  of  1  per  centum  or  more  of  alco- 
hol by  volume:  Provided,  That  the  foregoing  definition 
shall  not  extend  to  dealcoholized  wine  nor  to  any  bever- 
age or  liquid  produced  by  the  process  by  which  beer, 
ale,  porter  or  wine  is  produced,  if  it  contains  less  than 
one-half  of  1  per  centum  of  alcohol  by  volume,  and  is 
made  as  prescribed  in  section  37  of  Title  II  of  this  act, 
and  is  otherwise  denominated  than  as  beer,  ale,  or  por- 
ter, and  is  contained  and  sold  in,  or  from,  such  sealed  and 
labeled  bottles,  casks,  or  containers  as  the  commissioner 
may  by  regulation  prescribe. 


956  Ckiminax,  Law 

§  1231.  Commissioner  must  report  violations  of  War 
Prohibition  Act.  See.  2.  The  Commissioner  of  Internal 
Revenue,  his  assistants,  agents,  and  inspectors,  shall  in- 
vestigate and  report  violations  of  the  War  Prohibition 
Act  to  the  United  States  attorney  for  the  district  in  which 
committed,  who  shall  be  charged  with  the  duty  of  prose- 
cuting, subject  to  the  direction  of  the  Attorney  General, 
the  offenders  as  in  the  case  of  other  offenses  against  laws 
of  the  United  States;  and  such  Commissioner  of  Internal 
Revenue,  his  assistants,  agents,  and  inspectors  may  swear 
out  warrants  before  United  States  Commissioners  or 
other  officers  or  courts  authorized  to  issue  the  same  for 
the  apprehension  of  such  offenders,  and  may,  subject  to 
the  control  of  the  said  United  States  attorney,  conduct 
the  prosecution  at  the  committing  trial  for  the  purpose 
of  having  the  offenders  held  for  the  action  of  a  grand 
jury. 

§  1232.  Where  liquor  is  kept  is  declared  to  be  a  public 
nuisance.  Sec.  3.  Any  room,  house,  building,  boat,  ve- 
hicle, structure,  or  place  of  any  kind  where  intoxicating 
liquor  is  sold,  manufactured,  kept  for  sale,  or  bartered 
in  violation  of  the  War  Prohibition  Act,  and  all  intoxi- 
cating liquor  and  all  property  kept  and  used  in  maintain- 
ing such  a  place,  is  hereby  declared  to  be  a  public  and 
common  nuisance,  and  any  person  who  maintains  or  as- 
sists in  maintaining  such  connnon  nuisance  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  sliall  be 
iiiH'd  not  less  IJian  $100  nor  more  llian  $1,000,  or  l)e  im- 
prisoned for  not  less  than  tliirty  days  or  nioi"(>  tlian  one 
year,  or  both.  If  a  person  has  knowledge  that  his  prop- 
erty is  occupied  or  used  in  violation  of  the  provisions  of 
the  War  I'rohibition  Act  and  suffers  the  same  to  be  so 
used,  such  property  shall  be  subject  to  a  lien  for,  and 
may  be  sold  to  pay,  all  fines  and  costs  assessed  against 
the  occupant  of  such  hnilding  or  property  for  any  viola- 
tion of  tho  War  1^'oliibil ion  Act  occurring  after  the  pas- 


The  National  Prohibition  Act  957 

sage  hereof,  which  said  lien  shall  attach  from  the  time  of 
the  filing-  of  notice  of  the  commencement  of  the  suit  in 
the  office  where  the  records  of  the  transfer  of  real  estate 
are  kept;  and  any  such  lien  may  be  established  and  en- 
forced by  legal  action  instituted  for  that  purpose  in  any 
court  having  jurisdiction.  Any  violation  of  this  title 
upon  any  leased  premises  by  the  lessee  or  occupant  there- 
of shall,  at  the  option  of  the  lessor,  work  a  forfeiture 
of  the  lease. 

§  1233.  District  Attorney  and  Attorney  General  may 
prosecute  suit  in  equity.  Sec.  4.  The  United  States 
attorney  for  the  district  where  such  nuisance  as  is  de- 
fined in  this  act  exists,  or  any  officer  designated  by 
him  or  the  Attorney  General  of  the  United  States,  may 
prosecute  a  suit  in  equity  in  the  name  of  the  United 
States  to  abate  and  enjoin  the  same.  Actions  in  equity 
to  enjoin  and  abate  such  nuisances  may  be  brought  in 
any  court  having  jurisdiction  to  hear  and  determine 
equity  causes.  The  jurisdiction  of  the  courts  of  the 
United  States  under  this  section  shall  be  concurrent  with 
that  of  the  courts  of  the  several  states. 

If  it  be  made  to  appear  by  affidavit,  or  other  evidence 
under  oath,  to  the  satisfaction  of  the  court,  or  judge  in 
vacation  that  the  nuisance  complained  of  exists,  a  tem- 
porary writ  of  injunction  shall  forthwith  issue  restrain- 
ing the  defendant  or  defendants  from  conducting  or 
permitting  the  continuance  of  such  nuisance  until  the 
conclusion  of  the  trial.  Where  a  temporaiy  injunction 
is  prayed  for,  the  court  may  issue  an  order  restraining 
the  defendants  and  all  other  persons  from  removing 
or  in  any  way  interfering  with  the  liquor  or  fixtures, 
or  other  things  used  in  connection  with  the  violation 
constituting  the  nuisance.  No  bond  shall  be  required  as 
a  condition  for  making  any  order  or  issuing  any  writ  of 
injunction  under  this  act.  If  the  court  shall  find  the 
property  involved  was  being  unlawfully  used  as  afore- 


958  Criminal  Law 

said  at  or  about  the  time  alleged  in  the  petition,  the 
court  shall  order  that  no  liquors  shall  be  manufactured, 
sold,  bartered,  or  stored  in  such  room,  house,  building, 
boat,  vehicle,  structure,  or  places  of  any  kind,  for  a 
period  of  not  exceeding  one  year,  or  during  the  war 
and  the  period  of  demobilization.  Whenever  an  action 
to  enjoin  such  a  nuisance  shall  have  been  brought  pur- 
suant to  the  provisions  of  this  act,  if  the  owner,  lessee, 
tenant,  or  occupant  appears  and  pays  all  costs  of  the 
proceedings  and  files  a  bond,  with  sureties  to  be  ap- 
proved by  the  clerk  of  the  court  in  which  the  action  is 
brought,  in  the  liquidated  sum  of  not  less  than  $500  nor 
more  than  $1,000,  conditioned  that  he  will  immediately 
abate  said  nuisance  and  prevent  the  same  from  being 
established  or  kept  therein  a  period  of  one  year  there- 
after, or  during  the  war  and  period  of  demobilization, 
the  court,  or  in  vacation  the  judge,  may,  if  satisfied  of 
his  good  faith,  direct  by  appropriate  order  that  the 
property,  if  already  closed  or  held  under  the  order  of 
abatement,  be  delivered  to  said  owner,  and  said  order 
of  abatement  canceled,  so  far  as  the  same  may  relate 
to  said  property;  or  if  said  bond  be  given  and  costs 
therein  jDuid  before  judgment  on  an  order  of  abatement, 
the  action  shall  be  thereby  abated  as  to  said  room,  house, 
])uilding,  boat,  vehicle,  structure,  or  place  only.  The 
release  of  the  property  under  the  provisions  of  this  sec- 
tion shall  not  release  it  from  any  judgment,  lien,  penalty, 
f)r  liability  to  which  it  may  be  subject  by  law. 

[ii  llio  case  of  the  violation  of  any  injunction,  tem- 
poiary  or  peiTnanent,  granted  pursuant  to  the  provi- 
sions of  this  Title,  the  court,  or  in  vacation  a  judge 
tliereof,  may  summarily  try  and  punish  the  defendant. 
Tlie  proceedings  for  j)nnislinient  for  contempt  sliall  be 
commenced  l)y  filing  with  the  clerk  of  the  court  from 
which  such  injunction  issued  infomiation  under  oath 
setting  out  tlie  alleged  facts  constituting  the  violation, 
whoronpon   tlio  fonrt  or  jndge  shall    forthwith   cause  a 


The  National  Prohibition  Act  959 

warrant  to  issue  under  which  the  defendant  shall  be 
arrested.  The  trial  may  be  had  upon  affidavits,  or  either 
party  may  demand  the  production  and  oral  examina- 
tion of  the  witnesses.  Any  person  found  guilty  of  con- 
tempt under  the  provisions  of  this  section  shall  be  pun- 
ished by  a  fine  of  not  less  than  $500  nor  more  than  $1,000, 
or  by  imprisonment  of  not  less  than  thirty  days  nor 
more  than  twelve  months,  or  by  both  fine  and  imprison- 
ment. 

§  1234.  Commissioner  and  inspector  may  prosecute  all 
offenses.  Sec.  5.  The  Commissioner  of  Internal  Revenue, 
his  assistants,  agents  and  inspectors,  and  all  other  offi- 
cers of  the  United  States  whose  duty  it  is  to  enforce 
criminal  laws,  shall  have  all  the  power  for  the  enforce- 
ment of  the  War  Prohibition  Act  or  any  provisions  there- 
of which  is  conferred  by  law  for  the  enforcement  of 
existing  laws  relating  to  the  manufacture  or  sale  of 
intoxicating  liquors  under  the  laws  of  the  United  States. 

§  1235.  Any  provision  hereof  invalid  all  other  valid. 

Sec.  6.  If  any  section  or  provision  of  this  act  shall  be 
held  to  be  invalid,  it  is  hereby  provided  that  all  other 
provisions  of  this  act  which  are  not  expressly  held  to  be 
invalid  shall  continue  in  full  force  and  effect. 

§  1236.  Act  does  not  repeal  war  prohibition.  Sec.  7. 
None  of  the  provisions  of  this  act  shall  be  construed  to 
repeal  any  of  the  provisions  of  the  ''AVar  Prohibition 
Act,"  or  to  limit  or  annul  any  order  or  regulation  pro- 
hibiting the  manufacture,  sale,  or  disposition  of  intoxi- 
cating liquors  within  certain  prescribed  zones  or  dis- 
tricts, nor  shall  the  provisions  of  ths  act  be  construed 
to  prohibit  the  use  of  the  power  of  the  military  or  naval 
authorities  to  enforce  the  regulations  of  the  President 
or  Secretarj^  of  War  or  Navy  issued  in  pursuance  of 
law,  prohibiting  the  manufacture,  use,  possession,  sale. 


960  Ceiminal  Law 

or  otliGi'  disposition  of  intoxicating  liquors  during  the 
period  of  the  war  and  demobilization  thereafter. 

TITLE  II 
PROHIBITION  OF  INTOXICATING  BEVERAGES 

§1237.  Meaning  of  liquor  and  "intoxicating  liquor." 

Sec.  1.  AVhen  used  in  Title  II  and  Title  III  of  this  act 
(1)  The  Avord  "liquor"  or  the  phrase  "intoxicating 
liquor"  shall  be  construed  to  include  alcohol,  brandy, 
whisky,  rum,  gin,  beer,  ale,  porter,  and  wine,  and  in 
addition  thereto  any  spirituous,  vinous,  malt,  or  fer- 
mented liquor,  liquids,  and  compounds,  whether  medi- 
cated, proprietary,  patented,  or  not,  and  by  whatever 
name  called,  containing  one-half  of  1  per  centum  or 
more  of  alcohol  by  volume  which  are  fit  for  use  for 
beverage  purposes:  Provided,  That  the  foregoing 
definition  shall  not  extend  to  dealcoholized  w^ine  nor 
to  any  beverage  or  liquid  produced  by  the  process  by 
which  beer,  ale,  porter  or  wine  is  produced,  if  it  con- 
tains less  than  one-half  of  1  per  centum  of  alcohol  by 
volume,  and  is  made  as  prescribed  in  section  37  of  this 
title,  and  is  otherwise  denominated  than  as  beer,  ale, 
or  porter,  and  is  contained  and  sold  in,  or  from,  such 
sealed  and  labeled  bottles,  casks,  or  containers  as  tlie 
commissioner  may  by  regulation  prescribe. 

(2)  The  word  "person"  shall  mean  and  include  nat- 
ural persons,  associations,  copartnerships,  and  coi'pora- 
tions. 

(3)  The  word  "commissioner"  shall  mean  C'ommis- 
sioner  of  Internal  Revenue. 

(4)  The  term  "application"  shall  mean  a  fonnal  writ- 
ten request  supported  by  a  verified  statement  of  facts 
showing  that  the  commissioner  may  grant  the  request. 

(5)  The  term  "permii"  shall  mean  a  formal  written 
anthorization  by  the  commissioner  setting  forth  specifi- 
cally therein  the  tilings  that  are  authorized. 


The  National  Prohibition  Act  961 

(6)  The  term  ''bond"  shall  mean  an  obligation  author- 
ized or  required  by  under  this  act  or  any  regulation, 
executed  in  such  form  and  for  such  a  penal  sum  as  may 
be  required  by  a  court,  the  commissioner,  or  prescribed 
by  regulation. 

(7)  The  term  "regulation"  shall  mean  any  regula- 
tion prescribed  by  the  commissioner  with  the  approval 
of  the  Secretary  of  the  Treasury  for  carrying  out  the 
provisions  of  this  act,  and  the  commissioner  is  author- 
ized to  make  such  regulations. 

Any  act  authorized  to  be  done  by  the  commissioner 
may  be  performed  by  any  assistant  or  agent  designated 
by  him  for  that  pui-pose.  Records  required  to  be  filed 
with  the  commissioner  may  be  filed  with  an  assistant 
commissioner  or  other  person  designated  by  the  com- 
missioner to  receive  such  records. 

§  1238.  Commissioner  to  report  violation  and  United 
States  attorney  to  prosecute.  Sec.  2.  The  Commissioner 
of  Internal  Revenue,  his  assistants,  agents,  and  inspec- 
tors shall  investigate  and  report  violations  of  this  act 
to  the  United  States  attorney  for  the  district  in  which 
committed,  who  is  hereby  charged  with  the  duty  of  prose- 
cuting the  offenders,  subject  to  the  direction  of  the  Attor- 
ney General,  as  in  the  case  of  other  offenses  against  the 
laws  of  the  United  States;  and  such  Commissioner  of 
Internal  Revenue,  his  assistants,  agents,  and  inspectors 
may  swear  out  warrants  before  the  United  States  com- 
missioners or  other  officers  or  courts  authorized  to  issue 
the  same  for  the  apprehension  of  such  offenders,  and 
may,  subject  to  the  control  of  the  said  United  States 
attorney,  conduct  the  prosecution  at  the  committing  trial 
for  the  purpose  of  having  the  offenders  held  for  the  ac- 
tion of  a  grand  jury.  Section  1014  of  the  Revised  Stat- 
utes of  the  United  Sates  is  hereby  made  applicable  in 
the  enforcement  of  this  act.  Officers  mentioned  in  said 
section  1014  are   authorized  to  issue   search  warrants 

C.  L.— 61 


962  Criminal  Law 

under  the  limitations  provided  in  Title  XI  of  the  act 
approved  June  15,  1917.^ 

§  1239.  After  act  becomes  effective  liquor  cajinot  be 
sold,  etc.  Sec.  3.  No  person  shall  on  or  after  the  date 
when  the  eighteenth  amendment  to  the  Constitution  of 
the  United  States  goes  into  effect,  manufacture,  sell, 
barter,  transport,  import,  export,  deliver,  furnish,  or 
possess  any  intoxicating  liquor  except  as  authorized  in 
this  act,  and  all  the  provisions  of  this  act  shall  be  lib- 
erally construed  to  the  end  that  the  use  of  intoxicating 
liquor  as  a  beverage  may  be  prevented. 

Liquor  for  nonbeverage  purposes  and  wine  for  sacra- 
mental puiposes  may  be  manufactured,  purchased,  sold, 
bartered,  transported,  imported,  exported,  delivered,  fur- 
nished and  possessed,  but  only  as  herein  provided,  and 
the  commissioner  may,  upon  application,  issue  permits 
therefore:  Provided,  That  nothing  in  this  act  shall  pro- 
liilnt  the  purchase  and  sale  of  warehouse  receipts  cover- 
ing distilled  spirits  on  deposit  in  govennnent  bonded 
warehouses,  and  no  special  tax  liability  shall  attach  to 
the  business  of  purchasing  and  selling  such  warehouse 
receipts. 

§1240.  Certain  articles  exempted.  Sec  4.  The  arti- 
cles eiiuinoratcd  in  tliis  section  slinll  not,  after  having 
been  niaiuiractnrc.d  and  prepared  for  llic  market,  be  sub- 
ject to  the  provisions  of  this  act  if  Ihey  correspond  witli 
the  following  descriptions  and  limit alions,  namely: 

(a)  Denatured  alcohol  oi-  dcnatnrcd  iiini  produced  and 
used  as  pi-oxidcd  by  laws  and  rcgnlations  now  or  here- 
after in  force. 

(b)  Medicinal  |)i-ei)aiat  ions  inannfact  ni'ed  in  accord- 
ance with  f(t|-innlas  picsciihed  hy  the  Tnited  States 
Pharniaeopea,  National   Korninlar)-  oi'  the   Aniei'ican  Tn- 

1 — Fortieth     Htatutos     :il     L.'irjjc, 
jmRp   217,  ct   «oq. 


The  National  Prohibition  Act  963 

stitute  of  Homeopathy  that  are  unfit  for  use  for  bever- 
age purposes. 

(c)  Patented,  patent,  and  proprietary  medicines  that 
are  unfit  for  beverage  purposes. 

(d)  Toilet,  medicinal,  and  antiseptic  preparations  and 
solutions  that  are  unfit  for  use  for  beverage  pui'poses. 

(e)  Flavoring  extracts  and  sirups  that  are  unfit  for 
use  as  a  beverage,  or  for  intoxicating  beverage  purposes. 

(f )  Vinegar  and  preserved  sweet  cider. 

A  person  who  manufactures  any  of  the  articles  men- 
tioned in  this  section  may  purchase  and  possess  liquor 
for  that  purpose,  but  he  shall  secure  permits  to  manufac- 
ture such  articles  and  to  purchase  such  liquor,  give  the 
bonds,  keep  the  records,  and  make  the  reports  specified  in 
this  act  and  as  directed  by  the  commissioner.  No  such 
manufacturer  shall  sell,  use,  or  dispose  of  any  liquor 
otherwise  than  as  an  ingredient  of  the  articles  authorized 
to  be  manufactured  therefrom.  No  more  alcohol  shall  be 
used  in  the  manufacture  pf  any  extract,  sirup,  or  the  arti- 
cles named  in  paragraphs  b,  c  and  d  of  this  section  which 
may  be  used  for  beverage  purposes  than  the  quantity 
necessary  for  extraction  or  solution  of  the  elements  con- 
tained therein  and  for  the  preservation  of  the  article. 

Any  person  who  shall  knowingly  sell  any  of  the  articles 
mentioned  in  paragraphs  a,  b,  c  and  d  of  this  section  for 
beverage  purposes,  or  any  extract  or  sirup  for  intoxi- 
cating beverage  purposes,  or  who  shall  sell  any  of  the 
same  under  circumstances  from  which  the  seller  might 
reasonably  deduce  the  intention  of  the  purchaser  to  use 
them  for  such  pui^ioses,  or  shall  sell  any  beverage  con- 
taining one-half  of  1  per  centum  or  more  of  alcohol  by 
volume  in  which  any  extract,  sirup,  or  other  article  is 
used  as  an  ingredient,  shall  be  subject  to  the  penalties 
provided  in  section  29  of  this  title  [1265].  If  the  com- 
missioner shall  find,  after  notice  and  hearing  as  provided 
for  in  section  5  of  this  title  [1241],  that  any  person  has 
sold  flavoring  extract,  sirup,  or  beverage  in  violation 


964  Criminal  Law 

of  this  paragrapli,  lie  shall  notify  such  person,  and  any 
known  principal  for  whom  the  sale  was  made,  to  desist 
from  selling  such  article;  and  it  shall  thereupon  be  un- 
lawful for  a  period  of  one  year  thereafter  for  any  per- 
son so  notified  to  sell  any  such  extract,  siiTip,  or  beverage 
without  making  an  application  for,  giving  a  bond,  and 
obtaining  a  pemiit  so  to  do,  which  pennit  may  be  issued 
upon  such  conditions  as  the  commissioner  may  deem 
necessarj^  to  prevent  such  illegal  sales,  and  in  addition 
the  commissioner  shall  require  a  record  and  report  of 
sales. 

§  1241.  Commissioner  may  make  analysis  if  necessary. 
Sec.  5.  AVheiiever  the  coniniissioiier  has  reason  to  believe 
that  any  article  mentioned  in  section  4  [1240]  does  not 
correspond  with  the  descriptions  and  limitations  therein 
provided  he  shall  cause  an  analysis  of  said  article  to  be 
made,  and  if,  upon  such  analysis,  the  commissioner  shall 
lind  that  said  article  does  not  -so  correspond,  he  shall 
give  not  less  than  fifteen  days'  notice  in  writing  to  the 
person  who  is  manufacturer  thereof  to  show  cause  why 
said  article  should  not  bo  dealt  with  as  an  intoxicating 
liquor,  such  notice  to  be  sei-vcd  personally  or  by  regis- 
tered mail,  as  the  commissioner  may  determine,  and  shall 
specify  ilic  lime  when,  llic  jjlncc  whci'o,  and  llif  nnnie 
of  the  agent  or  oflicial  hcforc  wlioni  sncli  ])('rson  is  rc- 
(|niied  to  appear. 

if  the  manufacturer  of  s.-iid  :nticl('  fails  to  siiow  to  the 
satisfaclioii  of  llic  coinmissiciiicr  llial  Ihc  arlich'  corre- 
sponds lo  IIk'  (h'sci-i|)ti()ns  and  limitations  ])i-ovi(ied  in 
section  4  of  this  title  [1240],  his  permit  to  manufacture 
and  sell  such  article  may  be  revoked.  The  manufacturer 
ni;iy  hy  ;iii|iroi»ri;itc  ])r<)C(T(Iiiig  in  a  court  of  equity  have 
the  acti(»ii  of  tlir  coininissionci-  reviewed,  and  the  coni"t 
may  aflii-iu,  modify,  or  reverse  the  finding  of  the  conunis- 
sioner  as  the  facts  and  law  of  the  case  ni;i\   \vai-iant,  and 


The  National  Prohibition  Act  965 

during  the  pendency  of  such  proceedings  may  restrain 
the  manufacture,  sale,  or  other  disposition  of  such  article. 

§  1242.  Permit  must  be  obtained.  Sec.  6.  No  one  shall 
manufacture,  sell,  purchase,  transport,  or  prescribe  any 
liquor  without  first  obtaining  a  permit  from  the  commis- 
sioner so  to  do,  except  that  a  person  may  without  a  per- 
mit, purchase  and  use  liquor  for  medicinal  purposes 
when  prescribed  by  a  physician  as  herein  provided,  and 
except  that  any  person  who  in  the  opinion  of  the  commis- 
sioner is  conducting  a  bona  fide  hospital  or  sanatorium 
engaged  in  the  treatment  of  persons  suffering  from  alco- 
holism, may  under  such  rules,  regulations,  and  conditions 
as  the  commissioner  shall  prescribe,  purchase  and  use,  in 
accordance  with  the  methods  in  use  in  such  institution, 
liquor,  to  be  administered  to  the  patients  of  such  institu- 
tion under  the  direction  of  a  duly  qualified  physician  em- 
ployed by  such  institution. 

All  permits  to  manufacture,  prescribe,  sell,  or  transport 
liquor,  may  be  issued  for  one  year,  and  shall  expire  on 
the  31st  day  of  December  next  succeeding  the  issuance 
thereof.  Provided,  That  the  commissioner  may  without 
formal  application  or  new  bond  extend  any  permit 
granted  under  this  act  or  laws  now  in  force  after  August 
31  in  any  year  to  December  31  of  the  succeeding  year: 
Provided  further,  That  permits  to  purchase  liquor  for  the 
purpose  of  manufacturing  or  selling  as  provided  in  this 
act  shall  not  be  in  force  to  exceed  ninety  days  from  the 
day  of  issuance.  A  pemiit  to  purchase  liquor  for  any 
other  purpose  shall  not  be  in  force  to  exceed  thirty  days. 
Permits  to  purchase  liquor  shall  specify  the  quantity  and 
kind  to  be  purchased  and  the  pui-pose  for  which  it  is  to  be 
used.  No  permit  shall  be  issued  to  any  person  who  within 
one  year  prior  to  the  application  therefor  or  issuance 
thereof  shall  have  violated  the  terms  of  any  pemiit  issued 
under  this  title  or  any  law  of  the  United  States  or  of  any 
state  regulating  traffic  in  liquor.    No  permit  shall  be  is- 


966  Criminal  Law 

sued  to  anyone  to  sell  liquor  at  retail,  unless  the  sale  is  to 
be  made  tlirougii  a  pharmacist  designated  in  the  permit 
and  duly  licensed  under  the  laws  of  his  state  to  compound 
and  dispense  medicine  prescribed  by  a  duly  licensed  phy- 
sician. No  one  shall  be  given  a  permit  to  prescribe  liquor 
unless  he  is  a  physician  duly  licensed  to  practice  medi- 
cine and  actively  engaged  in  the  practice  of  such  profes- 
sion. Every  pemiit  shall  be  in  writing,  dated  when  is- 
sued and  signed  by  the  commissioner  or  his  authorized 
agent.  It  shall  give  the  name  and  address  of  the  person 
to  whom  it  is  issued  and  shall  designate  and  limit  the 
acts  that  are  peraiitted  and  the  time  when  and  place 
where  such  acts  may  be  performed.  No  permit  shall  be 
issued  until  a  verified,  written  application  shall  have  been 
made  therefor,  setting  forth  the  qualification  of  the  appli- 
cant and  the  purpose  for  which  the  liquor  is  to  be  used. 

The  conmiissioner  may  prescribe  the  form  of  all  per- 
mits and  applications  and  the  facts  to  be  set  forth  therein. 
Before  any  permit  is  granted  the  commissioner  may  re- 
quire a  bond  in  such  form  and  amount  as  he  may  pre- 
scribe to  insure  compliance  with  the  tenns  of  the  permit 
and  the  provisions  of  this  title.  In  the  event  of  the  re- 
fusal by  the  commissioner  of  any  application  for  a  per- 
mit, the  applicant  may  liave  a  review  of  his  decision 
before  a  court  of  e(iuily  in  llic  niauiier  provided  in  section 
5  hereof  [1241]. 

Nothing  in  this  title  siiail  be  iii-hl  to  apply  to  the  manu- 
facture, sale,  transportation,  inii)ortation,  possession,  or 
dist  ribnl  ion  of  wine  I'or  sacranienlal  jMiiposes,  oi'  like 
religious  riles,  except  section  G  [1242 \  (save  as  the  same 
refpiires  a  permit  to  i)urchase)  and  section  10  hereof 
[1240 J,  and  the  provisions  of  this  act  prescribing  pen- 
alties for  the  violation  of  either  of  said  sections.  No 
person  to  wliom  a  permit  may  be  issued  to  manufacture, 
transport,  inqjoi't,  or  sell  wines  for  sacramental  ])ur])0scs 
or  like  religious  rites  sliall  >cll,  l»;ii(ei-,  exchange,  or  fur- 
nisli  anv  sncli  to  any  pei'son  not  a  r;il»l>i,  minister  of  th<; 


The  National  Prohibition  Act  967 

gospel,  priest,  or  an  officer  duly  authorized  for  the  pur- 
pose by  any  church  or  congregation,  nor  to  any  such 
except  upon  an  application  duly  subscribed  by  him,  which 
application,  authenticated  as  regulations  may  prescribe, 
shall  be  filed  and  preserved  by  the  seller.  The  head  of 
any  conference  or  diocese  or  other  ecclesiastical  jurisdic- 
tion may  designate  any  rabbi,  minister,  or  priest  to  super- 
vise the  manufacture  of  wine  to  be  used  for  the  purposes 
and  rites  in  this  section  mentioned,  and  the  person  so 
designated  may,  in  the  discretion  of  the  commissioner 
be  granted  a  permit  to  supervise  such  manufacture. 

§  1243.  Physician  holding'  permit,  only  one  authorized 
to  give  prescription.  Sec.  7.  No  one  but  a  physician 
holding  a  permit  to  prescribe  liquor  shall  issue  any  pre- 
scription for  liquor.  And  no  physician  shall  prescribe 
liquor  unless  after  careful  physical  examination  of  the 
person  for  whose  use  such  prescription  is  sought,  or  if 
such  examination  is  found  impracticable,  then  upon  the 
best  information  obtainable,  he  in  good  faith  believes 
that  the  use  of  such  liquor  as  a  medicine  by  such  person 
is  necessary  and  will  afford  relief  to  him  from  some 
known  ailment.  No  more  than  a  pint  of  spirituous  liquor 
to  be  taken  internally  shall  be  prescribed  for  use  by  the 
same  person  within  any  period  of  ten  days  and  no  pre- 
scription shall  be  filled  more  than  once.  Any  phannacist 
filling  a  prescription  shall  at  the  time  indorse  upon  it 
over  his  own  signature  the  word  "canceled,"  together 
with  the  date  when  the  liquor  was  delivered,  and  then 
make  the  same  a  part  of  the  record  that  he  is  required 
to  keep  as  herein  provided. 

Every  physician  who  issues  a  prescription  for  liquor 
shall  keep  a  record,  alphabetically  arranged  in  a  book 
prescribed  by  the  commissioner,  which  shall  show  the 
date  of  issue,  amount  prescribed,  to  whom  issued,  the 
purpose  or  ailment  for  which  it  is  to  be  used  and  direc- 


968  Criminal  Law 

tioiis  for  use,  stating-  the  amount  and  frequency  of  the 
dose. 

§  1244.  Commissioner  must  issue  blank  for  prescrip- 
tion. Sec.  8.  The  conmiissioner  shall  cause  to  be  printed 
blanks  for  the  prescriptions  herein  required,  and  he  shall 
furnish  the  same,  free  of  cost,  to  physicians  holding  per- 
mits to  prescribe.  The  prescription  blanks  shall  be 
printed  in  book  form  and  shall  be  numbered  consecutively 
from  one  to  one  hundred,  and  each  book  shall  be  given  a 
number,  and  the  stubs  in  each  book  shall  carry  the  same 
numbers  as  and  be  copies  of  the  prescriptions.  The  books 
containing  such  stubs  shall  be  returned  to  the  commis- 
sioner when  the  prescription  blanks  have  been  used,  or 
sooner,  if  directed  by  the  commissioner.  All  unused, 
mutilated,  or  defaced  blanks  shall  be  returned  with  the 
book.  No  physician  shall  prescribe  and  no  pharmacist 
shall  fill  any  prescription  for  liquor  except  on  blanks  so 
provided,  except  in  cases  of  emergency  in  which  event  a 
record  and  report  shall  be  made  and  kept  as  in  other 
cases. 

§  1245.  Permit  may  be  revoked.  Sec.  i).  if  at  any  time 
there  shall  be  filed  with  tlie  conmiissioner  a  complaint 
under  oath  setting  forth  facts  showing,  or  if  the  commis- 
sioner has  reason  to  believe,  lliat  any  person  who  lias  a 
pennit  is  not  in  good  faith  conl'onning  to  the  jirovisions 
of  tliis  act,  or  lias  N-iolatcd  the  l;i\vs  of  any  state  I'rlatiiig 
to  intoxicating  liipioi',  the  cominissioner  or  ids  agent  shall 
innnediately  issue  an  order  citing  such  ])erson  to  ajipear 
before  liini  on  a  day  named  not  more  tlian  thirty  and  not 
less  than  til'teen  days  IVnni  the  (i;ite  dj"  ser\'ice  u|)on  such 
permittee  of  a  ('o])y  of  the  citation,  which  citation  siiall 
be  accompanied  l)y  n  co])y  of  such  conij)hiint,  oi*  in  the 
event  th;i1  the  proccrdi  nus  he  initiated  by  the  eonunis- 
sionci*  with  a  statement  of  the  facts  constituting  the  \io- 
lation  cliai'ged,  ;it  which  time  ;i  he.iring  shall  be  had  un- 


The  National  Prohibition  Act  969 

less  continued  for  cause.  Such  liearing's  shall  be  held 
within  the  judicial  district  and  within  fifty  miles  of  the 
place  where  the  offense  is  alleged  to  have  occurred,  unless 
parties  agree  on  another  place.  If  it  be  found  that  such 
person  has  been  guilty  of  wilfully  violating  any  such 
laws,  as  charged,  or  has  not  in  good  faith  conformed  to 
the  provisions  of  this  act,  such  permit  shall  be  revoked, 
and  no  permit  shall  be  granted  to  such  person  within 
one  year  thereafter.  Should  the  permit  be  revoked  by 
the  commissioner,  the  permittee  may  have  a  review  of 
Ms  decision  before  a  court  of  equity  in  the  manner  pro- 
vided in  section  5  hereof  [1241].  During  the  pendency  of 
such  action  such  permit  shall  be  temporarily  revoked. 

§  1246.  Permanent  record  must  be  made  of  sales,  etc. 
Sec.  10.  No  person  shall  manufacture,  purchase  for  sale, 
sell,  or  transport  any  liquor  without  making  at  the  time 
a  permanent  record  thereof  showing  in  detail  the  amount 
and  kind  of  liquor  manufactured,  purchased,  sold,  or 
transported,  together  with  the  names  and  addresses  of 
the  persons  to  whom  sold,  in  case  of  sale,  and  the  con- 
signor and  consignee  in  case  of  transportation,  and  the 
time  and  place  of  such  manufacture,  sale,  or  transporta- 
tion. The  commissioner  may  prescribe  the  form  of  such 
record,  which  shall  at  all  times  be  open  to  inspection  as 
in  this  act  provided. 

§  1247.   Wholesale  druggist  cannot  seU  at  retail.   Sec. 

11.  All  manufacturers  and  wholesale  or  retail  druggists 
shall  as  a  part  of  the  records  required  of  them  keep  a 
copy  of  all  permits  to  purchase  on  which  a  sale  is  made, 
and  no  manufacturer  or  wholesale  druggist  shall  sell  or 
otherwise  dispose  of  any  liquor  except  at  wholesale  and 
only  to  persons  having  permits  to  purchase  in  such  quan- 
tities. 

§  1248.  Label  must  be  attached  to  every  container.  Sec. 

12.  All  persons  manufacturing  liquor  for  sale  under  the 


970  Ceiminal  Law 

provisions  of  tliis  title  shall  securely  and  permanently 
attach  to  every  container  thereof,  as  the  same  is  manu- 
factured, a  label  stating-  the  name  of  manufacturer,  kind 
and  quantity  of  liquor  contained  therein,  and  the  date  of 
its  manufacture,  together  with  the  number  of  the  permit 
authorizing  the  manufacture  thereof;  and  all  persons  pos- 
sessing such  liquor  in  wholesale  quantities  shall  securely 
keep  and  maintain  such  label  thereon;  and  all  persons 
selling  at  wholesale  shall  attach  to  every  package  of 
liquor,  when  sold,  a  label  setting  forth  the  kind  and  quan- 
tity of  liquor  contained  therein,  by  whom  manufactured, 
the  date  of  sale,  and  the  person  to  whom  sold;  which  label 
shall  likewise  be  kept  and  maintained  thereon  until  the 
liquor  is  used  for  the  purpose  for  which  such  sale  was 
authorized. 

§  1249.  Every  carrier  must  make  record  of  shipment 
when  received.  Sec.  13.  It  shall  be  the  duty  of  every 
carrier  to  make  a  record  at  the  place  of  shipment  of  the 
receipt  of  any  liquor  transported,  and  he  shall  deliver 
liquor  only  to  persons  who  present  to  the  carrier  a  veri- 
fied copy  of  a  peiTuit  to  purchase  which  shall  be  made  a 
part  of  tlie  carrier's  pennanent  record  at  the  office  from 
which  delivery  is  made. 

The  agent  of  the  connnon  carrier  is  hereby  anthoi-ized 
to  administer  the  oath  of  the  consignee  in  verification  of 
the  copy  of  the  permit  yiresented,  who,  if  not  personally 
known  1<»  tlie  agent,  sliall  l)e  identified  before  the  deliveiy 
of  the  liiiuor  to  him.  ^IMic  name  and  the  address  of  the 
person  identifying  tlic  consignee  shall  be  inchided  in  the 
record. 

ij  1250.  Shipper  must  notify  carrier  of  nature  of  ship- 
ment. Sec.  It.  11  sliall  be  nnlawfnl  I'oi'  a  person  to  nsc; 
or  indnee  any  earriei",  oi'  any  agent,  or  employe  lliereol,  to 
earry  or  sliij)  any  ]iackage  or  receptacle  containing  liqnor 
witiiout   notifying   the   carrier   of   the   true   nature   and 


The  National  Prohibition  Act  971 

character  of  the  shipment.  No  carrier  shall  transport 
nor  shall  any  person  receive  liquor  from  a  carrier  unless 
there  appears  on  the  outside  of  the  package  containing 
such  liquor  the  following  information :  Name  and  address 
of  the  consignor  or  seller,  name  and  address  of  the  con- 
signee, kind  and  (quantity  of  liquor  contained  therein, 
and  number  of  the  permit  to  purchase  or  ship  the  same, 
together  with  the  name  and  address  of  the  person  using 
the  permit. 

§  1251.  Unlawful  for  carrier  to  accept  shipment  upon 
false  statement.  Sec.  15.  It  shall  be  unlawful  for  any 
consignee  to  accept  or  receive  any  package  containing 
any  liquor  upon  which  appears  a  statement  known  to  him 
to  be  false,  or  for  any  carrier  or  other  person  to  consign, 
ship,  transport,  or  deliver  any  such  package,  knowing 
such  statement  to  be  false. 

§  1252.  Order  to  ship  must  be  to  an  actual  bona  fide 
consignee.  Sec.  16.  It  shall  be  unlawful  to  give  any 
carrier  or  any  officer,  agent,  or  person  acting  or  assuming 
to  act  for  such  carrier  an  order  requiring  the  deliveiy  to 
any  person  of  any  liquor  or  package  containing  liquor 
consigned  to,  or  purporting  or  claimed  to  be  consigned  to 
a  person,  when  the  purpose  of  the  order  is  to  enable  any 
person  not  an  actual  bona  fide  consignee  to  obtain  such 
liquor. 

§  1253.  Unlawful  to  advertise  sale,  etc.  Sec.  17.  It 
shall  be  unlawful  to  advertise  anywhere,  or  by  any  means 
or  method,  liquor,  or  the  manufacture,  sale,  keeping  for 
sale  or  furnishing  of  the  same,  or  where,  how,  from 
whom,  or  at  what  price  the  same  may  be  obtained.  No 
one  shall  permit  any  sign  or  billboard  containing  such 
advertisement  to  remain  upon  one 's  premises.  But  noth- 
ing herein  shall  prohibit  manufacturers  and  wholesale 
druggists  holding  permits  to  sell  liquor  from  furnishing 


972  Ceiminal  Law 

price  lists,  with  description  of  liquor  for  sale,  to  persons 
permitted  to  purchase  liquor,  or  from  advertising  alcohol 
in  business  publications  or  trade  journals  circulating 
generally  among-  manufacturers  of  lawful  alcoholic  per- 
fumes, toilet  preparations,  flavoring  extracts,  medicinal 
preparations,  and  like  articles :  Provided,  However,  That 
nothing  in  this  act  or  in  the  act  making  appropriations 
for  the  Postoffice  Department,  approved  March  3,  1917 
(Thirty-ninth  Statutes  at  Large,  Part  1,  page  1058,  et 
seq.),  shall  apply  to  newspapers  published  in  foreign 
countries  when  mailed  to  this  country. 

§  1254.  Unlawful  to  advertise  for  sale  utensil  or  con- 
trivance. Sec.  18.  It  shall  be  unlawful  to  advertise, 
manufacture,  sell  or  possess  for  sale  any  utensil,  contriv- 
ance, machine,  preparation,  compound,  tablet,  substance, 
formula,  direction,  or  recipe  advertised,  designed,  or 
intended  for  the  use  in  the  unlawful  manufacture  of  in- 
toxicating liquor. 

§  1255.  No  person  shall  knowingly  receive  order  from 
any  person  for  sale.  Sec.  19.  No  person  shall  solicit 
or  receive,  nor  knowingly  permit  his  employee  to  solicit 
or  receive,  from  any  person  any  order  for  li(\uor  or  give 
any  infoiTnation  of  liow  liquor  may  be  obtained  in  viola- 
tion of  this  act. 

§  1256.  Any  person  injured  by  intoxicated  person  has 
right  of  damages.  Sec.  20.  Any  person  who  sliall  ])e 
injured  in  ])erson,  property,  moans  of  support,  or  other- 
wise ])y  any  intoxicated  person,  or  by  reason  of  the  intoxi- 
cation of  any  })('rson,  whetlier  resulting  in  his  deatli  or 
not,  sliall  liave  a  riglit  of  action  against  any  person  who 
sliall,  by  unlawfully  selling  to  or  unlawfully  assisting  in 
procuring  li(|uor  for  sudi  intoxicated  person,  have  caused 
or  contributed  to  such  intoxication,  and  in  any  such  ac- 
tion such  pcrsfui  shall   have  the  right   lo  recover  actual 


The  National  Prohibition  Act  973 

and  exemplary  damages.  In  case  of  the  death  of  either 
party,  the  action  or  the  right  of  action  given  by  this  sec- 
tion shall  survive  to  or  against  his  or  her  executor  or  ad- 
ministrator, and  the  amount  so  recovered  by  either  wife  or 
child  shall  be  his  or  her  sole  and  separate  property.  Such 
action  may  be  brought  in  any  court  of  competent  juris- 
diction. In  any  case  where  parents  shall  be  entitled  to 
such  damages,  either  the  father  or  mother  may  sue  alone 
therefor,  but  recovery  by  one  of  such  parties  shall  be  a 
bar  to  suit  brought  by  the  other. 

§  1257.  Place  where  liquor  is  kept  is  declared  to  be 
common  nuisance.  Sec.  21.  Any  room,  house,  building, 
boat,  vehicle,  stnicture,  or  place  where  intoxicating 
liquor  is  manufactured,  sold,  kept,  or  bartered  in  viola- 
tion of  this  title,  and  all  intoxicating  liquor  and  property 
kept  and  used  in  maintaining  the  same,  is  hereby  de- 
clared to  be  a  common  nuisance,  and  any  person  who 
maintains  such  a  common  nuisance  shall  be  guilty  of  a 
misdemeanor  and  upon  conviction  thereof  shall  be  fined 
not  more  than  $1,000  or  be  imprisoned  for  not  more  than 
one  year,  or  both.  If  a  person  has  knowledge  or  reason 
to  believe  that  his  room,  house,  building,  boat,  vehicle, 
structure,  or  place  is  occupied  or  used  for  the  manufac- 
ture or  sale  of  liquor  contrarj^  to  the  provision  of  this 
title,  and  suffers  the  same  to  be  so  occupied  or  used,  such 
room,  house,  building,  boat,  vehicle,  structure,  or  place 
shall  be  subject  to  a  lien  for  and  may  be  sold  to  pay  all 
fines  and  costs  assessed  against  the  person  guilty  of 
such  nuisance  for  such  violation,  and  any  such  lien  may 
be  enforced  by  action  in  any  court  having  jurisdiction. 

§  1258.  Action  to  enjoin  may  be  brought  in  the  name 
of  the  United  States.  Sec.  22.  An  action  to  enjoin  any 
nuisance  defined  in  this  title  may  be  brought  in  the  name 
of  the  United  States  by  the  Attorney  General  of  the 
United  States  or  by  any  United  States  attorney  or  any 


974  Ceiminal  Law 

prosecuting  attorney  of  any  state  or  any  subdivision 
thereof  or  by  the  commissioner  or  his  deputies  or  assist- 
ants. Such  action  shall  be  brought  and  tried  as  an  action 
in  equity  and  may  be  brought  in  any  court  having  juris- 
diction to  hear  and  determine  equity  cases.  If  it  is  made 
to  appear  by  affidavits  or  othenvise,  to  the  satisfaction 
of  the  court,  or  judge  in  vacation,  that  such  nuisance  ex- 
ists, a  temporary  writ  of  injunction  shall  forthwith  issue 
restraining  the  defendant  from  conducting  or  permitting 
the  continuance  of  such  nuisance  until  the  conclusion  of 
the  trial.  If  a  temporary  injunction  is  prayed  for,  the 
court  may  issue  an  order  restraining  the  defendant  and 
all  other  persons  from  removing  or  in  any  way  interfer- 
ing with  the  liquor  or  fixtures,  or  other  things  used  in 
connection  with  the  violation  of  this  act  constituting 
such  nuisance.  No  bond  shall  be  required  in  institut- 
ing such  proceedings.  It  shall  not  be  necessary  for  the 
court  to  find  the  property  involved  was  being  unlaw- 
fully used  as  aforesaid  at  the  time  of  the  hearing,  but 
on  finding  that  the  material  allegations  of  the  petition 
are  true,  the  court  shall  order  that  no  liquors  shall  be 
manufactured,  sold,  bartered,  or  stored  in  such  room, 
house,  Ijuildiiig,  l)()at,  vrliick\  structure,  or  i)lace,  or  any 
l)art  thereof.  And  upon  judgment  of  the  court  order- 
ing such  nuisance  to  be  abated,  the  court  may  order  that 
the  room,  house,  ])uilding,  structure,  boat,  vehicle,  or 
]jhice  shall  iiol  be  occupied  oi-  used  for  one  yeai"  there- 
after; but  the  court  may,  in  its  discivtion,  i)ermit  it  to 
be  occu])i('d  or  used  if  the  owner,  lessee,  tenant,  or  occu- 
pant thereof  shall  .ui\e  lioiid  with  sufficient  surety,  to  be 
api)i"o\'e(i  by  the  coui't  inaki'ig  llie  order,  in  Ihe  penal 
and  li(piidale(l  sum  of  not  less  than  $500  nor  more  than 
$1,000,  ])ayal)le  to  the  I'nited  States,  and  conditioned 
that  intoxicating  li(|uor  will  intj  thereaftei"  be  manufac- 
tured, ,-o|(|,  linrtered,  K'ept,  or  otherwise  (lis))osed  ol' 
therein  or  tlieicon.  and   Ihat    he   will    |i;iy  all   lines,  costs. 


The  National  Prohibition  Act  975 

and  damages  that  may  be  assessed  for  any  violation  of 
this  title  upon  said  property. 

§  1259.  Any  intent  to  sell  liquor  may  be  enjoined.  Sec. 
23.  That  any  person  who  shall,  with  intent  to  effect  a 
sale  of  liquor,  by  himself,  his  employee,  servant,  or  agent, 
for  himself  or  any  person,  company,  or  coi-poration,  keep 
or  caiTy  around  on  his  person,  or  in  a  vehicle,  or  other 
conveyance  whatever,  or  leave  in  a  place  for  another  to 
secure,  any  liquor,  or  who  shall  travel  to  solicit,  or  solicit, 
or  take,  or  accept  orders  for  the  sale,  shipment,  or  deliv- 
ery of  liquor  in  violation  of  this  title  and  is  guilty  of  a 
nuisance  and  may  be  restrained  by  injunction,  tempo- 
rary and  permanent,  from  doing  or  continuing  to  do  any 
of  said  acts  or  things.  In  such  proceedings  it  shall  not 
be  necessary  to  show  any  intention  on  the  part  of  the 
accused  to  continue  such  violations  if  the  action  is 
brought  within  sixty  days  following  any  such  violation 
of  the  law.  For  removing  and  selling  property  in  en- 
forcing this  act  the  officers  shall  be  entitled  to  charge 
and  receive  the  same  fee  as  the  sheriff  of  the  county 
would  receive  for  levying  upon  and  selling  property 
under  execution,  and  for  closing  the  premises  and  keep- 
ing them  closed  a  reasonable  sum  shall  be  allowed  by  the 
court.  Any  violation  of  this  title  upon  any  leased  prem- 
ises by  the  lessee  or  occupant  thereof  shall,  at  the  option 
of  the  lessor,  work  a  forfeiture  of  the  lease. 

§  1260.  A  violation  of  an  injunction  may  be  summarily 
punished  as  contempt.  Sec.  24.  In  the  case  of  the  viola- 
tion of  any  injunction,  temporaiy  or  permanent,  granted 
pursuant  to  the  provisions  of  this  title,  the  court,  or  in 
vacation,  a  judge  thereof,  may  summarily  try  and  pun- 
ish the  defendant.  The  proceedings  for  punishment  for 
contempt  shall  be  commenced  by  filing  with  the  clerk 
of  the  court  from  which  such  injunction  issued  infor- 
mation under  oath  setting  out  the  alleged  facts  consti- 


976  Criminal  Law 

tutiiig  the  violation,  whereupon  the  court  or  judge  shall 
forthwith  cause  a  warrant  to  issue  under  which  the  de- 
fendant shall  be  arrested.  The  trial  may  be  had  upon 
affidavits,  or  either  party  may  demand  the  production 
and  oral  examination  of  the  witness.  Any  person  found 
guilty  of  contempt  under  the  provisions  of  this  section 
shall  be  punished  by  a  fine  of  not  less  than  $500  nor  more 
tlian  $1,000,  or  by  imprisonment  of  not  less  than  thirty 
days  nor  more  tlmn  twelve  months,  or  by  both  fine  and 
imprisonment, 

§  1261.  Violation  to  have  in  possession  anything  to  aid 
in  manufacture.  Sec,  25.  It  shall  be  unU^wful  to  have  or 
possess  any  liquor  or  property  designed  for  the  manu- 
facture of  liquor  intended  for  use  in  violating  this  title 
or  which  has  been  so  used,  and  no  property  rights  shall 
exist  in  any  such  liquor  or  property,  A  search  warrant 
may  issue  as  provided  in  Title  XI  of  public  law  num- 
bered 24  of  the  Sixty-fifth  Congress,  approved  June  15, 
1917,  and  such  liquor,  the  containers  tliereof,  and  such 
property  so  seized  shall  be  subject  to  such  disposition  as 
tlie  court  may  make  thereof.  If  it  is  found  that  such 
li(iu(>r  or  property  was  so  unlawfully  held  or  j)ossessed, 
or  had  been  so  uidawfully  used,  the  licpior,  and  all  prop- 
erty designed  for  the  unlawful  mannracture  of  Tniuor, 
shall  be  destroyed,  unless  tlie  couil  shall  otherwise  order. 
No  search  warrant  shall  issue  to  seaich  any  ])rivate 
dwelling  occupied  as  such  unless  it  is  being  used  I'oi-  tiie 
unlawful  sale  of  intoxicating  li(iuor,  or  unless  it  is  in 
j»ar1  used  for  sonic  business  ])ui"])()se  such  as  a  store, 
shop,  saloon,  restaui'aiil,  hold,  oi'  boarding  house.  'V\\c 
term  "pi-ivatc  dwelling"  shall  he  eonsti'ued  lo  include 
the  room  or  I'ooins  used  and  occupied  not  transiently 
but  solely  as  a  resilience  in  an  apartment  house,  hotel,  or 
boai'ding  house.  The  properly  seized  on  any  such  war- 
rant shall  not  he  taken  from  the  ollieer  seizing  lh«!  same 
on  any  writ  of  ieple\in  or  other  like  process. 


The  National  Prohibition  Act  077 

§  1262.  Officer  may  take  vehicle  caught  in  transport- 
ing liquor.  Sec.  2G.  When  the  commissioner,  his  assist- 
ants, inspectors,  or  any  officer  of  the  law  shall  discover 
any  person  in  tlie  act  of  transporting,  in  violation  of  the 
law,  intoxicating  liquors,  in  any  wagon,  buggy,  auto- 
mobile, water  or  air  craft,  or  other  vehicle,  it  shall  be 
his  duty  to  seize  any  and  ,all  intoxicating  liquors  found 
therein  being  transported  contrary  to  law.  Whenever 
intoxicating  liquors  transported  or  possessed  illegally 
shall  be  seized  by  an  officer  he  shall  take  possession  of 
the  vehicle  and  team  or  automobile,  boat,  air  or  water 
craft,  or  any  other  conveyance,  and  shall  arrest  any  per- 
son in  charge  thereof.  Such  officer  shall  at  once  pro- 
ceed against  the  person  arrested  under  the  provisions  of 
this  title  in  any  court  having  competent  jurisdiction: 
but  the  said  vehicle  or  conveyance  shall  be  returned  to 
the  owner  upon  execution  by  him  of  a  good  and  valid 
bond,  with  sufficient  sureties,  in  a  sum  double  the  value 
of  the  property,  which  said  bond  shall  be  approved  by 
said  officer  and  shall  be  conditioned  to  return  said  prop- 
erty to  the  custody  of  said  officer  on  the  day  of  trial  to 
abide  the  judgment  of  the  court.  The  court  upon  con- 
viction of  the  person  so  arrested  shall  order  the  liquor 
destroyed,  and  unless  good  cause  to  the  contrary  is  shown 
by  the  owner,  shall  order  a  sale  by  public  auction  of 
the  property  seized,  and  the  oflicer  making  the  sale,  after 
deducting  the  expenses  of  keeping  the  property,  the  fee 
for  the  seizure,  and  the  cost  of  the  sale,  shall  pay  all 
liens,  according  to  their  priorities,  which  are  established, 
by  intervention  or  otherwise  at  said  hearing  or  in  other 
proceeding  brought  for  said  purpose,  as  being  bona  fide 
and  as  having  been  created  without  the  lienor  having 
any  notice  that  the  carrying  vehicle  was  being  used  or 
was  to  be  used  for  illegal  transportation  of  liquor,  and 
shall  pay  the  balance  of  the  proceeds  into  the  treasury 
of  the  United  States  as  miscellaneous  receipts.  All  liens 
against  property  sold  under  the  provisions  of  this  sec- 
c.  L.— 62 


978  Criminal  Law 

tioii  shall  be  transferred  from  the  property  to  the  pro- 
ceeds of  the  sale  of  the  property.  If,  however,  no  one 
shall  be  found  claiming  the  team,  vehicle,  water  or  air 
craft,  or  automobile,  the  taking  of  the  same,  with  a  de- 
scription thereof,  shall  be  advertised  in  some  newspaper 
published  in  the  city  or  county  where  taken  or  if  there 
be  no  newspaper  published  in  such  city  or  county,  in  a 
newspaper  having  circulation  in  the  county,  once  a  week 
for  two  weeks  and  by  handbills  posted  in  three  public 
places  near  the  place  of  seizure,  and  if  no  claimant  shall 
appear  within  ten  days  after  the  last  publication  of  the 
advertisement,  the  property  shall  be  sold  and  the  pro- 
ceeds, after  deducting  the  expenses  and  costs,  shall  be 
paid  into  the  treasury  of  the  United  States  as  miscellane- 
ous receipts. 

§  1263.  The  court  may  deliver  unlawful  liquor  to  any 
department.  Sec.  27.  In  all  cases  in  which  intoxicating 
liquors  may  be  subject  to  be  destroyed  uiulei-  the  pro- 
visions of  this  act  the  court  shall  have  jurisdiction  upon 
the  application  of  tiie  Tnited  States  attorney  to  oider 
them  delivered  to  any  department  or  agency  of  the  United 
States  Government  for  medicinal,  or  scientific  uses,  or 
to  order  the  same  sold  at  private  sale  for  sucli  purposes 
to  any  person  having  a  i)cnnit  to  jjurcliase  rniuoi'  to  be 
covered  into  the  treasury  of  the  I'nited  States  to  the 
credit  of  miscellaneous  i-eceipts,  and  all  licpior  hereto- 
fore seized  in  any  suit  or  proceeding  brought  for  viola- 
tion of  hiw  may  likewise  be  so  disposed  of,  if  not  claimed 
within  sixty  days  I'rom  the  (hate  tliis  section  takes  effect. 

§  1264.  All  officers  authorized  to  enforce  the  criminal 
laws  may  act.  Sec.  2S.  Tin'  eommissionei',  his  assistants, 
agents,  and  inspectors,  and  all  other  odicers  of  the  United 
States,  wimse  chity  it  is  to  enforce  criminal  laws,  shall 
have  ail  the  power  ;iii(l  prutcctinii  in  the  enforccmcnl  ol 
this  act  o|-  ;iny  ])i-o\isions  thereof  which   is  eonfencd  by 


The  National  Prohibition  Act  979 

law  for  the  enforcement  of  existing  laws  relating  to  tlie 
manufacture  or  sale  of  intoxicating  liquors  under  the  law 
of  the  United  States. 

§  1265.  Punishment  for  manufacturing,  etc.  Sec.  29. 
Any  person  who  manufactures  or  sells  liquor  in  viola- 
tion of  this  title  shall  for  a  first  offense  be  fined  not  more 
than  $1,000,  or  imprisoned  not  exceeding  six  months,  and 
for  a  second  or  subsequent  offense  shall  be  fined  not  less 
than  $200  nor  more  than  $2,000  and  be  imprisoned  not 
less  than  one  •month  nor  more  than  five  years. 

Any  person  violating  the  provisions  of  any  permit, 
or  who  makes  any  false  record,  report,  or  affidavit  re- 
quired by  this  title,  or  violates  any  of  the  provisions  of 
this  title,  for  which  offense  a  special  penalty  is  not 
prescribed,  shall  be  fined  for  a  first  otfense  not  more  than 
$500;  for  a  second  offense  not  less  than  $100  nor  more 
than  $1,000,  or  be  imprisoned  not  more  than  ninety  days ; 
for  any  subsequent  offense  he  shall  be  fined  not  less  than 
$500  and  ])e  imprisoned  not  less  than  three  months  nor 
more  than  two  years.  It  shall  be  the  duty  of  the  prose- 
cuting officer  to  ascertain  whether  the  defendant  has  been 
previously  convicted  and  to  plead  the  prior  conviction 
in  the  affidavit,  information,  or  indictment.  The  penal- 
ties provided  in  this  act  against  the  manufacture  of 
liquor  without  a  permit  shall  not  apply  to  a  person  for 
manufacturing  nonintoxicating  cider  and  fruit  juices  ex- 
clusively for  use  in  his  home,  but  such  cider  and  fruit 
juices  shall  not  be  sold  or  delivered  except  to  persons 
having  permits  to  manufacture  vinegar. 

§  1266.  No  person  can  excuse  himself  on  ground  that 
it  wiU  incriminate.  Sec.  30.  No  person  shall  be  excused, 
on  the  ground  that  it  may  tend  to  incriminate  him  or 
subject  him  to  a  penalty  or  forfeiture,  from  attending 
and  testifying,  or  producing  books,  papers,  documents, 
and  other  evidence  in  obedience  to  a  subpoena  of  any 


980  Ckiminal  Law 

court  in  any  suit  or  proceeding  based  upon  or  growing 
out  of  any  alleged  violation  of  this  act;  but  no  natural 
person  shall  be  prosecuted  or  subjected  to  any  penalty 
or  forfeiture  for  or  on  account  of  any  transaction,  mat- 
ter, or  thing  as  to  which,  in  obedience  to  a  subpoena  and 
under  oath,  he  may  so  testify  or  produce  evidence,  but  no 
person  shall  be  exempt  from  prosecution  and  punishment 
for  perjury  committed  in  so  testifying. 

§  1267.  Delivery  by  common  carrier — Jurisdiction  at 
point  delivered  to  consignee.  Sec.  31.  In  ease  of  a  sale 
of  liquor  where  the  delivery  thereof  was  made  by  a  com- 
mon or  other  carrier  the  sale  and  deliveiy  shall  be 
deemed  to  be  made  in  the  county  or  district  wherein  the 
deliveiy  was  made  by  such  carrier  to  the  consignee,  his 
agent  or  employee,  or  in  the  county  or  district  wherein 
the  sale  was  made,  or  from  which  the  shipment  was  made, 
and  prosecution  for  such  sale  or  delivery  may  be  had  in 
any  such  county  or  district. 

§  1268.  Several  counts  may  be  joined  and  conviction 
for  all  had.  Sec.  32.  In  any  affidavit,  information,  or  in- 
dictment for  the  violation  of  this  act,  separate  offenses 
may  be  united  in  separate  counts  and  the  defendant  may 
be  tried  on  all  at  one  trial  and  the  penalty  for  all  offenses 
may  be  imposed.  It  shall  not  be  necessary  in  any  afli- 
davit,  infonnation,  or  indictment  to  give  the  name  of 
the  purchaser  or  to  include  any  defensive  negative  aver- 
ments, but  it  sliall  be  sullicient  to  state  that  the  act  com- 
l)lained  <»f  was  tiien  and  there  proliiljited  and  unlawful, 
but  this  provision  shall  not  be  construed  to  preclude  the 
trial  conrt  IVoni  directing  the  furnishing  the  defendant  a 
bill  of  ])aiti(Milars  when  i1  deems  it  pi-oper  to  do  so. 

§  1269.  After  Feb.  1,  1920,  possession  prima  facia  evi- 
dence is  kept  for  sale.  Sec  .".:!.  Alter  Kehruaiy  1,  1920, 
the  i)ossessi<tn  of  lifpiors  by  any  person   not  legally  per- 


■    The  National  Prohibition  Act  981 

mitted  under  this  title  to  possess  liquor  shall  be  prima 
facie  evidence  that  such  liquor  is  kept  for  the  purpose 
of  being  sold,  bartered,  exchanged,  given  away,  fur- 
nished, or  otherwise  disposed  of  in  violation  of  the  pro- 
visions of  this  title.  Every  person  legally  permitted  un- 
der this  title  to  have  liquor  shall  report  to  the  commis- 
sioner within  ten  days  after  the  date  when  the  Eighteenth 
Amendment  of  the  Constitution  of  the  United  States  goes 
into  effect,  the  kind  and  amount  of  intoxicating  liquors 
in  his  possession.  But  it  shall  not  be  unlawful  to  pos- 
sess liquors  in  one's  private  dwelling  while  the  same  is 
occupied  and  used  by  him  as  his  dwelling  only  and  such 
liquor  need  not  be  reported,  provided  such  liquors  are 
for  use  only  for  the  personal  consumption  of  the  owner 
thereof  and  his  family  residing  in  such  dwelling  and  of 
his  bona  fide  guests  when  entertained  by  him  therein; 
and  the  burden  of  proof  shall  be  upon  the  possessor  in 
any  action  concerning  the  same  to  prove  that  such  liquor 
was  lawfully  acquired,  possessed  and  used. 

§  1270.  All  reports  required  to  be  filed  are  subject  to 
inspection.  Sec.  34.  All  records  and  reports  kept  or  filed 
under  the  provisions  of  this  act  shall  be  subject  to  in- 
spection at  any  reasonable  hour  by  the  commissioner  or 
any  of  his  agents  or  by  any  public  prosecutor  or  by  any 
person  designated  by  him,  or  by  any  peace  officer  in  the 
State  where  the  record  is  kept,  and  copies  of  such  rec- 
ords and  reports  duly  certified  by  the  person  with  whom 
kept  or  filed  may  be  introduced  in  evidence  with  like 
effect  as  the  originals  thereof,  and  verified  copies  of  such 
records  shall  be  furnished  to  the  commissioner  when 
called  for. 

§  1271.  All  laws  inconsistent  with  this  act  are  repealed. 

Sec.  35.  All  provisions  of  law  that  are  inconsistent  with 
this  act  are  repealed  only  to  the  extent  of  such  incon- 
sistency  and   the   regulations   herein   provided   for   the 


982  Criminal  Law 

manufacture  or  traffic  in  intoxicating  liquor  shall  be  con- 
stmed  as  in  addition  to  existing-  laws.  This  act  shall 
not  relieve  any  one  from  paying  any  taxes  or  other 
charges  imposed  upon  the  manufacture  or  traffic  in  such 
liquor.  No  liquor  revenue  stamps  or  tax  receipts  for  any 
illegal  manufacture  or  sale  shall  be  issued  in  advance, 
but  upon  evidence  of  such  illegal  manufacture  or  sale 
a  tax  shall  be  assessed  against,  and  collected  from,  the 
person  responsible  for  such  illegal  manufacture  or  sale 
in  double  the  amount  now  provided  by  law,  with  an  addi- 
tional penalty  of  $500  on  retail  dealers  and  $1,000  on 
manufacturers.  Tlie  payment  of  such  tax  or  penalty 
sliall  give  no  right  to  engage  in  the  manufacture  or 
sale  of  such  liquor,  or  relieve  anyone  from  criminal  lia- 
bility, nor  shall  this  act  relieve  any  person  from  any 
liability,  civil  or  criminal,  heretofore  or  hereafter  in- 
curred under  existing  laws. 

The  commissioner,  with  the  approval  of  the  Secretary 
of  the  Treasuiy,  may  compromise  any  civil  cause  aris- 
ing under  this  title  before  bringing  action  in  court;  and 
with  the  approval  of  the  Attorney  General  he  may  com- 
promise any  such  cause  after  action  thereon  has  Ixhmi 
commenced. 

§  1272.  Any  provision  of  this  act  invalid  does  not  af- 
fect others.  Sec.  86.  If  any  })rovision  of  this  act  shall 
be  licld  invalid  it  shall  not  he  construed  to  invalidate 
other  provisions  of  the  act. 

§  1273.  Liquor  may  be  stored  in  bonded  warehouses. 
Sec.  .'17.  Nothing  licrcin  shall  pi-evcn1  llie  storage  in 
T^iiit('<l  Stales  ])onde(l  wai'eliouses  of  all  li(iuor  manu- 
faclnrcd  prior  jo  Ihe  lakini;'  elTecl  of  this  act,  or  ])re 
vent  Hie  t  ranspoiMat  ion  ol"  sncli  Tnpioi"  to  such  waiv 
houses  Ol-  to  ;iny  wliolesale  (liiiui^ist  I'or  sale  to  snch 
druggist  for  pnrposes  not  prohihited  wlicii  the  tax  is 
p;ii<l,  .•iiid  |»eiiiiits  iii;iy  lie  i-^sned  t  liei"et"oi'. 


The  National  Prohibition  Act  983 

A  manufacturer  of  any  beveraoe  containing  less  than 
one-lialf  of  1  per  centum  of  alcohol  by  volume  may,  on 
making  application  and  giving  such  bond  as  the  commis- 
sioner shall  prescribe,  be  given  a  permit  to  develop  in 
the  manufacture  thereof  by  the  usual  methods  of  fer- 
mentation and  fortification  or  otherwise  a  liquid  such  as 
beer,  ale,  porter,  or  wine,  containing  more  than  one-half 
of  1  per  centum  of  alcohol  by  volume,  but  before  any 
such  liquid  is  withdrawn  from  the  factory  or  otherwise 
disposed  of  the  alcoholic  contents  thereof  shall  under 
such  rules  and  regulations  as  the  commissioner  may 
prescribe  be  reduced  below  such  one-half  of  1  per  centum 
of  alcohol:  Provided,  that  such  liquid  may  be  removed 
and  transported,  under  bond  and  under  such  regulations 
as  the  commissioner  may  prescribe  from  one  bonded 
plant  or  warehouse  to  another  for  the  purpose  of  hav- 
ing the  alcohol  extracted  therefrom.  And  such  liquids 
may  be  developed,  under  permit,  by  persons  other  than 
the  manufacturers  of  beverages,  containing  less  than 
one-half  of  1  per  centum  of  alcohol  by  volume,  and  sold 
to  such  manufacturers  for  conversion  into  such  bever- 
ages. The  alcohol  removed  such  liquid,  if  evaporated 
and  not  condensed  and  saved,  shall  not  be  subject  to 
tax;  if  saved,  it  shall  be  subject  to  the  same  law  as  other 
alcoholic  liquors.  Credit  shall  be  allowed  on  the  tax 
due  on  any  alcohol  so  saved  to  the  amount  of  any  tax 
paid  upon  the  distilled  spirits  or  brandy  used  in  the  forti- 
fication of  the  liquor  from  which  the  same  is  saved. 
When  fortified  wines  are  made  and  used  for  the  pro- 
duction of  nonbeverage  alcohol,  and  dealcoholized  wines 
containing  less  than  one-half  of  1  per  centum  of  alcohol 
by  volume,  no  tax  shall  be  assessed  or  the  spirits  used 
in  such  fortification,  and  such  dealcoholized  wines  pro- 
duced under  the  provisions  of  this  act,  whether  carbon- 
ated or  not,  shall  not  be  subject  to  the  tax  on  artificially 
carbonated  or  sparkling  wines,  but  shall  be  subject  to 
the  tax  on  still  wines  only. 


984  Cbimixal  Law 

In  any  case  where  the  manufacturer  is  charged  with 
manufacturing  or  selling  for  beverage  puii30ses  any 
malt,  vinous,  or  fermented  liquids  containing  one-half  of 
1  per  centum  or  more  of  alcohol  by  volume,  or  in  any 
case  where  the  manufacturer,  having  been  permitted  by 
the  commissioner  to  develop  a  liquid  such  as  ale,  beer, 
porter,  or  wine,  containing  more  than  one-half  of  1  per 
centum  of  alcohol  by  volume  in  the  manner  and  for 
the  purpose  herein  provided,  is  charged  with  failure  to 
reduce  the  alcoholic  content  of  any  such  liquid  below 
such  one-half  of  1  per  centum  before  withdrawing  the 
same  from  the  factory,  then  in  either  such  case  the  bur- 
den of  proof  shall  be  on  such  manufacturer  to  show  that 
such  liquid  so  manufactured,  sold,  or  withdrawn  con- 
tains less  than  one-half  of  1  per  centum  of  alcohol  by 
volume.  In  any  suit  or  proceeding  involving  the  alco- 
holic content  of  any  beverage,  the  reasonable  expense 
of  analysis  of  such  beverage  shall  be  taxed  as  costs  in  the 
case. 

§  1274.  The  conmiissioner  of  internal  revenue  and  at- 
torney general  may  employ  assistants.  Sec.  38.  The  com- 
missioner of  iiilonial  revenue  and  the  Attorney  General 
of  the  United  States  are  hereby  respectively  autliorized 
to  appoint  and  employ  such  assistants,  experts,  clerks, 
and  other  employees  in  the  District  of  Columbia  or  else- 
where, and  to  purchase  such  supplies  and  equipment  as 
they  may  deem  necessary  for  the  enforcements  of  the 
provisions  of  this  act,  l)ut  sucli  assistants,  experts,  clerks, 
nnd  o11ici-  cinployt'cs,  except  such  executive  officers  as 
may  \h-  appointed  l)y  the  connnissioner  or  the  attorney 
general  to  liave  immediate  direction  of  the  enforcement 
of  the  provisions  of  this  act,  and  ])ersons  authorized 
to  issue  jx'i'inits,  and  agents  nnd  inspectors  in  tlie  field 
service,  siiall  ))e  n))j»ointe(l  niider  tiie  ruh's  and  regula- 
tions prescribed  by  the  Civil  Service  Act:  Provided, 
'I'hnt  the  coiiiinissioner  niid  nttorney  general  in  mak- 
ing   sneh    ;ipi>oiiitin<'nts    shall    uiv(»    jn'eferenee    to    those 


The  National  Prohibition  Act  985 

who  have  served  in  the  military  or  naval  service  in  the 
recent  war,  if  otherwise  qualified,  and  there  is  hereby 
authorized  to  be  appropriated,  out  of  any  money  in  the 
Treasury,  not  otherwise  appropriated,  such  sum  as  may 
be  required  for  the  enforcement  of  this  act  including  per- 
sonal services  in  the  District  of  Columbia,  and  for  the 
fiscal  year  ending  June  30,  1920,  there  is  hereby  ap- 
propriated, out  of  any  money  in  the  Treasury,  not  other- 
wise appropriated,  the  sum  of  $2,000,000  for  the  use 
of  the  commissioner  of  internal  revenue  and  $100,000 
for  the  use  of  the  Department  of  Justice  for  the  enforce- 
ment of  the  provisions  of  this  act,  including  personal 
services  in  the  District  of  Columbia  and  necessary  print- 
ing and  binding. 

§  1275.  Where  property  is  proceeded  against  summons 
must  be  served  on  accused.  Sec.  39.  In  all  cases  wherein 
the  property  of  any  citizen  is  proceeded  against  or  where- 
in a  judgment  affecting  it  might  be  rendered,  and  the 
citizen  is  not  the  one  who  in  person  violated  the  pro- 
visions of  the  law,  summons  must  be  issued  in  due  form 
and  served  personally,  if  said  person  is  to  be  found  within 
the  jurisdiction  of  the  court.^ 

TITLE   III 
GENERAL  PROVISIONS 

§  1276.  General  provisions  United  States  Prohibition 
Act.  Sec.  12.  The  penalties  provided  in  this  title  shall 
be  in  addition  to  any  penalties  provided  in  title  2  of  this 
act,  unless  expressly  otherwise  therein  provided.^ 

§  1277.  Regulations,  etc.,  to  be  prescribed.  Sec.  13. 
The  commissioner  shall  from  time  to  time  issue  regula- 
tions respecting  the  establishment,  bonding,  and  opera- 

2— Sees.  1  to  12,  title  III  do  not  U.    S.    Prohibition    Act.      Sec.    12, 

relate    to    criminal    features    of    the  approved    Oct    27,    1919,    41    Stat, 

act.  321. 

3 — Title    III    General    Provisions 


986  Ceiminal  Law 

tion  of  industrial  alcohol  plants,  denaturing  plants,  and 
bonded  warehouses  authorized  herein,  and  the  distribu- 
tion, sale,  export  and  use  of  alcohol,  which  may  be  neces- 
sary, advisable,  or  proper  to  secure  the  revenue,  to  pre- 
vent diversion  of  the  alcohol  to  illegal  uses,  and  to  place 
the  nonbeverage  alcohol  industry  and  other  industries 
using  such  alcohol  as  a  chemical  raw  material  or  for  other 
lawful  purpose,  upon  the  highest  possible  plane  of  scien- 
tific and  commercial  efficiency  consistent  with  the  inter- 
ests of  the  government,  and  which  shall  insure  an  ample 
supply  of  such  alcohol  and  promote  its  use  in  scientific 
research  and  the  development  of  fuels,  dyes,  and  other 
lawful  products.* 

§  1278.  Allowance  for  evaporation,  leakage,  etc.  Sec. 
14.  Whenever  any  alcohol  is  lost  by  evaporation  or 
other  shrinkage,  leakage,  casualty,  or  unavoidable  cause 
during  distillation,  redistillation,  denaturation,  with- 
drawal, piping,  shipment,  warehousing,  storage,  packing, 
transfer,  or  recovery,  of  any  such  alcohol  the  commis- 
sioner may  remit  or  refund  any  tax  incurred  under  ex- 
isting law  upon  such  alcohol,  provided  he  is  satisfied 
that  the  alcohol  has  not  been  diverted  to  any  illegal  use: 
Provided,  also,  That  such  allowance  shall  not  be  granted 
if  tiie  person  claiming  same  is  indemnified  against  siicli 
loss  by  a  valid  claim  of  insurance.^ 

§  1279.  Punishment  for  violation  provisions  of  this 
title.  Wiioever  operates  ;iii  iiidusl  ri;il  .-ilcoliol  j)l;nit  or  a 
deiiatuiiiig  plant  williont  coiuplyiiig  with  the  ])rovisions 
of  this  title  and  lawful  regulations  made  thei'eunder,  or 
wiioexcr  withdiaws  oi-  attempts  to  withdi'aw  or  secure 
tax  free  any  alcohol  subject  to  tax,  or  \vlio(\'ei'  otherwise 
\i<»lates  any  of  the  |ii()\'isioiis  of  this  title  or  of  I'egula- 

4 — Title    ill,    CJcnunil    ProvisioiiH  5 — 'J'illc    111,    (icm^ral    ProviHions 

V.  H.  Proliiiiition  Act,  Sec.  13,  nj)-  U.  S.  Proliiiiition  Act,  Sec.  H,  Jip- 
|prov.M|   Oct.    L'7,    1919,   41    S«:it.   .'{lil.        prr.vr.l    Oct.   27,   1919,   41    Stat.   321. 


The  National  Prohibition  Act  987 

tioiis  lawfully  made  t hereunder,  shall  be  liable,  for  the 
first  offense,  to  a  penalty  of  not  exceeding  $1,000,  or 
imprisonment  not  exceeding  thirty  days,  or  both,  and 
for  a  second  or  cognate  offense  to  a  penalty  of  not  less 
than  $100  nor  more  than  $10,000,  and  to  imprisonment 
of  not  less  than  thirty  days  nor  more  than  one  year.  It 
shall  be  lawful  for  the  commissioner  in  all  cases  of 
second  or  cognate  offense  to  refuse  to  issue  for  a  period 
of  one  year  a  permit  for  the  manufacture  or  use  of  alco- 
hol upon  the  premises  of  any  person  responsible  in  any 
degree  for  the  violation.^ 

§  1280.  Discretionary  method  of  collecting  tax.  Any 
tax  payable  upon  alcohol  under  existing  law  may  be 
collected  either  by  assessment  or  by  stamp  as  regulations 
shall  provide;  and  if  by  stamp,  regulations  shall  issue 
prescribing  the  kind  of  stamp  to  be  used  and  the  man- 
ner of  affixing  and  cancelling  the  same.' 

§  1281.  Release  of  seized  property  under  bond.  When 
any  property  is  seized  for  violation  of  this  title  it  may 
be  released  to  the  claimant  or  to  any  intervening  party, 
in  the  discretion  of  the  Commissioner,  on  a  bond  given 
and  approved.® 

§  1282.  General  revenue  laws,  etc.,  applicable.  All  ad- 
ministrative provisions  of  internal-revenue  law,  includ- 
ing those  relating  to  assessment,  collection,  abatement, 
and  refund  of  taxes  and  penalties,  and  the  seizure  and 
forfeiture  of  property,  are  made  applicable  to  this  title  in 
so  far  as  they  are  not  inconsistent  with  the  provisions 
thereof.® 

6 — Title  III,  General  Provisions  8 — Title  III,  General  Provisions 
U.  S.  Prohibition  Act,  Sec.  15,  ap-  U.  S.  Prohibition  Act,  Sec.  17,  ap- 
proved Oct.  27,  1919,  41  Stat.  321.  proved  Oct.  27,  1919,  41  Stat.  322. 

7 — Title  III,  General  Provisions  9 — Title  III,  General  Provisions 
U.  S.  Prohibition  Act,  Sec.  16,  ap-  U.  S.  Prohibition  Act,  Sec.  18,  ap- 
proved Oct.  27,   1919,  41   Stat.  322.  proved  Oct.   27,  1919,  41   Stat.  322. 


988  Criminal  Law 

§  1283.  Inconsistent  laws  repealed.  All  prior  statutes 
relating  to  alcohol  as  deliiied  in  this  title  are  hereby  re- 
pealed in  so  far  as  they  are  inconsistent  with  the  provi- 
sions of  this  title.^° 

§  1284.  Canal  Zone,  general  prohibition  of  liquors  with- 
in. That  it  shall  be  unlawful  to  import  or  introduce  into 
the  Canal  Zone,  or  to  manufacture,  sell,  give  away,  dis- 
pose of,  transport,  or  have  in  one's  possession  or  under 
one's  control  within  the  Canal  Zone,  any  alcoholic,  fer- 
mented, brewed,  distilled,  vinous,  malt,  or  spirituous 
liquors,  except  for  sacramental,  scientific,  pharmaceuti- 
cal, industrial,  or  medicinal  purposes,  under  regulations 
to  be  made  by  the  President,  and  any  such  liquors  within 
the  Canal  Zone  in  violation  liereof  shall  be  forfeited  to 
the  United  States  and  seized:  Provided,  That  this  section 
shall  not  apply  to  liquor  in  transit  througli  the  Panama 
Canal  or  on  the  Panama  Eailroad. 

That  each  and  every  violation  of  any  of  the  provisions 
of  this  section  shall  be  punished  by  a  fine  of  not  more 
than  $1,000  or  imprisonment  not  exceeding  six  months 
for  a  first  offense,  and  by  a  fine  not  less  than  $200  nor 
more  than  $2,000  and  imprisonment  not  less  than  one 
month  nor  more  than  live  years  for  a  second  or  subse- 
quent offense. 

Tliat  all  oifenses  heretofore  connnitted  within  the  Canal 
Zone  may  be  prosecuted  and  all  penalties  therefor  en- 
forced in  llie  same  manner  and  to  the  same  extent  as  if 
this  act  liad  iiol  ht'en  passed. ^^ 

§1285.  Time  of  enforcement,  immediately.  Titles  1  and 
III  and  sections  1,  27,  .'17,  and  ."JS  of  litle  II  of  lliis  act 
shall  take  effect  aii<l  he  in  I'mci'  from  and  after  the  pas- 
sage  and   Jipprovni    <if   the   ad.     The   oilier   sections   of 

10— Title   III,  Goncrjil  ProviHions  11— Titlo    III,  General  ProvisionH 

U.  S.  Proliibition  Act,  Sec.   19,  ap-       U.  8.  Proliiliiiion  Act,  Sec.  20,  ap- 
proved Oct.  27,   1919,  41    St.'it.  322.       proved   Oct.   27,   1919,    Jl    Stnt.  322. 


The  National  Prohibition  Act  989 

title  II  shall  take  effect  and  be  in  force  from  and  after 
the  date  when  the  Eighteenth  Amendment  of  the  Con- 
stitution of  the  United  States  goes  into  effect.^'' 

F.  H.  Gillett, 
Speaker  of  the  House  of  Representatives. 
Thos.  R.  Marshall, 
Vice  President  of  the  United  States  and  President  of 
the  Senate. 

§  1286.  Alcohol  obtained  for  denaturing  purposes  un- 
der Act  June  7,  1906,  and  sells  same — Penalty.  That  any 
person  who  withdraws  alcohol  free  of  tax  under  the 
provisions  of  this  act  and  regulations  made  in  pursu- 
ance thereof,  and  who  removes  or  conceals  same,  or  is 
concerned  in  removing,  depositing  or  concealing  same  for 
the  purpose  of  preventing  the  same  from  being  denatured 
under  governmental  supervision,  and  any  person  who 
uses  alcohol  withdrawn  from  bond  under  the  provisions 
of  section  one  of  this  act  for  manufacturing  any  bever- 
age or  liquid  medicinal  preparation,  or  knowingly  sells 
any  beverage  or  liquid  medicinal  preparation  made  in 
whole  or  in  part  from  such  alcohol,  or  knowingly  vio- 
lates any  of  the  provisions  of  this  act,  or  who  shall  re- 
cover or  attempt  to  recover  by  redistillation  or  by  any 
other  process  or  means,  any  alcohol  rendered  unfit  for 
beverage  or  liquid  medicinal  purposes  under  the  provi- 
sions of  this  act,  or  who  knowingly  uses,  sells,  conceals, 
or  otherwise  disposes  of  alcohol  so  recovered  or  redis- 
tilled, shall  on  conviction  of  each  offense  be  fined  not 
more  than  five  thousand  dollars,  or  be  imprisoned  not 
more  than  five  years,  or  both,  and  shall,  in  addition,  for- 
feit to  the  United  States  all  personal  property  used  in 
connection  with  his  business,  together  with  the  build- 
ings and  lots  or  parcels  of  ground  constituting  the  prem- 

12— Title  III  National  Prohibition 
Act,  approved  Oct.  27,  1919,  41 
Stat.  322. 


990  Criminal  Law 

ises  of  which  said  uiihiwful  acts  are  performed  or  per- 
mitted to  be  performed:  Provided,  Tliat  manufacturers 
employing  processes  in  which  alcohol,  used  free  of  tax 
under  the  provisions  of  this  act,  is  expressed  or  evapor- 
ated from  the  articles  manufactured,  shall  be  pennitted 
to  recover  such  alcoliol  and  to  have  such  alcohol  restored 
to  a  condition  suitable  solely  for  re-use  in  manufactur- 
ing processes  under  such  regulations  as  the  commissioner 
of  internal  revenue,  with  the  approval  of  the  secretary 
of  the  treasuiy,  shall  prescribe. ^^ 

§  1287.  Every  owner,  agent,  etc.,  of  brewery  who  at- 
tempts or  evades  the  payment  of  the  tax  guilty  of  mis- 
demeanor. Every  owner,  agent,  or  superintendent  of  any 
breweiy,  vessels,  or  utensils  used  in  making  fermented 
liquors,  who  evades,  or  attempts  to  evade,  the  payment 
of  the  tax  thereon,  or  fraudulently  neglects  or  refuses 
to  make  true  and  exact  entry  and  report  of  the  same  in 
the  manner  recpiired  by  law,  or  to  do,  or  cause  to  be 
done,  any  of  the  things  by  law  required  to  be  done  by 
him,  as  aforesaid,  or  who  intentionally  makes  false  entry 
in  said  book  or  in  said  statement,  or  knowingly  allows 
or  procures  the  same  to  be  done,  shall  forfeit,  for  every 
sucli  offense,  all  the  liquors  made  by  him  or  for  him, 
and  nil  llie  vessels,  utensils,  and  ;i])i)arahis  usimI  in  mak- 
ing the  same,  and  l)e  lial)le  to  a  ])enalty  ol'  not  less  than 
five  hundred  nor  more  than  one  thousand  dollars,  to  be 
recovered  with  costs  of  suit,  and  shall  l)e  deemed  guilty 
<tt'  a  inisdcincaiKii',  nnd  he  iinprisoncd  for  n  tci'in  not  ex- 
ceeding one  year.  And  cnciv  hrcwcr  who  neglects  to 
keep  books,  or  refuses  to  linnish  the  account  and  dupli- 
cate thereof  as  provided  l»y  hiw ,  oi-  i-efuses  to  permit  the 
pi'iijicr  (»nic('r  to  cN.'iininc  Ihr  hi)oks  in  the  ninniicr  |)ro- 
\idt'(l,  shall,  I'or  cnci'v  such  rri'usnl  of  neglect,  {'(nfeit 
and  p;iy  tiie  sum  of  three  hundred  dollai's.^^ 

13— Hoc.   2,   Act    .lun.>   7,    l!Mi(i,   ;m  14      If,. v.   St.-it.   ii.'Md,   Act   .liino  (>, 

.Stat.    217.  1H7'J,    17   St.-it.  246. 


The  National  Prohibition  Act  991 

§  1288.  Withdrawing-  fermented  liquors  from  cask  upon 
which  there  is  no  stamp — Penalty.  Whenever  any  retail 
dealer,  or  other  person,  withdraws  or  aids  in  the  with- 
drawal of  any  fermented  liquor  from  any  hogshead,  bar- 
rel, keg,  or  other  vessel  containing  the  same,  without 
destroying  or  defacing  the  stamp  affixed  thereon,  or  with- 
draws or  aids  in  the  withdrawal  of  any  femiented  liquor 
from  any  hogshead,  barrel,  keg,  or  other  vessel,  upon 
which  the  proper  stamp  has  not  been  affixed  or  on  which 
a  false  or  fraudulent  stamp  is  affixed,  he  shall  be  fined 
one  hundred  dollars  and  imprisoned  for  not  more  than 
one  year.^^ 

§  1289.  Selling-  fermented  liquors  from  any  cask,  barrel 
or  keg-  upon  which  stamp  has  not  been  affixed — Penalty. 
Whenever  any  brewer,  cartman,  agent  for  transportation, 
or  other  person,  sells,  removes,  receives,  or  purchases, 
or  in  any  way  aids  in  the  sale,  removal,  receipt,  or  pur- 
chase, of  any  fermented  liquor  contained  in  any  hogs- 
head, barrel,  keg,  or  other  vessel  from  any  brewery  or 
brewery  warehouse,  upon  which  the  stamp,  or  permit, 
in  case  of  removal,  required  by  law,  has  not  been  affixed, 
or  on  which  a  false  or  fraudulent  stamp,  or  peraiit,  in  case 
of  removal,  is  affixed,  with  knowledge  that  it  is  such,  or 
on  which  a  stamp,  or  perniit,  in  case  of  removal,  once 
canceled,  is  used  a  second  time,  he  shall  be  fined  one  hun- 
dred dollars  and  imprisoned  for  not  more  than  one  year.^^ 

§  1290.  Counterfeiting-  or  making-  false  stamp  for  fer- 
mented liquor — Penalty.  Every  person  who  makes,  sells, 
or  uses  any  false  or  counterfeit  stamj)  or  permit,  or  die 
for  printing  or  making  stamps  or  permits,  which  is  in 
imitation  of  or  pui-ports  to  be  a  lawful  stamp,  permit,  or 
die  of  the  kind  before  mentioned  in  this  chapter,  or  who 
procures  the  same  to  be  done,  and  evei-y  person  who  shall 

15— Eev.  Stat.  3344,  Act  June  6,     16— Rev.  Stat.  3343,  Act  June  6, 
1872,  17  Stat.  247.  1872,  17  Stat.  247. 


992  Ckiminal  Law 

remove,  or  cause  to  be  removed,  from  any  cask  or  pack- 
age of  feraiented  liquors,  any  stamp  denoting  the  tax 
thereon,  with  intent  to  re-use  such  stamp,  or  who,  with 
intent  to  defraud  the  revenue,  knowingly  uses,  or  penults 
to  be  used,  any  stamp  removed  from  another  cask  or 
package,  or  receives,  buys,  sells,  gives  away,  or  has  in 
his  possession,  any  stamp  so  removed,  or  makes  any 
fraudulent  use  of  any  stamp  for  fermented  liquors,  shall 
be  fined  not  less  than  one  hundred  dollars  nor  more  than 
one  thousand  dollars,  and  imprisoned  not  less  than  six 
months  nor  more  than  three  years. ^"^ 

§  1291.  Stamp  on  hogshead  or  other  receptacle  contain- 
ing fermented  liquor,  must  not  be  severed  or  defaced 
except  by  owner.  Every  person,  other  than  the  purchaser 
or  owner  of  any  fermented  liquor,  or  person  acting  on  his 
behalf,  or  as  his  agent,  who  intentionally  removes  or  de- 
faces the  stamp  or  permit  affixed  upon  the  hogshead, 
barrel,  keg,  or  other  vessel,  in  which  the  same  is  con- 
tained, shall  be  liable  to  a  fine  of  fifty  dollars  for  each 
such  vessel  from  which  the  stamp  or  pennit  is  so  removed 
or  defaced,  and  to  render  compensation  to  such  purcliaser 
or  owner  for  all  damages  sustained  by  him  there froni.^^ 

§  1292.  Distiller  knowingly  using  any  false  measure 
under  act  July  20,  1868.  KiVcry  ix'ison  wlio  knowingly 
uses  any  false  weights  or  measures  in  ascertaining, 
weighing,  or  measuring  the  (innntities  of  grain,  meal,  or 
vegetable  materials,  molasses,  beer,  or  other  sul)stances 
to  be  used  for  distilhition,  shall  be  fined  not  less  than  five 
liundred  dolhirs  nor  more  than  five  thousand  dollars,  and 
imprisoned  not  less  than  one  year  nor  more  tlian  tliree 
years.  Any  person  wlio  uses  any  molasses,  beer,  or  otlier 
substance,  wlietlier  fermented  on  th(^  premises  or  else- 
where, for  the  purpose  of  ])ro(lu('ing  s])irits,  before  an 
Mcfonnt  of  llie  s;mie  is  I'egistei'ed  in  llie  pi'oper  book  ])ro- 

17— Knv.     Stat.     3.34G,    Mnrch     ],  18— R.  S.  335.3,  Sec.  30,  Act  .June 

1879.   20   Rtnt.   340.  6,   1872,   17   Stat.  249. 


The  National  Prohibition  Act  993 

vided  for  that  purpose,  shall  forfeit  and  pay  the  sum  of 
one  thousand  dollars  for  each  offense  so  committed.^® 

§  1293.  Revenue  officers  permitting-  the  use  of  canceled 
stamps  under  Act  July  20,  1868 — Penalty.  Whenever  any 
revenue  officer  who  shall  affix  or  cancel  or  cause  or  per- 
mit to  be  affixed  or  canceled,  any  stamp  relating  to  dis- 
tilled spirits  provided  for  by  law,  in  any  other  manner  or 
in  any  other  place,  or  issues  the  same  to  any  other  person 
than  as  provided  by  law,  or  by  regulation  made  in  pur- 
suance thereof,  or  knowingly  affixes,  or  permits  to  be 
affixed,  any  such  stamp  to  any  cask  or  package  or  spirits 
of  which  the  whole  or  any  part  has  been  distilled,  recti- 
fied, compounded,  removed,  or  sold,  in  violation  of  law, 
or  which  has  in  any  manner  escaped  payment  of  tax  due 
thereon,  he  shall,  for  every  such  offense,  be  fined  not  less 
than  five  hundred  dollars  nor  more  than  three  thousand 
dollars  and  be  imprisoned  for  not  less  than  six  months 
nor  more  than  three  years.^** 

§  1294.  Adding-  before  payment  of  tax  on  distilled  spir- 
its, substance  to  create  fictitious  proof  under  act  July  20, 
1868 — Punishment.  Every  person  who  adds  or  causes  to  be 
added  any  ingredient  or  substance  to  any  distilled  spirits 
before  the  tax  is  paid  thereon,  for  the  purpose  of  creating 
a  fictitious  proof,  shall  be  fined  not  less  than  one  hundred 
dollars  nor  more  than  one  thousand  dollars  for  each  cask 
or  package  so  adulterated,  and  imprisoned  not  less  than 
three  months  nor  more  than  two  years;  and  every  such 
be  forfeited  to  the  United  States.^^ 

§  1295.  Under  act  March  31,  1868,  distiller  attempts  or 
defrauds  government — Punishment.  Whenever  any  per- 
son engaged  in  carrying  on  the  business  of  a  distiller  de- 
frauds or  attempts  to  defraud  the  United  States  of  the 

19— Act  July   20,   1868,   15   Stat.  21— Act  July  20,  1868,  Eev.  Stat. 

1-41,  Eev.   Stat.  3306.  3252,  15  Stat.  141. 

20— Sec.    29,    July    20,    1868,    15 
Stat.    138. 

C.  L.— 63 


994  Ceiminal  Law 

tax  on  the  spirits  distilled  by  him,  or  any  part  thereof,  he 
shall  forfeit  the  distillery  and  distilling-apparatus  used 
by  him,  and  all  distilled  spirits  and  raw  materials  for  the 
production  of  distilled  spirits  found  in  the  distillery  and 
on  the  distillery  premises,  and  shall  be  fined  not  less  than 
five  hundred  dollars  nor  more  than  five  thousand  dollars, 
and  be  imprisoned  not  less  than  six  months  nor  more  than 
three  years.^^ 

§  1296.  Act  July  20,  1868,  distiller  must  register  still 
with  collector  —  Violation  —  Punishment.  Every  person 
having-  in  his  possession  or  custody,  or  under  his  control, 
any  still  or  distilling  apparatus  set  up,  shall  register  the 
same  with  the  collector  of  the  district  in  which  it  is,  by 
subscribing  and  filing  with  him  duplicate  statements,  in 
writing,  setting  forth  the  particular  place  where  such 
still  or  distilling-apparatus  is  set  up,  the  kind  of  still  and 
its  cubic  contents,  the  owner  thereof,  his  place  of  resi- 
dence, and  the  purpose  for  which  said  still  or  distilling- 
apparatus  has  been  or  is  intended  to  be  used;  one  of 
which  statements  shall  be  retained  and  preserved  by  the 
collector,  and  the  other  transmitted  by  liim  to  the  com- 
missioner of  internal  revenue.  Stills  and  distilling-ap- 
paratus shall  be  registered  immediately  upon  their  being 
set  up.  Every  still  or  distilling-apparatus  not  so  regis- 
tered, together  with  all  personal  property  in  the  posses- 
sion or  custody,  or  under  the  control  of  such  person,  and 
found  ill  the  building,  or  in  Miiy  yard  or  inclosure  con- 
nected willi  the  building  in  wiiich  the  same  may  be  set 
up,  slinll  he  forfeited.  And  every  person  having  in  his 
possession  or  custody,  or  under  his  control,  any  still  or 
distilling-appjiratus  set  up  whicli  is  not  so  registered, 
shall  pay  a  penalty  of  five  hundred  dollars,  and  shall  be 
finr'd  not  less  1h;in  one  hundiccl  dollars,  nor  more  than 

22— Act    March     'M,     18G8,    Rev. 
Stat.  32.'37,  15  Stat.  .'59. 


The  National  Peohibition  Act  995 

one  thousand  dollars,  and  imprisoned  for  not  less  than 
one  month,  nor  more  than  two  years.^^ 

§  1297.  Act  July  20,  1868,  distiller  must  g^ive  notice  of 
engaging-  in  business — Failure — Penalty.  Every  person 
engaged  in,  or  intending  to  be  engaged  in,  the  business 
of  a  distiller  or  rectifier,  shall  give  notice  in  writing,  sub- 
scribed by  him,  to  the  collector  of  the  district  wherein 
such  business  is  to  be. carried  on,  stating  his  name  and 
residence,  and  if  a  company  or  firm,  the  name  and  resi- 
dence of  each  member  thereof,  the  name  and  residence 
of  every  person  interested  or  to  be  interested  in  the  busi- 
ness, the  precise  place  where  said  business  is  to  be  car- 
ried on,  and  whether  of  distilling  or  rectifying;  and  if 
such  business  is  carried  on  in  a  city,  the  residence  and 
place  of  business  shall  be  indicated  by  the  name  of  the 
street  and  number  of  the  building.  In  case  of  a  distiller, 
the  notice  shall  also  state  the  kind  of  stills  and  the  cubic 
contents  thereof,  the  number  and  kind  of  boilers,  the 
number  of  mash-tubs  and  fennenting-tubs,  the  cubic  con- 
tents of  each  tub,  the  number  of  receiving-cisterns,  the 
cubic  contents  of  each  cistern,  the  number  of  hours  in 
Avhich  the  distillery  will  ferment  each  tub  of  mash  or 
beer,  the  estimated  quantity  of  distilled  spirits  which  the 
apparatus  is  capable  of  distilling  every  twenty-four 
hours,  a  particular  description  of  the  lot  or  tract  of  land 
on  which  the  distillery  is  situated,  and  the  buildings 
thereon,  including  their  size,  material,  and  construction; 
and  that  said  distillery  premises  are  not  within  six  hun- 
dred feet,  in  a  direct  line,  of  any  premises  authorized  to 
be  used  for  rectifying  or  refining  distilled  spirits  by  any 
process.  In  case  of  a  rectifier,  the  notice  shall  state  the 
precise  place  where  such  business  is  to  be  carried  on,  the 
name  and  residence  of  every  person  interested  or  to  be 
interested  in  the  business,  the  process  by  which  the  appli- 

23— Rev.  Stat.  3258,  See  Act  Dec. 
24,  1872,  17  Stat.  402. 


996  Criminal  Law 

cant  intends  to  rectify,  purify,  or  refine  distilled  spirits, 
the  kind  and  cubic  contents  of  any  still  used  or  to  be  used 
for  such  purpose,  the  estimated  quantity  of  spirits  which 
can  be  rectified,  purified,  or  refined  eveiy  twenty-four 
hours  in  such  establishment,  and  that  said  rectifying- 
establishment  is  not  within  six  hundred  feet,  in  a  direct 
line,  of  the  premises  of  any  distillery  registered  for  the 
distillation  of  spirits.  In  case  of  any  change  in  the 
location,  form,  capacity,  ownership,  agency,  superintend- 
ency,  or  in  the  persons  interested  in  the  business  of  such 
distillery  or  rectifying-establishment,  or  in  the  time  of 
fermenting  the  mash  or  beer,  notice  thereof,  in  writing, 
shall  be  given  to  the  said  collector  or  proper  deputy  col- 
lector, of  the  district  within  twenty-four  hours  after  such 
change;  and  any  deputy  collector  receiving  such  notice 
shall  immediately  transmit  the  same  to  the  collector  of 
the  district.  Every  notice  required  by  this  section  shall 
be  in  such  form,  and  shall  contain  such  additional  partic- 
ulars, as  the  commissioner  of  intenial  revenue  may,  from 
time  to  time,  prescribe.  Eveiy  person  who  fails  or  re- 
fuses to  give  such  notice  shall  pay  a  penalty  of  one  thou- 
sand dollars,  and  shall  be  fined  not  less  than  one  hundred 
dollars  nor  more  than  two  thousand  dollars;  and  every 
person  who  gives  a  false  or  fraudulent  notice  shall,  in 
addition  to  sucli  penalty  or  fine,  be  imprisoned  not  less 
tliaii  six  iiioiillis  nor  more  tliaii  two  years.^* 

§  1298.  Prchibition  against  certain  places  where  still 
may  be  set  up  under  act  June  6,  1872.  No  jierson  sliall  use 
any  still,  boiler,  or  otlier  vessel,  for  the  purpose  of  distill- 
ing, in  any  dwelling-house,  or  in  any  shed,  yard  or 
inclosnic  (•((iincctccl  wllli  any  (IwcHiiig-liousc,  oi*  on  l)oar(l 
of  any  vessel  oi*  boat,  or  in  any  Ijuilding,  or  on  any  |)rem- 
iscs  wluTc  Ix'cr,  lai^ci'-ltcci',  ale,  ])oit('i',  or  other  l"er- 
incntcd  lifpiors,  \'in(',u'ar  or  ctlier,  arc  nianutactni'cd  or 
|ii'o(lncc(l,  (ir  wlicrc  snuars  oi'  sii'nps  aic  iclincd,  oi-  where 

24— Act  Dec.  24,  1872,   Hov.  Stnt. 
3259,   17  Stat.  401. 


The  National  Prohibition  Act  997 

liquors  of  any  description  are  retailed,  or  where  any 
other  business  is  carried  on;  or  within  six  hundred  feet 
in  a  direct  line  of  any  premises  authorized  to  be  used  for 
rectifying;  and  every  person  who  does  any  of  the  acts 
prohibited  by  this  section,  or  aids  or  assists  therein,  or 
causes  or  procures  the  same  to  be  done,  shall  be  fined  one 
thousand  dollars  and  imprisoned  for  not  less  than  six 
months  nor  more  than  two  years,  in  the  discretion  of  the 
court,  for  each  such  oifense:  Provided,  That  saleratus 
may  be  manufactured,  or  meal  or  flour  ground  from 
grain,  in  any  building  or  on  any  premises  where  spirits 
are  distilled;  but  such  meal  or  flour  shall  be  used  only  for 
distillation  on  the  premises:  Provided,  further.  That  any 
boiler  used  in  generating  steam  or  heating  water  to  be 
used  in  any  distillery,  may  be  located  in  any  other  build- 
ing or  on  any  other  premises  to  be  connected  with  such 
still  or  boiling-tubs,  by  suitable  pipes  or  other  apparatus, 
or  the  steam  from  such  boiler  in  the  distillery  may  be 
conveyed  to  other  premises  to  be  used  for  manufacturing 
or  other  purposes.^* 

§  1299.  Under  act  July  20,  1868,  breaking  locks  of  cis- 
tern or  building.  Every  person  who  destroys,  breaks, 
injures,  or  tampers  with  any  lock  or  seal  which  may  be 
placed  on  any  cistern-room  or  building  by  the  duly  au- 
thorized officers  of  the  revenue,  or  opens  said  lock  or  seal, 
or  the  door  to  said  cistern-room  or  building,  or  in  any 
manner  gains  access  to  the  contents  therein,  in  the  ab- 
sence of  the  proper  officer,  shall  be  fined  not  less  than 
five  hundred  dollars  nor  more  than  five  thousand  dol- 
lars, and  imprisoned  not  less  than  one  year  nor  more  than 
three  years.^^ 

§  1300.  Under  act  July  20,  1868,  distiller  must  keep 
sign,  posted.  Every  person  engaged  in  distilling  or  recti- 
fying spirits,   and  every  wholesale  liquor-dealer,   shall 

25— Kev.  ^tat.  3266,  17  Stat.     26— Per  Stat.  3268,  15  Stat.  141. 
239. 


998  Criminal  Law 

place  and  keep  conspicuously  on  the  outside  of  the  place 
of  such  business  a  sign,  exhibiting  in  plain  and  legible  let- 
ters, not  less  than  three  inches  in  length,  painted  in  oil- 
colors  or  gilded,  and  of  a  proper  and  proiDortionate  width, 
the  name  or  fiim  or  the  distiller,  rectifier,  or  wholesale 
dealer,  with  the  words:  ''Registered  distillery,"  ''recti- 
fier of  spirits,"  or  "wholesale  liquor-dealer,"  as  the  case 
may  be.  Every  person  who  violates  the  foregoing  pro- 
vision by  negligence  or  refusal,  or  otherwise,  shall  pay 
a  penalty  of  five  hundred  dollars.  And  every  person, 
other  than  a  rectifier  or  wholesale  liquor-dealer  who  has 
paid  the  special  tax,  or  a  distiller  who  has  given  bond  as 
required  by  law,  who  puts  up  or  keeps  up  the  sign  re- 
quired b}'  this  section,  or  any  sign  indicating  that  he  may 
lawfully  carry  on  the  business  of  a  distiller,  rectifier,  or 
wholesale  liquor-dealer,  shall  forfeit  and  pay  one  thou- 
sand dollars,  and  shall  be  imprisoned  not  less  than  one 
month  nor  more  than  six  months.  And  every  person  who 
works  in  any  distillery,  rectifying  establishment,  or 
wholesale  liquor-store,  on  which  no  sign  is  i)lacod  and 
kept,  as  hereinbefore  provided;  and  every  person  who 
knowingly  receives  at,  carries  or  conveys  any  distilled 
spirits  to  or  from,  any  such  distillery,  rectifying  estab- 
lishment, warehouse,  or  store,  or  who  knowingly  carries 
and  delivers  any  grain,  molasses,  or  otliei-  inw  material 
to  any  distillery  on  whicli  such  sign  is  not  i)hu'ed  and 
kept,  shall  forfeit  all  horses,  carts,  drays,  wngoiis,  or  other 
vehicle  or  animal  used  in  carrying  or  coiivi'yiiig  such 
jjroperty  as  aforesaid,  and  shall  be  lined  iiol  less  liian  one 
liundred  dollars  nor  moi'e  than  one  lliousaiid  dollai's,  or 
he  inii)iisoiied  not  less  than  one  month  noi'  more  tiian  six 
months." 

§  1301.  No  distillation  can  be  made  except  in  regular 
distillery.  No  masli,  wort,  (ti-  wasii,  lit  i'oi-  dislillalioii  oi- 
i'oi"  tin-  |ico(liic1  ion  of  spirits  oi'  alcohol,  shall  he  made  oi" 

27  — Hcv.  Stat.  ;il27!»,   IT)  St:il.    \:V2. 


The  National  PiioiiiBiTiON  Act  999 

fermented  in  any  building  or  on  any  premises  other  than  a 
distillery  duly  authorized  according  to  law ;  and  no  mash, 
wort,  or  wash  so  made  and  fermented  shall  be  sold  or 
removed  from  any  distillery  before  being  distilled;  and 
no  person,  other  than  an  authorized  distiller,  shall,  by 
distillation,  or  by  any  other  process,  separate  the  alco- 
holic spirits  from  any  fermented  mash,  ^vort  or  wash;  and 
no  person  shall  use  spirits  or  alcohol  in  manufacturing 
vinegar  or  any  other  article,  or  in  any  process  of  manu- 
facture whatever,  unless  the  spirits  or  alcohol  so  used 
shall  have  been  produced  in  an  authorized  distillery  and 
the  tax  thereon  paid.  Eveiy  person  who  violates  any 
provision  of  this  section  shall  be  fined  for  each  offense 
not  less  than  five  hundred  dollars  nor  more  than  five  thou- 
sand, and  be  imprisoned  not  less  than  six  months  nor 
more  than  two  years.  Provided,  further.  That  nothing  in 
this  section  shall  be  construed  to  apply  to  fermented 
liquors  used  for  the  manufacture  of  vinegar  exclusively. 
But  no  worm,  gooseneck  pipe,  conductor,  or  contrivance 
of  any  description  whatsoever  whereby  vapor  might  in 
any  manner  be  conveyed  away  and  converted  into  dis- 
tilled spirits,  shall  be  used  or  employed  or  be  fastened 
to  or  connected  with  any  vaporizing  apparatus  used  for 
the  manufacture  of  vinegar;  nor  shall  any  worm  be  per- 
mitted on  or  near  the  premises  where  such  vaporizing 
process  is  carried  on.  Nor  shall  any  vinegar  factory,  for 
the  manufacture  of  vinegar  as  aforesaid,  be  permitted 
within  six  hundred  feet  of  any  distilleiy  or  rectifying 
house.  But  it  shall  be  lawful  for  manufacturers  of  vin- 
egar to  separate,  by  a  vaporizing  process,  the  alcoholic 
property  from  the  mash  produced  by  them,  and  condense 
the  same  by  introducing  it  into  the  water  or  other  liquid 
used  in  making  vinegar.  No  person,  however,  shall  re- 
move, or  cause  to  be  removed,  from  any  vinegar  factory 
or  place  where  vinegar  is  made,  any  vinegar  or  other 
fluid  or  material  containing  a  greater  proportion  than 
two  per  centum  of  proof  spirits.     Any  violation  of  this 


1000  Criminal  Law 

provision  sliall  incur  a  forfeiture  of  tlie  vinegar,  Huid,  or 
material  containing  such  proof  spirits,  and  shall  subject 
the  person  or  persons  guilty  of  removing  the  same  to  the 
punishment  provided  for  any  violation  of  this  section. 
And  all  the  provisions  of  sections  thirty-two  hundred  and 
seventy-six,  thirty-two  hundred  and  seventy-seven,  and 
thirty-two  hundred  and  seventy-eight  of  the  Revised 
Statutes  of  the  United  States  are  hereby  extended  and 
made  applicable  to  all  premises  whereon  vinegar  is  manu- 
factured, to  all  manufacturers  of  vinegar  and  their  work- 
men or  other  persons  employed  by  them  (these  sections 
refer  to  penalties  and  not  punishment ).^^ 

§  1302.  Unlawful  for  gauger  to  allow  others  to  perform 
his  duties.  Whenever  any  ganger  employs  any  ow^ner, 
agent,  or  superintendent  of  any  distillery  or  distillery 
warehouse,  or  any  person  in  the  service  of  such  owner, 
agent,  or  superintendent,  or  any  rectifier  or  Avholesale 
liquor-dealer,  or  any  person  in  the  service  of  such  recti- 
fier or  wholesale  liquor-dealer,  to  use  his  brands,  or  to 
discharge  any  of  the  duties  imposed  upon  him  by  hiw,  he 
shall,  for  each  offense  so  committed,  pay  a  line  not  ex- 
ceeding one  thousand  dollars,  in  the  discretion  of  the 
coui't.^® 

§  1303.  Under  act  July  20,  1868,  punishes  gauger  who 
makes  false  inspection.  Every  ganger  who  makes  any 
false  or  fraudiilfiil  inspection,  gauging,  or  proof  shall 
pay  a  jx-nalty  ol'  one  llions.iiid  dollars,  and  be  fined  not 
less  tlian  fnc  liniidrrd  dollni-s  nor  more  llian  lix'c  llion- 
sand  doll.'irs,  and  inijji'isoncd  not  less  tli;iii  llircc  inonliis 
nor  in(»ic  tli;iii  tlii'ce  years. ^° 

28— Rev.    8tat.    3282,    Act    March  .10— Rpv.  Stat.  3292,  15  Stat.  147. 

],  1879,  20  Stat.  .33.1. 

29— Act  July  13,  18G6,  Rev.  Stat. 
3290,  Dec.   24,   1872,    17   Stat.   401. 


The  National  Prohibition  Act  1001 

§  1304.  Act  July  20,  1868,  punishment  for  removing- 
spirits  upon  which  tax  had  not  been  paid.  Whenever 
any  person  removes,  or  aids  or  abets  in  the  removal  of 
any  distilled  spirits  on  which  the  tax  has  not  been  paid, 
to  a  place  other  than  the  distillery  warehouse  provided 
by  law,  or  conceals  or  aids  in  the  concealment  of  any 
spirits  so  removed,  or  removes,  or  aids  or  abets  in  the 
removal  of  any  distilled  spirits  from  any  distillery  ware- 
house, or  other  warehouse  for  distilled  spirits  authorized 
by  law,  in  any  manner  other  than  is  provided  by  law,  or 
conceals  or  aids  in  the  concealment  of  any  spirits  so  re- 
moved he  shall  be  liable  to  a  penalty  of  double  the  tax 
imposed  on  such  distilled  spirits  so  removed  or  concealed, 
and  shall  be  fined  not  less  than  two  hundred  dollars  nor 
more  than  five  thousand  dollars,  and  imprisonment  not 
less  than  three  months  nor  more  than  three  years.^^ 

§  1305.  Under  act  August  27,  1894,  for  violation  of 
act — Penalty.  That  in  case  any  distilled  spirits  removed 
from  a  distillery  warehouse  for  deposit  in  a  general 
bonded  warehouse  shall  fail  to  be  deposited  in  such  gen- 
eral bonded  warehouse  within  ten  days  after  such  re- 
moval, or  within  the  time  specified  in  any  bond  given  on 
such  removal,  or  if  any  distilled  spirits  deposited  in  any 
general  bonded  warehouse  shall  be  taken  therefrom,  for 
export  or  otherwise,  without  full  compliance  with  the 
provisions  of  this  act,  and  with  the  requirements  of  any 
regulations  made  thereunder,  and  with  the  tenus  of  any 
bond  given  on  such  removal,  or  if  any  distilled  spirits 
which  have  been  deposited  in  a  general  bonded  ware- 
house shall  be  found  elsewhere,  not  having  been  removed 
therefrom  according  to  law,  any  person  who  shall  be 
guilty  of  such  failure,  or  any  person  who  shall  in  any 
manner  violate  any  provision  of  the  next  preceding  eleven 
sections  of  this  act,  shall  be  subject,  on  conviction,  to  a 
fine  of  not  less  than  one  hnndred  dollars  nor  more  than 

31— Eev.  Stat.  3296,  15  Stat.  140. 


1002  Criminal  Law 

five  thousand  dollars,  or  to  imprisonment  for  not  less 
than  three  months  nor  more  than  three  years  for  eveiy 
such  failure  or  violation ;  and  the  spirits  as  to  which  such 
failure  or  violation,  or  unlawful  removal  shall  take  place 
shall  be  forfeited  to  the  United  States.^^ 

§  1306.  Under  act  March  3,  1877,  grape  brandy  re- 
moved from  distillery  fcr  deposit  in  special  warehouse 
limited  to  ten  days — Failure — Penalty.  That  in  case 
any  grape  brandy  removed  from  the  distillery  for  deposit 
in  a  special  warehouse,  shall  fail  to  be  deposited  in  such 
warehouse  within  ten  days  thereafter,  or  within  the  time 
specified  in  any  bond  given  on  such  removal,  or  if  any 
grape  brandy  deposited  in  any  special  warehouse  shall 
be  taken  therefrom  for  deposit  in  another  warehouse,  or 
for  export,  or  othenvise,  without  full  compliance  with 
the  provisions  of  this  act,  and  with  the  requirements  of 
any  regulations  made  thereunder,  and  with  the  terms  of 
any  bond  given  on  such  removal,  then  any  person  who 
shall  be  guilty  of  such  failure,  and  any  person  who  shall 
in  any  manner  violate  any  provisions  of  this  act,  or  of 
the  regulations  made  in  pursuance  thereof,  shall  be  sub- 
ject, on  conviction,  to  a  fine  of  not  less  than  one  hundred 
dollars  nor  more  than  five  tliousand  dollars,  and  to  im- 
prisonment for  not  less  tlian  three  months  nor  more 
than  three  years  for  every  such  failure  or  violation;  and 
the  spirits  as  to  which  such  failure  or  violation  shall  take 
place  shall  be  forfeited  to  the  Ignited  States.^^ 

§  1307.  Act  March  3,  1891,  manufacturer  of  sorghum 
sugar  may  use  spirits  for — Punishment  for  violation. 
Any  niamiractui'cr  oT  sngar  iVom  sorgliuiii  may  remove 
from  distillery  warehouses  to  factories  used  solely  for 
tile  manufacture  of  such  sugar  from  sorghum  distilled 
spirits  in  ])ond  free  of  tax,  to  be  used  solely  in  such 

32— Act  August  27,  1894,  28  Stat.  .13— Sit.    11,   Act   March   3,   1877, 

566.  1!»   Stilt.   3!).'5. 


The  National  Prohibition  Act  1003 

manufacture  of  sugar  from  sorghum;  that  all  distilled 
spirits  removed  as  herein  authorized  shall  be  of  an  alco- 
holic strength  of  not  less  than  one  hundred  and  sixty  per 
centum  proof,  and  may  be  removed,  stored,  and  used  in 
the  manufacture  of  sugar  from  sorghum,  and  when  so 
used  may  be  recovered  by  redistillation  in  the  sugar  fac- 
tory of  such  sugar  manufacturer  under  such  bonds,  iniles, 
and  regulations  for  the  protection  of  the  revenue  and  the 
accomplishment  of  the  purposes  herein  expressed  as  the 
commissioner  of  internal  revenue  with  the  approval  of 
the  secretaiy  of  the  treasuiy  may  prescribe.  Any  per- 
son who  removes  or  uses  distilled  spirits  in  violation  of 
this  provision,  as  the  regulations  issued  pursuant  thereof, 
shall,  on  conviction  thereof,  be  fined  not  more  than  one 
thousand  dollars  nor  more  than  five  thousand  dollars  for 
each  offense,  and  the  spirits  and  the  premises  on  which 
such  spirits  are  used  shall  be  forfeited  to  the  United 
States.^* 

§  1308.  Act  July  20,  1868,  storekeeper  removing-  cask 
or  package  from  bond  without  permit  of  collector.  When- 
ever any  storekeeper  or  other  person  in  the  employment 
of  the  United  States,  having  charge  of  a  bonded  ware- 
house, removes  or  allows  to  be  removed  therefrom  any 
cask  or  other  package,  without  an  order  or  permit  of  the 
collector,  or  which  has  not  been  marked  or  stamped  in 
the  manner  required  by  law;  or  removes  or  allows  to  be 
removed  any  part  of  the  contents  of  any  cask  or  package 
deposited  therein,  he  shall  be  immediately  dismissed 
from  office  or  employment,  and  be  imprisoned  not  less 
than  three  months  nor  more  than  two  years.^^ 

§  1309.  Violation  of  act  March  3,  1897,  forging,  alter- 
ing or  counterfeiting  stamp — Penalty.  Every  person 
who,  with  intent  to  defraud,  falsely  makes,  forges,  alters, 

34—26  Stat.   1050,  Act  March  3,  35—15  Stat.  147,  Eev.  Stat.  3300, 

1891.  Act  July  20,  1868. 


1004  Criminal  Law 

or  counterfeits  any  stamp  made  or  used  under  any  pro- 
visions of  this  act,  or  who  uses,  sells,  or  has  in  his  pos- 
session any  such  forged,  altered,  or  counterfeited  stamp, 
or  any  plate  or  die  used  or  which  may  be  used  in  the 
manufacture  thereof,  or  who  shall  make,  use,  sell,  or 
have  in  his  possession  any  paper  in  imitation  of  the 
paper  used  in  the  manufacture  of  any  stamp  required 
by  this  act,  shall  on  conviction  be  punished  by  a  fine 
not  exceeding  one  thousand  dollars  and  by  imprisonment 
at  hard  labor  not  exceeding  j&ve  years. 

Nothing  in  this  act  shall  be  construed  to  exempt  spirits 
bottled  under  the  provisions  of  this  act  from  the  opera- 
tion of  chapter  seven  hundred  and  twenty-eight  of  the 
public  laws  of  the  fifty-first  congress,  approved  August 
eighth,  eighteen  hundred  and  ninety.'® 

§  1310.  Act  June  6,  1872,  false  entries  in  distiller's 
books — Penalty.  Whenever  any  false  entry  is  made  in, 
or  any  entry  required  to  be  made  is  omitted  from  either 
of  the  said  books  mentioned  in  the  two  preceding  sec- 
tions, with  intent  to  defraud  or  to  conceal  from  the  reve- 
nue officers  any  fact  or  particular  required  to  be  stated 
and  entered  in  cither  of  said  books,  or  to  mislead  in  ref- 
erence thereto;  or  any  distiller  as  aforesaid  omits  or 
refuses  to  provide  either  of  said  books,  or  cancels,  ob- 
literates, or  destroys  any  part  of  either  of  such  books, 
or  any  entry  therein,  with  intent  to  defraud,  or  permits 
tlie  same  to  be  done,  or  such  books,  or  either  of  them,  are 
not  produced  when  required  by  any  revenue  officer,  the 
distilloiy,  distilling-apparalns,  and  llio  lot  or  tract  of 
land  on  wliich  it  stands,  and  all  personal  property  on  said 
premises  used  in  the  business  there  carried  on,  shall  be 
forfeited  to  the  United  States.  And  every  person  who 
makes  such  false  entr^'-,  or  omits  to  make  any  entiy  liore- 
iiilx'foro  rofinirod  to  ])0  made,  with  the  intent  aforesaid, 

.16—20    Stat.    028.    Hcch.    7    Jind    H, 
Art    Mnnli   .'!.   ISft?. 


The  National  Prohibition  Act  1005 

or  who  causes  or  procures  the  same  to  be  done,  or  fraud- 
ulently cancels,  obliterates,  or  destroys  any  part  of  said 
books,  or  any  entry  therein,  or  wilfully  fails  to  produce 
such  books,  or  either  of  them,  shall  be  lined  not  less  than 
five  hundred  dollars,  nor  more  than  five  thousand  dollars, 
and  imprisoned  not  less  than  six  months,  nor  more  than 
two  years.^' 

§  1310a.  Book  required  in  Sec.  1310.  That  every  per- 
son who  makes  or  distills,  or  owns  any  still,  boiler  or 
other  vessel,  used  for  the  purpose  of  distilling  spirits, 
or  who  has  such  still,  boiler  or  other  vessel  so  used  under 
his  superintendence,  either  as  agent  or  owner,  or  who 
uses  any  such  still,  boiler  or  other  vessel,  shall  from 
day  to  day  make  or  cause  to  be  made,  in  a  book  or  books, 
to  be  kept  by  him  in  such  fonn  as  the  Commissioner  of 
Internal  Revenue  may  prescribe,  a  true  and  exact  entry 
of  the  kind  of  materials,  and  the  quantity  of  pounds, 
bushels,  or  gallons  purchased  by  him  for  the  production 
of  spirits,  from  whom  and  when  purchased,  and  by  what 
conveyance  delivered  at  said  distillery,  the  amount  paid 
therefor,  the  kind  and  quantity  of  fuel  purchased  for  use 
in  the  distillery,  and  from  whom  purchased,  the  amount 
paid  for  ice  or  water  for  use  in  the  distilleiy,  the  repairs 
placed  on  said  distillery  of  distilling  apparatus,  the  cost 
thereof,  and  by  whom  and  when  made,  and  of  the  name 
and  residence  of  each  person  employed  in  or  about  the 
distillery,  and  in  what  capacity  employed.  And  in  an- 
other book  he  shall  make  like  entry  of  the  quantity  of 
grains  or  other  material  used  for  the  production  of 
spirits,  the  time  of  day  when  any  yeast  or  other  com- 
position is  put  into  any  mash  or  beer  for  the  purpose  of 
exciting  fermentation,  the  quantity  of  mash  in  each  tub, 
designating  the  same  by  the  number  of  the  tub,  the  num- 
ber of  dry  inches,  that  is  to  say,  the  number  of  inches 
between  the  top  of  each  tub  and  the  surface  of  the  mash 

37— Eev.  Stat.  3305,  17  Stat.  240. 


1006  Criminal  Law 

or  beer  therein  at  the  time  yeasting,  the  gravity  and  the 
temperature  of  the  beer  at  the  time  yeasting,  and  on 
every  day  thereafter  its  quantity,  gravity  and  tempera- 
ture at  the  hour  of  12  meridian;  also,  of  the  time  when  any 
fermenting  tub  is  emptied  of  ripe  mash  or  beer,  the  num- 
ber of  gallons  of  spirits  distilled,  the  number  of  gallons 
placed  in  the  warehouse,  and  the  proof  thereof  the  num- 
ber of  gallons  sold  or  removed,  with  the  proof,  and  the 
name,  place  of  business  and  residence  of  the  person  to 
whom  sold.    Rev.  Statute  3303,  15  Stat.  132. 

§  1311.  Rectifiers  intending  to  defraud  the  United 
States  of  tax — Penalty.  That  on  or  before  the  tenth 
day  of  each  month  every  person  engaged  in  rectifying 
or  compounding  distilled  spirits  shall  make,  in  such  form 
as  may  be  prescribed  by  the  commissioner  of  internal 
revenue,  a  return  to  the  collector  of  the  district,  showing 
the  quantity  of  spirits  received  for  rectification,  and 
from  whom  received,  the  quantity  dumped  for  rectifica- 
tion, the  quantity  rectified,  the  quantity  removed  after 
rectification  during  the  preceding  month,  and  giving  such 
other  information  as  may  be  required  by  the  commis- 
sioner of  internal  revenue,  such  return  to  be  made  in 
duplicate  and  sworn  to  by  the  rectifier;  and  the  collector 
shall  foi-ward  one  of  such  returns  to  the  commissioner 
of  internal  revenue.  Eveiy  person  who  engages  in,  or 
carries  on,  the  business  of  a  rectifier  with  intent  to  de- 
fraud tlie  United  States  of  the  tax  on  spirits  rectified 
by  him,  or  any  part  thereof,  or  with  intent  to  aid,  abet, 
or  assist  any  person  or  persons  in  defrauding  the  United 
States  of  the  tax  on  any  distilled  spirits,  or  who  shall 
purcliase  or  receive  or  rectify  any  distilled  spirits  which 
have  been  removed  lioni  a  distillery  to  a  i)h»ce  other 
than  tlie  distilleiy-warcliouse  jn-ovided  ])y  law,  knowing 
or  liaving  reasonal)h'  gi-ounds  to  ])elieve  tlint  the  tax  on 
said  sf)irits,  recjuii'cd  ))y  hiw,  lias  not  b(^en  i);ii(i,  shall,  for 
every  such  offense,  ix'  lined  not   less  than  one  thousand 


The  National  pRorTiBixioN  Act  1007 

dollars  nor  more  than  five  thousand  dollars,  and  impris- 
oned not  less  than  six  months  nor  more  than  two  years.^^ 

§  1312.  Rectifier  required  to  keep  book — Penalty  for 
failure.  Every  rectifier  and  wholesale  liquor-dealer  shall 
provide  a  book,  to  be  prepared  and  kept  in  such  form  as 
may  be  prescribed  by  the  commissioner  of  internal  reve- 
nue, and  shall,  on  the  same  day  on  which  he  receives  any 
foreign  or  domestic  spirits,  and  before  he  draws  off  any 
part  thereof,  or  adds  water  or  anything  thereto,  or  in  any 
respect  alters  the  same,  enter  in  such  book,  and  in  the 
proper  columns  respectively  prepared  for  the  purpose, 
the  date  when,  the  name  of  the  person  or  firm  from 
whom,  and  the  place  whence  the  spirits  were  received, 
by  whom  distilled,  rectified,  or  compounded,  and  when 
and  by  whom  inspected,  and,  if  in  the  original  package, 
the  serial  number  of  each  package,  the  number  of  wine- 
gallons  and  proof-gallons,  the  kind  of  spirit,  and  the 
number  and  kind  of  adhesive  stamps  thereon.  And  every 
such  rectifier  and  wholesale  dealer  shall,  at  the  time  of 
sending  out  of  his  stock  or  possession  any  spirits,  and 
before  the  same  are  removed  from  his  premises,  enter  in 
like  manner  in  the  said  book  the  day  w^hen  and  the  name 
and  place  of  business  of  the  person  or  firai  to  whom  such 
spirits  are  to  be  sent,  the  quantity  and  kind  or  quality  of 
such  spirits,  the  number  of  gallons  and  fractions  of  a  gal- 
lon at  proof,  and,  if  in  the  original  packages  in  which 
they  were  received,  the  name  of  the  distiller  and  the 
serial  number  of  the  package.  Every  such  book  shall  be 
at  all  times  kept  in  some  public  or  open  place  on  the 
premises  of  such  rectifier  or  wholesale  dealer  for  inspec- 
tion, and  any  revenue  ofiicer  may  examine  it  and  take 
an  abstract  therefrom;  and  when  it  has  been  filled  up  as 
aforesaid,  it  shall  be  preserved  by  such  rectifier  or  whole- 
sale liquor-dealer  for  a  period  not  less  than  two  years; 

38— Act  March   1,   1879,   20   Stat. 
339. 


1008  Ceiminal  Law 

and  during  such  time  it  shall  be  produced  by  him  to 
every  revenue  officer  demanding  it.  And  whenever  any 
rectifier  or  wholesale  liquor-dealer  refuses  or  neglects  to 
provide  such  book,  or  to  make  entries  therein  as  afore- 
said, or  cancels,  alters,  obliterates,  or  destroys  any  part 
of  such  book,  or  any  entiy  therein,  or  makes  any  false 
entry  therein,  or  hinders  or  obstructs  any  revenue  officer 
from  examining  such  book,  or  making  any  entry  therein, 
or  taking  any  abstract  therefrom;  or  whenever  such 
book  is  not  preserved  or  is  not  produced  by  any  rectifier 
or  wholesale  liquor-dealer  as  hereinbefore  directed,  he 
shall  pay  a  penalty  of  one  hundred  dollars,  and  shall  on 
conviction  be  fined  not  less  than  one  hundred  dollars  nor 
more  than  five  thousand  dollars,  and  imprisoned  not 
less  than  three  months  nor  more  than  three  years.  That 
eveiy  person  required  to  keep  the  books  prescribed  by 
this  section  shall,  on  or  before  the  tenth  day  of  each 
month,  make  a  full  and  correct  transcript  of  all  entries 
made  in  such  book  during  the  month  preceding,  and, 
after  verifying  the  same  by  oath,  shall  forward  the  same 
to  the  collector  of  the  district  in  which  he  resides.  Any 
failure  by  reason  of  refusal  or  neglect  to  make  said 
transcripts  sliall  subject  the  person  so  offending  to  a  fine 
of  one  hundred  dollars  for  each  neglect  or  refusal. ^^ 

§  1313.  Unlawful  for  purchaser  or  rectifier  to  purchase 
or  receive  greater  quantity  than  20  gallons,  it  shall  not 
be  lawful  for  any  rectifier  of  distilled  si)irits,  or  whole- 
sale or  icl.iil  li(iii()i--dealei",  to  purchase  or  receive  any 
distilled  spii-its  in  (pnintities  greater  than  twenty  gallons 
fi'oin  any  jjcrson  other  than  an  authorized  reetilier  of 
distilled  spirits,  distiller,  or  wliolcsnlc  Tniuor-dealer. 
Every  pei'son  who  \i<.In1('s  this  section  sliall  forfeit  and 
pay  one  thousand  dollnis:     Provided,  That  this  jirovision 

39— l{cv.     Stat.    3:518,     Miirch     1, 
1879,  2n  Htat.  339. 


The  National  Prohibition  Act  1009 

shall  not  be  held  to  apply  to  judicial  sales,  or  to  sales  at 
public  auction  made  by  an  auctioneer.*" 

§  1314.  Rectifiers  who  fail  to  comply  with  the  laws — 
Punishment.  Every  package  of  distilled  spirits  contain- 
ing five  wine  gallons  or  more,  filled  on  the  premises  of  a 
wholesale  liquor-dealer,  who  has  paid  the  special  tax 
required  by  law,  shall  be  marked,  branded,  and  stamped 
by  such  wholesale  liquor-dealer  in  such  manner  and  un- 
der such  rules  and  regulations  as  the  commissioner  of 
internal  revenue,  with  the  approval  of  the  secretary  of 
the  treasury,  and  may  prescribe;  and  on  or  before  the 
tenth  day  of  each  month  every  wholesale  liquor-dealer 
shall  make  return,  under  oath,  to  the  collector  of  internal 
revenue  for  the  district  of  the  various  kinds  and  quanti- 
ties of  each  kind  and  of  the  total  quantities  of  distilled 
spirits  received  on  his  premises  and  of  the  various  kinds 
and  quantities  of  each  kind  and  of  the  total  quantity  of 
distilled  spirits  sent  out  from  his  stock  or  possession  dur- 
ing the  preceding  month,  and  of  the  quantity  of  each 
kind  and  the  total  quantity  remaining  on  hand  at  the  end 
of  the  month ;  and  such  return  shall  be  made  in  such  form 
and  contain  such  other  particulars  as  the  commissioner 
of  internal  revenue,  wdth  the  approval  of  the  secretary 
of  the  treasury,  may  prescribe.  And  every  rectifier  or 
wholesale  liquor-dealer  who  refuses  or  willfully  neglects 
to  comply  with  the  requirements  of  this  act  as  to  giving 
the  said  notice  or  the  said  return,  and  as  to  marking, 
branding,  and  stamping,  in  accordance  with  the  law  and 
the  regulations  made  in  pursuance  thereof,  the  packages 
of  spirits  filled  on  his  premises  as  aforesaid,  shall,  for 
each  such  offense,  be  fined  not  less  than  two  hundred  dol- 
lars nor  more  than  one  thousand  dollars." 

40— July  14,  1870,  16  Stat.  256,     41— July  16,  1892,  27  Stat.  200, 
Eev.  Stat.  3319.  Eev.  Stat.  3323. 

C.  L.— 64 


1010  Criminal  Law 

§  1315.  Under  Act  July  20,  1868,  failure  to  deface 
stamp — Who  draws  off  spirits — Punishment.  Every 
person  who  empties  or  draws  off,  or  causes  to  be 
emptied  or  drawn  off,  any  distilled  spirts  from  a  cask 
or  package  bearing  any  mark,  brand,  or  stamp  re- 
quired by  law,  shall,  at  the  time  of  emptying  such  cask 
or  package,  efface  and  obliterate  said  mark,  stamp,  or 
brand.  Every  such  cask  or  package  from  which  said 
mark,  brand,  or  stamp  is  not  eft'aced  and  obliterated  as 
herein  required,  shall  be  forfeited  to  the  United  States, 
and  may  be  seized  by  any  officer  of  internal  revenue 
wherever  found.  And  every  railroad  company  or  other 
transportation  conq3any,  or  person  who  receives  or  trans- 
ports, or  has  in  possession  with  intent  to  transport,  or 
Avith  intent  to  cause  or  procure  to  be  transported,  any 
such  empty  cask  or  package,  or  any  part  thereof,  hav- 
ing thereon  any  brand,  mark,  or  stamp,  required  by  law 
to  be  placed  on  any  cask  or  package  containing  distilled 
spirits,  shall  forfeit  tliree  hundred  dollars  for  each  such 
cask  or  package,  or  any  part  thereof,  so  received  or 
transported,  or  had  in  possession  with  the  intent  afore- 
said; and  every  boat,  railroad-car,  cart,  dray,  wagon, 
or  other  vehicle,  and  all  horses  and  other  animals  used 
in  carrying  or  trans] )()rting  the  same,  shall  be  for- 
feited to  the  United  States.  Eveiy  person  who  fails  to 
efface  and  obliterate  said  mark,  stamp,  or  brand,  at  the 
time  of  emptying  sucii  cask  or  package,  or  who  receives 
any  such  cask  or  ]iackage,  or  any  part  tiiereof,  with  the 
intent  aforesaid,  oi'  who  li'ansports  the  same,  oi"  know- 
ingly aids  or  assists  therein,  or  who  removes  any  stamp 
provided  l)y  law  from  any  cask  or  package  containing, 
or  which  had  contained,  distilled  si)irits,  without  de- 
facing and  destroying  the  same  at  the  time  of  such  re- 
moval, or  who  aids  or  assists  thei'ein,  or  who  has  in 
Ids  possession  any  such  stamj)  so  rejnoved  as  aforesaid, 
or  has  in  his  jxjsscssioji  any  canceled  stamp,  or  any  slamjt 
which    has    hecn    used,   or   which    |iiir|torls    to    ha\'e    been 


The  National  Prohibition  Act  1011 

used,  upon  any  cask  or  package  of  distilled  spirits,  shall 
be  deemed  guilty  of  a  felony,  and  shall  l)e  fined  not  less 
than  five  hundred  dollars  nor  more  than  ten  thousand 
dollars,  and  imprisoned  not  less  than  one  year  nor  more 
than  five  years. 

§  1316.  Affixing  spurious  stamp  to  cask — Penalty. 
That  if  any  person  shall  affix,  or  cause  to  be  affixed,  to 
or  upon  any  cask  or  package  containing,  or  intended  to 
contain,  distilled  spirits,  any  imitation  stamp,  or  other 
engraved,  printed,  stamped,  or  photographed  label,  de- 
vice, or  token,  whether  the  same  be  designed  as  a  trade 
mark,  caution  notice,  caution,  or  otherwise,  and  which 
shall  be  in  the  similitude  or  likeness  of,  or  shall  have 
the  resemblance  or  general  appearance  of,  any  inter- 
nal revenue  stamp  required  by  law  to  be  affixed  to  or 
upon  any  cask  or  package  containing  distilled  spirits, 
he  shall,  for  each  offense,  be  liable  to  a  penalty  of  one 
hundred  dollars,  and,  on  conviction,  shall  be  fined  not 
more  than  one  thousand  dollars,  and  imprisoned  not  more 
than  three  years,  and  the  cask  or  package  with  its  con- 
tents shall  be  forfeited  to  the  United  States.^^ 

§  1317.  Transporting  intoxicating  liquors  in  interstate 
commerce.  That  no  letter,  postal  card,  circular,  news- 
paper, pamphlet,  or  publication  of  any  kind  containing 
any  advertisement  of  spirituous,  vinous,  malted,  fer- 
mented, or  other  intoxicating  liquors  of  any  kind,  or 
containing  a  solicitation  of  an  order  or  orders  for  said 
liquors,  or  any  of  them,  shall  be  deposited  in  or  carried 
by  the  mails  of  the  United  States,  or  be  delivered  by 
any  postmaster  or  letter  carrier,  when  addressed,  or 
directed  to  any  person,  firm,  corporation,  or  association, 
or  other  addressee,  at  any  place  or  point  in  any  State 
or  Territory  of  the  United  States  at  which  it  is  by  the 

42— Act    Feb.    8,    1875,    18    Stat. 
311. 


1012  Criminal  Law 

law  in  force  in  the  State  or  Territory  at  that  time  un- 
lawful to  advertise  or  solicit  orders  for  such  liquors, 
or  any  of  them,  respectively. 

If  the  publisher  of  any  newspaper  or  other  publica- 
tion or  the  agent  of  such  publisher,  or  if  any  dealer  in 
such  liquors  or  his  agent,  shall  knowingly  deposit  or 
cause  to  be  deposited,  or  shall  knowingly  send  or  cause 
to  be  sent,  anything  to  be  conveyed  or  delivered  by 
mail  in  violation  of  the  provisions  of  this  section,  or 
shall  knowingly  deliver  or  cause  to  be  delivered  by  mail 
anything  herein  forbidden  to  be  carried  by  mail,  shall 
be  fined  not  more  than  one  thousand  dollars  or  impris- 
oned not  more  than  six  months,  or  both;  and  for  any  sub- 
sequent offense  shall  be  imprisoned  not  more  than  one 
year.  Any  person  violating  any  provision  of  this  sec- 
tion, may  be  tried  and  punished,  either  in  the  district 
in  which  the  unlawful  matter  or  publication  was  mailed 
or  to  which  it  was  carried  by  mail  for  delivery,  accord- 
ing to  direction  thereon,  or  in  which  it  was  caused  to 
be  delivered  by  mail  to  the  person  to  whom  it  was  ad- 
dressed. Whoever  shall  order,  purchase,  or  cause  in- 
toxicating liquors  to  be  transported  in  interstate  com- 
merce, except  for  scientific,  sacramental,  medicinal,  and 
mechanical  purposes,  into  any  State  or  Tei'ritory  the 
laws  of  wliicii  State  or  Territory  prohibit  the  manufac- 
ture oi'  sale  therein  of  intoxicating  Tkiuoi's  I'or  bever- 
age iHii'poses  shall  be  i)unished  as  aforesaid  (Sees.  1109, 
1110):  Provided,  That  nothing  herein  shall  authorize 
the  shipment  of  li(iu<)r  into  jiny  State  contrary  to  the 
laws  of  such  Slate:  Provided,  further.  That  the  Post- 
master-dcnci'al  is  hereby  authoiMZ(Ml  and  dii'ected  to  make 
public  from  time  to  time  in  suitable  bulletins  or  public 
notices  tiic  names  of  Slates  in  which  it  is  unlawful  to 
advertise  or  solicit   oi-(ici"s  for  such    licpuu-s." 

43— 8cc.    5,    M.-irfli    ?,,    1017,    39       1202.     TIiih   last   net   i>ut   Sec.   5   in 
Htnt.   1069,  Mnrcli    1,   1917,  .'JO  Hint.       ((reel    .Inly    1,    1917. 


The  National  Prohibition  Act  1013 

§  1318.  Sale  of  intoxicating  liquors  in  Indian  country 
— Penalties.  That  no  ardent  spirits,  ale,  beer,  wine,  or 
intoxicating  liquor  or  liquors  of  whatever  kind  shall  be 
introduced,  under  any  pretense,  into  the  Indian  country. 
Every  person  who  sells,  exchanges,  gives,  barters,  or 
disposes  of  any  ardent  spirits,  ale,  beer,  wine,  or  intoxi- 
cating liquors  of  any  kind  to  any  Indian  under  charge 
of  any  Indian  superintendent  or  agent,  or  introduces  or 
attempts  to  introduce  any  ardent  spirits,  ale,  wine,  beer, 
or  intoxicating  liquor  of  any  kind  into  the  Indian  coun- 
try, shall  be  punished  by  imprisonment  for  not  more 
than  two  years,  and  by  fine  of  not  more  than  three  hun- 
dred dollars  for  each  offense.  But  it  shall  be  a  suffi- 
cient defense  to  any  charge  of  introducing  or  attempt- 
ing to  introduce  ardent  spirits,  ale,  beer,  wine,  or  in- 
toxicating liquors  into  the  Indian  country  that  the  acts 
charged  were  done  under  authority  in  writing  from  the 
War  Department,  or  any  officer  duly  authorized  there- 
unto by  the  War  Department. 

No  part  of  section  2139  or  of  section  2150  of  the  Re- 
vised Statutes  shall  be  a  bar  to  the  prosecution  of  any 
officer,  soldier,  sutler  or  storekeeper,  attache,  or  em- 
ployee of  the  Army  of  the  United  States  who  shall  bar- 
ter, donate,  or  furnish  in  any  manner  whatsoever  liquors, 
beer,  or  any  intoxicating  beverage  whatsoever  to  any 
Indian. 

All  complaints  for  arrest  of  any  person  or  persons 
made  for  violation  of  any  of  the  provisions  of  this  act 
shall  be  made  in  the  county  where  the  offense  shall 
have  been  committed,  or  if  committed  upon  or  within 
any  reservation  not  included  in  any  county,  then  in  any 
county  adjoining  such  reservation;  but  in  all  cases  such 
arrests  shall  be  made  before  any  United  States  court 
commissioner  residing  in  such  adjoining  county,  or  be- 
fore any  magistrate  or  judicial  officer  authorized  by  the 
laws  of  the  State  in  which  such  resei'vation  is  located 
to  issue  warrants  for  the  arrest  and  examination  of  of- 


1014  Criminal  Law 

fenders  by  section  1014  of  the  Revised  Statutes  of  the 
United  States  having  jurisdiction  of  the  offense. 

Any  person  who  shall  sell,  give  away,  dispose  of,  ex- 
change, or  barter  any  malt,  spirituous,  or  vinous  liquor 
including  beer,  ale,  and  wine,  or  any  ardent  or  other 
intoxicating  liquor  of  any  kind  whatsoever,  or  any  es- 
sence, extract,  bitters,  preparation,  compound,  composi- 
tion, or  any  article  whatsoever,  under  any  name,  label, 
or  brand,  which  produces  intoxication,  to  any  Indian 
to  whom  allotment  of  land  has  been  made  while  the 
title  to  the  same  shall  be  held  in  trust  by  the  govern- 
ment, or  to  any  Indian  a  ward  of  the  government  under 
charge  of  any  Indian  superintendent  or  agent,  or  any 
Indian,  including  mixed  bloods,  over  whom  the  govern- 
ment, through  its  departments,  exercises  guardianship, 
and  any  person  who  shall  introduce  or  attempt  to  in- 
troduce any  malt,  spirituous,  or  vinous  liquor,  includ- 
ing beer,  ale,  and  wine,  or  any  ardent  or  intoxicating 
liquor  of  any  kind  whatsoever  into  the  Indian  country, 
which  term  sliall  include  any  Indian  allotment  while  the 
title  to  the  same  shall  be  held  in  trust  by  the  govern- 
ment, or  while  the  same  shall  remain  inalienable  by 
the  allottee  without  the  consent  of  the  United  States, 
sliall  ])e  punished  by  inqirisonment  for  not  less  than 
sixty  days,  {Uid  a  fine  of  not  less  tlian  one  linndred  dol- 
lars for  the  first  offense  and  not  less  than  two  huiuh-ed 
df)llai-s  for  each  offense  thereafter:  Provided,  however, 
Tiiat  tlie  i)ers()n  convicted  shall  be  connnitted  until  fine 
and  costs  are  paid.  P>ut  it  sliall  be  a  sunicieiit  defense 
to  any  charge  of  inti-oduciiig  or  attem])tiiig  to  introduce 
ardent  spirits,  ale,  lieei-,  wine,  or  intoxicating  liquors 
into  the  Indian  country  that  the  acts  charged  were  done 
under  antliofity,  in  writing,  from  tlic  War  Department 
or  any  oHiccr  duly  antliori/cd  tlicrcunto  by  tln^  War 
Dcpait  jncnt. 

Any  j)('ison,  wlictlici'  ;iii  Indian  of  ol  licrwisc,  who 
sliall,    in    >ai(l    Triritorx-,    mannfact hit,    sell,   gix'c   away, 


The  National  Prohibition  Act  1015 

or  in  any  manner,  or  by  any  means  furnish  to  anyone, 
either  for  liimself  or  another,  any  vinous,  malt,  or  fer- 
mented liquors,  or  any  other  intoxicating  drinks  of  any 
kind  whatsoever,  whether  medicated  or  not,  or  who  shall 
carry,  or  in  any  manner  have  carried,  into  said  Terri- 
tory any  such  liquors  or  drinks,  or  who  shall  be  inter- 
ested in  such  manufacture,  sale,  giving  away,  furnish- 
ing to  anyone,  or  carrying  into  said  Territory  any  of 
such  liquors  or  drinks,  shall,  upon  conviction  thereof,  be 
punished  by  fine  not  exceeding  five  hundred  dollars  and 
by  imprisonment  for  not  less  than  one  month  nor  more 
than  five  years. 

On  and  after  September  1,  1918,  possession  by  a  per- 
son of  intoxicating  liquors  in  the  Indian  country  where 
the  introduction  is  or  was  prohibited  by  treaty  or  Fed- 
eral statute  shall  be  an  offense  and  punished  in  accord- 
ance with  the  provisions  of  the  Acts  of  July  23,  1892, 
and  January  13,  1897. 

Hereafter  it  shall  not  be  unlawful  to  introduce  and 
use  wines  solely  for  sacramental  purposes,  under  church 
authority,  at  any  place  within  the  Indian  country  or 
any  Indian  reservation,  including  the  Pueblo  Reserv^a- 
tions  in  New  Mexico.** 

§  1319.  Setting  still  for  manufacture  of  liquor  in  In- 
dian country — Penalty,  $1,000.  Every  person  who  shall, 
within  the  Indian  country,  set  up  or  continue  any  distil- 
ler}^ for  manufacturing  ardent  spirits,  shall  be  liable  to 
a  penalty  of  one  thousand  dollars;  and  the  superin- 
tendent of  Indian  affairs,  Indian  agent,  or  subagent, 
within  the  limits  of  whose  agency  any  distillery  of  ardent 
spirits  is  set  up  or  continued,  shall  forthwith  destroy 
and  break  up  the  same.*^ 

44— Act  May  25,  1918,  40  Stat. 
45— E.  S.  2141,  4  Stat.  732,  June 
30,  1834. 


1016  Criminal  Law 

§  1320.  Seizure  and  confiscation  of  vehicles  used  in  in- 
troducing liquors  into  Indian  country.  Automobiles  or 
any  vehicles  or  conveyances  used  in  introducing,  or  at- 
tempting to  introduce,  intoxicants  into  the  Indian  coun- 
tiy,  or  where  the  introduction  is  prohibited  by  treaty 
or  Federal  statute,  whether  used  by  the  owner  thereof 
or  other  person,  shall  be  subject  to  the  seizure,  libel,  and 
forfeiture  provided  in  section  2140  of  the  Eevisod  Stat- 
utes of  the  United  States.*^ 

§  1321.  Provisions  sections  2140  and  2141  Revised 
Statutes  shall  apply  to  beer— The  prima  facie  evidence 
of  unlawful  possessing  of  liquor  in  Indian  country.  The 
provisions  of  sections  2140  and  2141  of  the  Revised  Stat- 
utes of  the  United  States  shall  also  apply  to  beer  and 
other  intoxicating  liquors  named  in  the  Act  of  January 
30,  1897  (Twenty-ninth  Statutes  at  liarge,  page  506), 
and  the  possession  by  a  person  of  intoxicating  liquors 
in  the  country  where  the  introduction  is  prohibited  by 
treaty  or  Federal  statute  shall  be  prima  facie  evidence 
of  unlawful  introduction.^''^ 

§  1322.  Prohibition  liquors  at  or  near  any  post — Pun- 
ishment. That  the  President  of  the  Ignited  States  as 
Commandei-  in  Chief  of  the  Army,  is  authorized  to  make 
such  reguhitious  governing  tlie  prohibition  of  alcoholic 
liquoi-s  in  or  near  military  camjis  and  to  tlie  officers  and 
enlisted  men  of  tlie  army  as  he  may  from  time  to  time 
deem  necessary  oi-  advisabh'.  Provided,  Tliat  no  per- 
son, f'orpoi-ation,  |)ait iicrslii]),  or  association  shall  sell, 
sup|tl>,  Of  lia\('  ill  liis  oi-  its  possession  any  inloxicat- 
iiii,''  oi-  spii-itnous  TKiuors  at  any  military  station,  can- 
tonnienl,  camp,  foi't,  ])ost,  oHicci-s'  or  enlisted  men's 
clul),  which  is  Ix'ing  used  at  the  time  for  military  ])ur- 
poses  under  this  act,  hiil  tin'  Secretary  of  War  nia\  iiiak(> 

46— Act    M:.rrh    H,    1917,   .'ID   Stat.  47— Act    M:iy    18,    1!)1G,    .'JD    Ktat. 

970.  124. 


The  National  Prohibition  Act  1017 

regulations  permitting  the  sale  and  use  of  intoxicating 
liquors  for  medicinal  purposes.  It  shall  be  unlawful  to 
sell  any  intoxicating  licjuor,  including  beer,  ale,  or  wine, 
to  any  officer  or  member  of  the  military  forces  while  in 
uniform,  except  as  herein  provided.  Any  person,  cor- 
poration, partnership,  or  association  violating  the  pro- 
visions of  this  section  of  the  regulations  made  there- 
under shall,  unless  otherwise  punishable  under  the  Arti- 
cles of  War,  be  deemed  guilty  of  a  misdemeanor  and  be 
punished  by  a  fine  of  not  more  than  one  thousand  dol- 
lars or  imprisonment  for  not  more  than  twelve  months, 
or  both." 


48— Sec.    12,    May    18,    1917,    40 
Stat.  82. 


CHAPTER  LXX 


VIOLATION  BY   NATIONAL,   RESERVE   AND  LAND   BANKS 


§  1325.  Punishment  for  violation  by 
bank  officials. 

§  1326.  Amendment  of  Sec.  5208  of 
Revised  Statutes,  falsely 
certifying  checks  by  bank. 

§  1327.  Amendment  Federal  Reserve 
Act,  as  amended  by  add- 
ing new  sec.  25. 

§  1328.  False  statement  by  applicant 
for  loan  under  Federal 
Farm  Loan  Act;  punish- 
ment. 

§  1329.  Forgery,  etc.,  bond  of  any 
land  bank  or  national 
farm  loan  association; 
punishment. 

§  1330.  Defending  or  attempting  to 
defend  any  person,  firm 
or  corporation  by  making 
false    pretense    concerning 


any  loan  under  the  Fed- 
eral Loan  act  is  punish- 
able. 

§  1331.  Any  person  connected  with 
federal  land  bank  or 
farm  loan  association  or 
joint  stock  land  bank 
who  embezzles,  abstracts 
or  wilfully  misapplies  any 
moneys,    etc. ;    penalty. 

S  1332.  No  officer  shall  receive  fee 
from  any  land  bank; 
punishment. 

§  1333.  Declaring  any  clause,  sen- 
tence, paragraph  or  part 
of  Act  July  17,  1916,  in- 
valid does  not  affect  any 
other  portion   of   Act. 

§  1334.  All  acts  and  parts  of  acts 
inconsistent  with  Act  July 
17,    1916,    repealed. 


§  1325.  Punishment  for  violation  by  bank  officials.  Sec. 
5.  Tliat  section  1^2  of  the  Fedei'nl  I\e.serve  Act,  as  jiiiumkUhI 
by  the  Act  of  June  21,  1917,  be  further  amended  and  re- 
enacted  to  read  as  follows: 

"(a)  No  irieinhci-  hank  and  no  oflicer,  directoi',  or  em- 
ployee thereof  shall  hereafter  make  any  loan  or  grant 
any  gratuity  to  any  bank  examiner.  Any  bank  oflicer, 
director,  or  employee  violating  this  provision  shall  be 
deemed  guilty  of  a  misdemeanor  and  shall  be  im])i'isoned 
not  cxceedijig  one  ycai-  or  fined  iiol  inoi'e  Ihan  $r),(H)(), 
or  both;  ami  may  hf  lined  a  riirllier  snm  e(|ual  lo  the 
money  so  loaned  or  giatnity  uixcn. 

"Any    examiner    acce|)ting    a    loan    oi'    gratuity    fiHmi 

1018 


Violation  by  Banks  1019 

any  bank  examined  by  him  or  from  an  officer,  director, 
or  employee  thereof  shall  be  deemed  guilty  of  a  misde- 
meanor and  shall  be  imprisoned  one  year  or  fined  not 
more  than  $5,000,  or  both,  and  may  be  fined  a  further  sum 
equal  to  the  money  so  loaned  or  gratuity  given,  and  shall 
forever  thereafter  be  disqualified  from  holding  office  as 
a  national  bank  examiner. 

''(b)  No  national  bank  examiner  shall  perform  any 
other  service  for  compensation  while  holding  such  office 
for  any  bank  or  officer,  director,  or  employee  thereof. 

"No  examiner,  public  or  private,  shall  disclose  the 
names  of  borrowers  or  the  collateral  for  loans  of  a  mem- 
ber bank  to  other  than  the  proper  officers  of  such  bank 
without  first  having  obtained  the  express  permission  in 
writing  from  the  Comptroller  of  the  Currency,  or  from 
the  board  of  directors  of  such  bank,  except  when  or- 
dered to  do  so  by  a  court  of  competent  jurisdiction,  or 
by  direction  of  the  Congress  of  the  United  States,  or 
of  either  House  thereof,  or  any  committee  of  Congress, 
or  of  either  House  duly  authorized.  Any  bank  exam- 
iner violating  the  provisions  of  this  subsection  shall  be 
imprisoned  not  more  than  one  year  or  fined  not  more  than 
$5,000,  or  both. 

"(c)  Except  as  herein  provided,  any  officer,  director, 
employee,  or  attorney  of  a  member  bank  who  stipulates 
for  or  receives  or  consents  or  agrees  to  receive  any  fee, 
commission,  gift,  or  thing  of  value  from  any  person, 
firm,  or  corporation,  for  procuring  or  endeavoring  to 
procure  for  such  person,  firm,  or  corporation,  or  for  any 
other  person,  firm,  or  corporation,  any  loan  from  or  the 
purchase  or  discount  of  any  paper,  note,  draft,  check,  or 
bill  of  exchange  by  such  member  bank  shall  be  deemed 
guilty  of  a  misdemeanor  and  shall  be  imprisoned  not 
more  than  one  year  or  fine  not  more  than  $5,000,  or 
both."i      . 

1— Part  One,  40  U,  S.  Stat,  at 
Large,  pages  970-971,  Act  Congress, 
Sept.   26,  1918. 


1020  Criminal  Law 

§  1326.  Amendment  of  section  5208  of  Revised 
Statutes— Falsely  certifying  checks  by  bank.  Sec. 
7.  It  shall  be  unlawful  for  any  officer,  director, 
agent,  or  employee  of  any  federal  reserve  bank, 
or  of  any  member  bank  as  defined  in  the  Act  of 
December  23,  1913,  known  as  the  Federal  Reserve 
Act,  to  certify  any  check  draw^n  upon  such  federal  re- 
serve bank  or  member  bank  unless  the  person,  firm,  or 
corporation  drawing  the  check  has  on  deposit  with  such 
federal  reserve  bank  or  member  bank,  at  the  times  such 
check  is  certified,  an  amount  of  money  not  less  than  the 
amount  specified  in  such  check.  Ajtiy  check  so  certified 
by  a  duly  authorized  officer,  director,  agent,  or  employee 
shall  be  a  good  and  valid  obligation  against  such  fed- 
eral reserve  bank  or  member  bank;  but  the  act  of  any 
officer,  director,  agent,  or  employee  of  any  such  federal 
reserve  bank  or  member  bank  in  violation  of  this  sec- 
tion shall,  in  the  discretion  of  the  Federal  Reserve  Board, 
subject  such  federal  reserve  bank  to  the  pejialties  im- 
posed by  section  11,  subsection  (h),  of  the  Federal  Re- 
serve Act,  and  shall  subject  such  member  bank,  if  a  na- 
tional bank,  to  the  liabilities  and  proceedings  on  the  part 
of  the  Comptroller  of  the  Currency  provided  for  in  sec- 
tion 5234,  Revised  Statutes,  and  shall,  in  the  discretion 
of  the  Federal  Reserve  Board,  subject  any  other  mem- 
ber bank  to  the  penalties  imposed  by  section  9  of  said 
P^ederal  Reserve  Act  for  the  violation  of  any  of  the  pro- 
visions of  said  act.  Any  officer,  director,  agent,  or  em- 
ployee of  any  federal  I'eserve  bank  or  menil)er  bank  who 
shall  wilfully  violate  tlie  ])r<>\isi()ns  of  this  section,  or 
who  shall  resort  to  any  tlevice,  or  receive  any  fictitious 
obligation,  directly  or  collaterally,  in  order  to  evade  the 
provisions  thereof,  <>r  wlio  siiall  certify  a  check  before 
the  amount  thereof  sliall  have  been  regularly  entered  to 
tlie  credit  of  tlie  di-awei-  npon  the  books  of  the  bank,  shall 
})e  (h'cnicd  unilty  of  a  inischMiieanoi'  and  shall,  on  conx'ic- 
lion    llnTcdf  ill   ;iiiy   (lisli-i('t    courl    <tf  llie    I'nilcd   Stales, 


Violation  by  Banks  1021 

be  fined  not  more  than  $5,000,  or  shall  be  imprisoned  for 
not  more  than  five  years,  or  both,  in  the  discretion  of  the 
court. 

' '  See.  5209.  Any  officer,  director,  agent,  or  employee  of 
any  federal  reserve  bank,  or  of  any  member  bank  as 
defined  in  the  Act  of  December  23,  1913,  known  as  the 
Federal  Reserve  Act,  who  embezzles,  abstracts,  or  wil- 
fully misapplies  any  of  the  moneys,  funds,  or  credits 
of  such  federal  reserv'^e  bank  or  member  bank,  or  who, 
without  authority  from  the  directors  of  such  federal  re- 
serve bank  or  member  bank,  issues  or  puts  in  circulation 
any  of  the  notes  of  such  federal  reserve  bank  or  mem- 
ber bank,  or  who,  without  such  authority,  issues  or  puts 
forth  any  certificate  of  deposit,  draws  any  order  or  bill 
of  exchange,  makes  any  acceptance,  assigns  any  note, 
bond,  draft,  bill  of  exchange,  mortgage,  judgment,  or 
decree,  or  who  makes  any  false  entry  in  any  book,  re- 
port, or  statement  of  such  federal  reserve  bank  or  mem- 
ber bank,  with  intent  in  any  case  to  injure  or  defraud 
such  federal  reserve  bank  or  member  bank,  or  any  other 
company,  body  politic  or  coi*porate,  or  any  individual 
person,  or  to  deceive  any  officer  of  such  federal  reserve 
bank  or  member  bank,  or  the  Comptroller  of  the  Cur- 
rency, or  any  agent  or  examiner  appointed  to  examine 
the  affairs  of  such  federal  reserve  bank  or  member  bank, 
or  the  Federal  Reserve  Board;  and  every  receiver  of  a 
national  banking  association  who,  with  like  intent  to 
defraud  or  injure,  embezzles,  abstracts,  purloins,  or  wil- 
fully misapplies  any  of  the  moneys,  funds,  or  assets  of 
his  trust,  and  eveiy  person  who,  with  like  intent,  aids 
or  abets  any  officer,  director,  agent,  employee,  or  receiver 
in  any  violation  of  this  section  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  in  any 
district  court  of  the  United  States  shall  be  fined  not  more 
than  $5,000  or  shall  be  imprisoned  for  not  more  than  five 
years,  or  both,  in  the  discretion  of  the  court. 

''Any  federal  reserve  agent,  or  any  agent  or  employee 


J  022  Criminal  Law 

of  sneli  federal  i-eserve  agent,  or  of  the  Federal  Reserve 
Board,  who  embezzles,  abstracts,  or  wilfully  misapplies 
any  moneys,  funds,  or  securities  intrusted  to  his  care,  or 
without  complying-  with  or  in  violation  of  the  provisions 
of  the  Federal  Reserve  Act,  issues  or  puts  in  circulation 
any  federal  reserve  notes  shall  be  guilty  of  a  misde- 
meanor and  upon  conviction  in  any  district  court  of  the 
United  States  shall  be  fined  not  more  than  $5,000  or  im- 
prisoned for  not  more  than  five  years,  or  both,  in  the 
discretion  of  the  court."  ^ 

§  1327.  Amendment  Federal  Reserve  Act,  as  amended 
by  adding"  new  section  25.  "Every  oflicer,  director,  clerk, 
employee,  or  agent  of  any  corporation  organized  under 
this  section  who  embezzles,  abstracts,  or  wilfully  mis- 
applies any  of  the  moneys,  funds,  credits,  securities,  evi- 
dences of  indebtedness  or  assets  of  any  character  of  such 
corporation;  or  wlio,  without  authority,  from  the  direc- 
tors, issues  or  puts  forth  any  certificate  of  deposit,  draws 
any  order  or  bill  of  exchange,  makes  any  acceptance,  as- 
signs any  note,  bond,  debenture,  draft,  bill  of  exchange, 
mortgage,  judgment,  or  decree;  or  wlio  makes  any  false 
entry  in  any  book,  report,  or  statement  of  such  corpora- 
tion with  intent,  in  either  case,  to  injure  or  defraud  such 
corporation  or  any  other  com])any,  body  politic  or  cor- 
porate, ())•  any  individual  ixmsoii,  or  !o  deceive  any  offi- 
cer of  sucii  cori)oi-a1ioii,  the  Federal  Reserve  Board,  or 
any  agent  or  exaiiiiiici-  a))])()inted  to  exainiiie  the  affairs 
of  any  such  coi  poi-.-il  ion ;  and  cnci'v  rccciNcr  of  any  sucJi 
corporation  and  every  clei'k  oi*  eini)loye('  of  such  receiver 
who  shall  einl)ezzle,  abstract,  or  Avilfnlly  misapply  or 
wrongfnlly  convert  to  his  own  use  ;niy  moneys,  funds, 
credits,  or  assets  ol"  any  diaiactci-  which  may  conu;  into 
his  ))oss('ssioii   o)-  nndcr  his  conti'ol   in   the  cxccntion  of 

U— Tart  One,  40  U.  S.  Stat,  at 
Large,  page  972,  Act  of  CongresB, 
8cpt.   26,   1918. 


Violation   bv  Banks  1023 

his  trust  or  the  performance  of  the  duties  of  his  em- 
ployment; and  every  such  receiver  or  clerk  or  employee 
of  such  receiver  who  shall,  with  intent  to  injure  or  de- 
fraud any  person,  body  politic  or  corporate,  or  to  deceive 
or  mislead  the  Federal  Reserve  Board,  or  any  agent  or 
examiner  appointed  to  examine  the  affairs  of  such  re- 
ceiver, shall  make  any  false  entry  in  any  book,  report, 
or  record  of  any  matter  connected  with  the  duties  of 
such  receiver;  and  eveiy  person  who  with  like  intent 
aids  or  abets  any  such  officer,  director,  clerk,  employee, 
or  agent  of  any  corporation  organized  under  this  sec- 
tion, or  receiver  or  clerk  or  employee  of  such  receiver 
as  aforesaid  in  any  violation  of  this  section,  shall  upon 
conviction  thereof  be  imprisoned  for  not  less  than  two 
years  nor  more  than  ten  years,  and  may  also  be  tined 
not  more  than  $5,000,  in  the  discretion  of  the  court. 

'' Whoever  being  connected  in  any  capacity  with  any 
corporation  organized  under  this  section  represents  in 
any  way  that  the  United  States  is  liable  for  the  payment 
of  any  bond  or  other  obligation,  or  the  interest  thereon, 
issued  or  incurred  by  any  corporation  organized  here- 
under, or  that  the  United  States  incurs  any  liability  in 
respect  of  any  act  or  omission  of  the  corporation,  shall 
be  punished  by  a  fine  of  not  more  than  $10,000  and  by 
imprisonment  for  not  more  than  five  years.^ 

§  1328.  False  statement  by  applicant  for  loan  under 
Federal  Farm  Loan  Act — Punishment.  Any  examiner 
appointed  under  this  act  who  shall  accept  a  loan  or  grat- 
uity from  any  land  bank  or  national  farm  loan  associa- 
tion examined  by  him,  or  from  any  person  connected 
with  any  such  bank  or  association  in  any  capacity,  shall 
be  punished  by  a  fine  of  not  exceeding  $5,000,  or  by 
imprisonment  not  exceeding  one  year,  or  both,  and  may 
be  fined  a  further  sum  equal  to  the  money  so  loaned  or 

3— Sec.  25,  Act  Dec.  24,  1919,  41 
Stat.  384. 


1024  Ceimixal  Law 

gratuity  given,  and  shall  forever  thereafter  be  disquali- 
fied from  holding  office  as  an  examiner  under  the  provi- 
sions of  this  act.  No  examiner,  while  holding  such  office, 
shall  perform  any  other  service  for  compensation  for 
any  bank  or  banking  or  loan  association,  or  for  any  per- 
son connected  therewith  in  any  capacity.* 

§  1329.  Forgery,  etc.,  bond  of  any  land  bank  or  national 
farm  loan  association — Punishment.  Any  person  who 
shall  falsely  make,  forge,  or  counterfeit,  or  cause  or  pro- 
cure to  be  falsely  made,  forged,  or  counterfeited,  or  will- 
ingly aid  or  assist  in  falsely  making,  forging,  or  counter- 
feiting any  bond,  coupon,  or  paper  in  imitation  of,  or 
purporting  to  be  in  imitation  of,  the  bonds  or  coupons 
issued  by  any  land  bank  or  national  fann  loan  associa- 
tion, now  or  hereafter  authorized  and  acting  under  the 
laws  of  the  United  States;  or  any  person  who  shall  pass, 
utter,  or  publish,  or  attempt  to  pass,  utter,  or  publish 
any  false,  forged,  or  counterfeited  bond,  coupon,  or  pa- 
per purporting  to  be  issued  by  any  such  bank  or  asso- 
ciation, knowing  the  same  to  be  falsely  made,  forged,  or 
counterfeited;  or  whoever  shall  falsely  alter,  or  cause 
or  ])rocure  to  be  falsely  altered,  or  shall  willingly  aid 
()!•  assist  in  falsely  altering  any  such  bond,  coupon,  or 
paper,  or  shall  pass,  utter,  or  publish  as  true  any  falsely 
altered  or  spurious  bond,  coupon,  or  ])aper  issued,  or  pur- 
pc)rting  to  have  been  issued,  by  any  sucli  bank  or  asso- 
(•i;ili(»ii.  knowing-  llie  same  to  be  falsely  altei'cd  or  spuri- 
ous, shall  be  punished  by  a  fine  of  not  exceeding  $r),()0() 
or  by  iniprisonnKMii  not  exceeding. five  years,  or  bolji.^ 

§  1330.  Defending-  or  attempting  to  defend  any  person, 
firm  or  corporation  by  making  false  pretense  concerning 
any  loan  under  the  Federal  Loan  Act  is  punishable. 
Any  jxTsoii  wlio  sli;ill  (Icccixc,  dctVaiid,  or  impose  iipoii, 

4 — Sec.  .31,   Act   July   17.  lOKi,  .39  5  — Act    .riijy    17,    I'tlO,    .'!!)    Stjit. 

Stat.  .382.  :58;i. 


Violation  by  Banks  1025 

or  who  shall  attempt  to  deceive,  defraud,  or  impose 
upon,  any  person,  firm,  or  corporation  by  making  any 
false  pretense  or  representation  regarding  the  character, 
issue,  security,  or  terms  of  any  farm  loan  bond,  or  cou- 
pon, issued  under  the  terms  of  this  act;  or  by  falsely 
pretending  or  representing  that  any  fann  loan  bond,  or 
coupon,  issued  under  the  terms  of  this  act  by  one  class 
of  land  banks  is  a  farm  loan  bond,  or  coupon,  issued 
by  another  class  of  banks;  or  by  falsely  pretending  or 
representing  that  any  farm  loan  bond,  or  coupon,  is- 
sued under  the  terms  of  this  act,  or  anything  contained 
in  said  farm  loan  bond,  or  coupon,  is  anything  other 
than,  or  different  from,  what  it  pui^Dorts  to  be  on  the 
face  of  said  bond  or  coupon,  shall  be  fined  not  exceed- 
ing $500  or  imprisoned  not  exceeding  one  year,  or  both. 
The  Secretary  of  the  Treasury  is  hereby  authorized  to 
direct  and  use  the  Secret  Service  Division  of  the  Treas- 
ury Department  to  detect,  arrest,  and  deliver  into  cus- 
tody of  the  United  States  marshal  having  jurisdiction, 
any  person  or  persons  violating  any  of  the  provisions 
of  this  section.^ 

§  1331.  Any  person  connected  with  federal  land  bank 
or  farm  loan  association  or  joint  stock  land  bank  who 
embezzles,  abstracts  or  wilfully  misapplies  any  moneys, 
etc. — Penalty.  Any  person  connected  in  any  capacity 
with  any  national  farm  loan  association,  federal  land 
bank,  or  joint  stock  land  bank,  who  embezzles,  abstracts, 
or  wilfully  misapplies  any  moneys,  funds,  or  credits 
thereof,  or  who  without  authority  from  the  directors 
draws  any  order,  assigns  any  note,  bond,  draft,  mort- 
gage, judgment,  or  decree  thereof,  or  who  makes  any 
false  entry  in  any  book,  report,  or  statement  of  such 
association  or  land  bank  with  intent  in  either  case  to 
defraud  such  institution  or  any  other  company,  body 

6— Act    July    17,    1916,    39    Stat. 
384. 

C.  L.— 65 


1026  Cbiminal  Law 

politic  or  coi*porate,  or  any  individual  person,  or  to 
deceive  any  officer  of  a  national  farm  loan  association 
or  land  bank  or  any  agent  appointed  to  examine  into 
the  affairs  of  any  such  association  or  bank,  and  eveiy 
person  who  with  like  intent  aids  or  abets  any  officer, 
clerk,  or  agent  in  any  violation  of  this  section,  shall  be 
punished  by  a  fine  of  not  exceeding  $5,000  or  by  imprison- 
ment not  exceeding  five  years,  or  bothJ 

§  1332.  No  officer,  etc.,  shall  secure  fee  from  any  land 
bank — Punishment.  Other  than  the  usual  salary  or  di- 
rector's fee  paid  to  any  officer,  director,  or  employee 
of  a  national  fann  loan  association,  a  federal  land  bank, 
or  a  joint  stock  land  bank,  and  other  than  a  reasonable 
fee  paid  by  such  association  or  bank  to  any  officer,  direc- 
tor, attorney,  or  employee  for  services  rendered,  no  offi- 
cer, director,  attorney,  or  employee  of  an  association  or 
bank  organized  under  this  act  shall  be  a  beneficiary  of  or 
receive,  directly  or  indirectly,  any  fee,  commission,  gift, 
or  other  consideration  for  or  in  connection  with  any 
transaction  or  business  of  such  association  or  bank.  No 
land  bank  or  national  fann  loan  association  organized 
under  this  act  shall  charge  or  receive  any  fee,  commis- 
sion, bonus,  gift,  or  other  consideration  not  herein 
specifically  authorized.  No  examiner,  public  or  private, 
shall  disclose  the  names  of  borrowers  to  other  than  the 
proper  officers  of  a  national  fann  loan  association  or 
land  bank  without  first  having  obtained  express  per- 
mission in  writing  from  the  Farm  Loan  Commissioner 
or  from  the  board  of  directors  of  such  association  or 
bank,  except  when  ordered  to  do  so  by  a  court  of  com- 
petent jurisdiction  or  by  direction  of  the  congress  of  the 
United  States,  or  of  citlior  liouse  thereof,  or  any  com- 
mittee of  congress  or  of  either  liousc  duly  authorized. 
Any  person  violating  any  provision  of  this  paragraph 

7— Act    July    17,    1916,    39    Stat. 
383. 


Violation  by  Banks  1027 

shall  be  punished  by  a  fine  of  not  exceeding  $5,000  or 
by  imprisonment  not  exceeding  one  year,  or  both.® 

§  1333.  Declaring  any  clause,  sentence,  para^aph  or 
part  of  Act  July  17,  1916,  invalid  does  not  affect  any 
other  portion  of  act.  If  any  clause,  sentence,  paragraph, 
or  part  of  this  act  shall  for  any  reason  be  adjudged  by 
any  court  of  competent  jurisdiction  to  be  invalid,  such 
judgment  shall  not  affect,  impair,  or  invalidate  the  re- 
mainder of  this  act,  but  shall  be  confined  in  its  opera- 
tion to  the  clause,  sentence,  paragraph,  or  part  thereof 
directly  involved  in  the  controversy  in  which  such  judg- 
ment shall  have  been  rendered.^ 

§  1334.  All  acts  and  parts  of  acts  inconsistent  with  Act 
July  17,  1916  repealed.  All  acts  or  parts  of  acts  incon- 
sistent with  this  act  are  hereby  repealed,  and  this  act 
shall  take  effect  upon  its  passage.  The  right  to  amend, 
alter,  or  repeal  this  act  is  hereby  expressly  reserved. ^° 

8— Act    July    17,    1916,    39    Stat.  10— Sec.  35,  Act  July  17,  1916,  39 

383.  Stat.   384. 

"9— Sec.  34,  Act  July  17,  1916,  39 
Stat.  384. 


CHAPTER  LXXI 


OFFENSES  EELATING  TO  NAVIGATION 


§  1337.  What  is  "master,"  "sea- 
man, ' '  and  vessel  and 
owner. 

§  1338.  Officer  or  master  of  a  vessel       §  1349. 
inflicting  corporal  punish- 
ment    guilty     of     misde- 
meanor. §  1350. 

§  1339.  Shipping     commissioner     or 
clerk     demanding    or    re- 
ceiving excessive  fee;  pun-       §  1351. 
ishment. 

§  1340.  Failure  to  provide  clothing,       §  1352. 
etc.,  on  vessel;  penalty. 

§  1341.  Penalty   for  master  of  ves- 
sel  failing  as   to   weights       §  1353. 
and  measures. 

§  1342.  Master    or    owner    of   vessel       §  1354. 
punished    for    failure    to 
keep    lime    juice,    etc.,    on       §  1355. 
board. 

§  1343.  Vessel  owned  by  U.  S.  cit- 
izen   engaged    in    whaling       §  1356. 
must  provide  lemon  juice, 
etc. 

§  1344.  Punishment    of   offenses      §1357. 
committed  by  seaman. 

§  1345.  Neglect  of  duty  and  drunk- 
enness of  sailor;  punish- 
ment. §  1358. 

8  134C.  Soliciting  seaman  to  become 
a    lodger,    within    twenty- 
four    hours    after    anchor-       §  1359. 
ing. 

S  1347.  Unauthorized    perHOii     going       §  1360. 
aboard    vessel,    before 
landing;   punishment. 
Ji  1348.  Mcrrhnnt     marine     violation 

1028 


of  Act  of  Congress,  Sept. 
7,  1916,  where  no  different 
penalty  is  provided. 

Unauthorized  person  break- 
ing lock  or  fastening  on 
vessel;  penalty. 

Section  9  of  "Shipping  Act 
of  1916"  amended  as  fol- 
lows. 

Unlawful  to  advance  wages 
to  seamen;   punishment. 

Soldiers'  and  Sailors'  CivU 
Eelief  Act,  punishment  for 
false  affidavits. 

Failing  to  go  to  port  of  des- 
tination. 

Steamers  running  on  rivers 
must  furnish  stairways. 

Officers  of  ships  under  Act 
Dec.  31,  1792,  making 
false  register;  penalty. 
Officers  of  ships  under  Act 
Dec.  31,  1792,  neglecting 
to  perform  duty;  penalty. 

Sending  any  American  ship 
to  sea  in  unscaworthy 
condition,  etc.;  punish- 
ment. 

Master  who  takes  on  board 
vessel  more  passengers 
than  stated  in  certificate. 

Captain  must  assign  space  to 
deck  passengers. 

Failure  to  provide  accom- 
modations as  provided  in 
preceding  sections;  pun- 
ishment. 


Offenses  Relating  to  Navigation 


1029 


§  1361.  Eiver  steamers  carrying  pas- 
sengers must  provide  life 
preservers. 

§  1362.  Steamers  carrying  passen- 
gers at  night  must  carry 
suitable  number  watchmen. 

§  1363.  Neglecting  to  keep  watch- 
men, fine  of  one  thousand 
dollars. 

§  1364.  Manner  of  packing  ex- 
plosives. 

§  1365.  Failure  to  ship  explosives 
as  provided  by  the  pre- 
ceding section ;  punish- 
ment. 

§  1366.  Gharges  found  by  inspectors 
and  the  wages  due,  must 
be  paid  by  master. 

§  1367.  Punishment  for  failing  to 
pay  wages,  etc. 

§  1368.  Inspector  making  false  cer- 
tificate touching  steam 
vessel  as  to  hull,  boilers, 
etc. ;   penalty. 

§  1369.  Changing  any  license  issued 
by  inspector  under  Act 
March  23,  1900. 

§  1370.  Penalty  for  using  un- 
stamped and  inspected 
steel  plates  in  steam  ves- 
sels. 

§  1371.  Counterfeiting  any  stamp 
on    steel   plates;    penalty. 

§  1372.  Affixing  any  false,  forged, 
fraudulent,  spurious  or 
counterfeit  stamp  on  steel 
plate  in  steam  vessel; 
penalty. 

§  1373.  Any  officer,  receiver,  etc., 
common  carrier  by  water 
disclosing   information. 

§  1374.  Interfering  or  obstructing 
lighthouse  board,  etc. 

§  1375.  Eefusal  to  maintain  lights 
on  bridges,  etc. 

§  1376.  Lighthouse,  j  u  r  i  s  d  iction, 
regulations,  etc. 


§  1377.  Using  vessel  in  coast-guard 
service  for  private  pur- 
pose ;    punishment. 

§  1378.  Prima  facie  evidence  to  true 
possession  of  sponge  less 
than  five  inches  in  diam- 
eter. 

§  1379.  Courts  where  violation  may 
be  prosecuted  for  selling 
or  taking  sponges. 

§  1380.  Selling  or  taking  sponges  is 
criminal;    punishment. 

§  1381.  Unlawful,  citizen  of  U.  S. 
to  take  or  catch  sponges 
less  than  five  inches  in 
diameter. 

§  1382.  Use  of  navigable  waters  to 
be  regulated  by  Secretary 
of  War. 

§  1383.  Wilfully  and  unlawfully  in- 
juring any  pier  subject  to 
fine. 

§  1384.  Who  by  culpable  negligence 
breaks  or  injures  sub- 
marine cable  guilty  of 
misdemeanor. 

§  1385.  A  master  of  vessel  laying 
or  repairing  cables  who 
fails  to  observe  rules; 
penalty. 

§  1386.  Person  who  wilfully  breaks 
or  injures  a  submarine 
cable  guilty  of  misde- 
meanor. 

§  1387.  Master  of  fishing  vessel 
must  keep  at  least  one 
nautical  mile  from  cable. 

§  1388.  Definition  of  terms  used  un- 
der Act  Feb.  29,  1888. 

§  1389.  Unlawful  to  discharge  or 
deposit  any  refuse  matter 
in  New  York  harbor. 

§  1390.  Masters  and  engineers  of 
vessel  guilty  of  crime 
knowingly  towing  scor 
loaded  with  refuse  matter 


1030 


Criminal  Law 


to  be  emptied  in  New 
York  harbor. 

§  1391.  Waste  matter  to  be  deposited 
in  definite  limits  in  New 
York  harbor;   penalty. 

§  1392.  Wilfully  and  knowingly  vi- 
olating rules  of  reservoirs 
at  headwaters  of  Missis- 
sippi;   punishment, 

§  1393.  No  obstruction  may  be  made 
in  the  navigable  waters 
except  by  Act  of  Con- 
gress. 

§  1394.  Unlawful  to  engage  in  fish- 
ing in  channel  adjacent  to 
New  York  harbor;  pen- 
alty. 

§  1395.  Drawbridges  subject  to 
rules  of  Secretary  of  War 
and  failure  to  comply 
with  them  a  misdemeanor. 

§  1396.  No  building,  wharves,  etc., 
may  be  made  except  upon 
places  recommended  by 
chief   engineer. 

§  1397.  Violations,  Sec.  9,  10  and 
Act  March  3,  1899. 

S  1398.  Unlawful  to  throw  any 
refuse  matter  from  ships, 
mills,  manufacturing 
plants,  etc.,  into  any 
navigable  water  in  U.  S. 

g  1399.  Unlawful  to  build  upon,  use 
or  in  any  manner  impair 
any  sea  wall,  etc.,  built 
by  the  U.  S. 

§  1400.  Unlawful  to  anchor  vessels 
in  navigable  waters,  etc., 
to  float  loose  timber  or 
logs,  etc. 

j)  14'! I.  Kvery  person  and  corpora- 
tion violating  sections  13, 
14  and  15,  and  every 
muster,  pilot  or  engineer 
who  knowingly  engages  in 
towing  scor  that  is  londod 
with  material  speciiiod  in 


sec.  14,  or  obstruct  any 
waterAvay  under  Sec.  15, 
Act  Mar.  3,  1899,  shall 
be   punished. 

§  1402.  Eailroad  bridge  over  naviga- 
ble waters;  failure  to 
correct  obstruction  after 
notice  by  Secretary  of 
War,  guilty  of  misde- 
meanor. 

§  1403.  The  Department  of  Justice 
shall  conduct  prosecutions 
under  Act  March  3,  1899. 

§  1404.  Regulations  and  rules  to  be 
made  by  Secretary  of  War 
concerning  the  floating  of 
logs,  Sec.  15,  Act  March 
3,    1899,   shall   not   apply. 

§  1405.  Secretary  of  War  shall 
make  rules  and  regulations 
concerning  dumping  ref- 
use material  into  naviga- 
ble waters. 

§  1406.  Any  person  directly  or  in- 
directly giving  any  sum 
of  money  to  any  inspector 
of  navigation;  punish- 
able. 

§  1407.  Unlawful  to  deposit  or 
dump  any  refuse  matter 
in  Lake  Michigan;  punish- 
ment. 

§  1408.  Person  owning  or  operating 
dam,  under  provisions  of 
Act  June  23,  1910,  fail- 
ing to  maintain  lights 
and  signals;  punishment. 

S  1409.  Failure  to  comply  with  law- 
ful orders  or  Secretary  of 
War  and  Chief  Engineer 
under  provisions  Act  June 
23,  1910,  a  misdemeanor. 
Also  Act  Mar.  23,  1906. 

§  1410.  Secretary  of  War  to  pro- 
scribe rules  and  regula- 
tions concerning  naviga- 
tion; punishment  for  vio- 
lation. 


Offenses  Relating  to  Navigation  1031 

§  1337.  What  is  "master,"  ** seaman,"  and  vessel 
and  owner.  In  the  construction  of  this  title,  eveiy  person 
having-  the  command  of  any  vessel  belonging  to  any 
citizen  of  the  United  States  shall  be  deemed  to  be  the 
''master"  tliereof;  and  every  person  (apprentices  ex- 
cepted) who  shall  be  employed  or  engaged  to  serve  in 
any  capacity  on  board  the  same  shall  be  deemed  and 
taken  to  be  a  "seaman;"  and  the  term  "vessel"  shall 
be  understood  to  comprehend  every  description  of  ves- 
sel navigating  on  any  sea  or  channel,  lake  or  river,  to 
which  the  provisions  of  this  title  may  be  applicable,  and 
the  term  "owner"  shall  be  taken  and  understood  to  com- 
prehend all  the  several  persons,  if  more  than  one,  to 
whom  the  vessel  shall  belong.^ 

§  1338.  Officer  or  master  of  a  vessel  inflicting  corporal 
punishment — Guilty  of  misdemeanor.  Flogging  and  all 
other  forms  of  corporal  punishment  are  hereby  prohib- 
ited on  board  of  any  vessel,  and  no  form  of  corporal 
punishment  on  board  of  any  vessel  shall  be  deemed  jus- 
tifiable, and  any  master  or  other  officer  thereof  who 
shall  violate  the  aforesaid  provisions  of  this  section, 
or  either  thereof,  shall  be  deemed  guilty  of  a  misde- 
meanor, punishable  by  imprisonment  for  not  less  than 
three  months  nor  more  than  two  years.  Whenever  any 
officer  other  than  the  master  of  such  vessel  shall  violate 
any  provision  of  this  section,  it  shall  be  the  duty  of  such 
master  to  surrender  such  officer  to  the  proper  authori- 
ties as  soon  as  practicable,  provided  he  has  accurate 
knowledge  of  the  misdemeanor,  or  complaint  thereof  is 
made  within  three  days  after  reaching  port.  Any  fail- 
ure on  the  part  of  such  master  to  use  due  diligence  to 
comply  herewith,  which  failure  shall  result  in  the  escape 
of  such  officer,  shall  render  the  master  of  vessel  or  the 
owner  of  the  vessel  liable  in  damages  for  such  flogging 

1— Act   March   4,    1915,   38   Stat. 
1167, 


1032  Criminal  Law 

or  corporal  punishment  to  the  person  illegally  punished 
by  such  officer.* 

§  1339.  Shipping  commissioner  or  clerk  demanding  or 
receiving  excessive  fee — Punishment.  Any  question  con- 
cerning the  forfeiture  of,  or  deductions  from,  the  wages 
of  any  seaman  or  apprentice,  may  be  deteiTained  in  any 
proceeding  lawfully  instituted  with  respect  to  such 
wages,  notwithstanding  the  offense  in  respect  of  which 
such  question  arises,  though  hereby  made  punishable  by 
imprisonment  as  well  as  forfeiture,  has  not  been  made  the 
subject  of  any  criminal  proceeding.^ 

§  1340.  Failure  to  provide  clothing,  etc.  on  vessel — 
Penalty.  Eveiy  vessel  bound  on  any  foreign  voyage  ex- 
ceeding in  length  fourteen  days  shall  also  be  provided 
with  at  least  one  suit  of  woolen  clothing  for  each  sea- 
man, and  every  vessel  in  the  foreign  or  domestic  trade 
shall  provide  a  safe  and  wann  room  for  the  use  of  sea- 
men in  cold  weather.  Failure  to  make  such  provision 
shall  subject  the  owner  or  master  to  a  penalty  of  not  less 
than  one  hundred  dollars.* 

§  1341.  Penalty  for  master  of  vessel  failing  as  to 
weights  and  measures.  Every  master  sliall  keep  on  board 
proper  weights  and  measures  for  the  purpose  of  deter- 
mining the  quantities  of  the  several  provisions  and  arti- 
cles served  out,  and  shall  allow  the  same  to  be  used  at 
the  time  of  serving  out  such  provisions  and  articles,  in 
tlie  presence  of  a  witness,  whenever  any  dispute  arises 
about  sucli  quantities,  and  in  default  shall,  for  every 
offense,  be  1in])]('  to  a.  penalty  of  not  more  tlinn  fifty 
dollars.* 

2— R.  S.  4611,  See.  9,  Act  Mar.  4—11.  S.  4572,  Sec.  15,  Act  Dec. 
4,  1915,  .'{8  Stat.  1107.  21,  1898,  30  Stnt.  759. 

3— R.  8.  4603,  Act  June  7,  1872,  5— R.  S.  4571,  Act  Juno  7,  1872, 
17  Stnt.  275.  17  Stnt.  270. 


Offenses  Relating  to  Navigation  1033 

§  1342.  Master  or  owner  of  vessel  punished  for  fail- 
ure to  keep  lime  juice,  etc.,  on  board.  If,  on  any  such 
vessel,  such  medicines,  medical  stores,  lime  or  lemon 
juice,  or  other  articles,  sugar,  and  vinegar,  as  are  re- 
quired by  the  preceding  section,  are  not  provided  and 
kept  on  board,  as  required,  the  master  or  owner  shall 
be  liable  to  a  penalty  of  not  more  than  five  hundred  dol- 
lars; and  if  the  master  of  any  such  vessel  neglects  to 
serve  out  the  lime  or  lemon  juice,  and  sugar  and  vinegar 
in  the  case  and  manner  directed,  he  shall  for  each  such 
offense  be  liable  to  a  penalty  of  not  more  than  one  hun- 
dred dollars;  and  if  any  master  is  convicted  in  either 
of  the  offenses  mentioned  in  this  section,  and  it  appears 
that  the  offense  is  owing  to  the  act  or  default  of  the 
owner,  such  master  may  recover  the  amount  of  such 
penalty,  and  the  costs  incurred  by  him,  from  the  owner.^ 

§  1343.  Vessel  owned  by  United  States  citizen  engaged 
in  whaling  must  provide  lemon  juice,  etc.  Every  ves- 
sel belonging  to  a  citizen  of  the  United  States  bound 
from  a  port  in  the  United  States  to  any  foreign  port,  or 
being  of  the  burden  of  seventy-five  tons  or  upward,  and 
bound  from  a  port  on  the  Atlantic  to  a  port  on  the  Pa- 
cific, or  vice  versa,  shall  be  provided  with  a  chest  of 
medicines;  and  eveiy  sailing-vessel  bound  on  a  voyage 
across  the  Atlantic  or  Pacific  Ocean,  or  around  Cape 
Horn,  or  the  Cape  of  Good  Hope,  or  engaged  in  the 
whale  or  other  fisheries,  or  in  sealing,  shall  also  be  pro- 
vided with,  and  cause  to  be  kept,  a  sufficient  quantity 
of  lime  or  lemon  juice,  and  also  sugar  and  vinegar,  or 
other  anti-scorbutics,  to  be  served  out  to  every  seaman 
as  follows:  The  master  of  every  such  vessel  shall  serv^e 
the  lime  or  lemon  juice,  and  sugar  and  vinegar,  to  the 
crew,  within  ten  days  after  salt  provisions  mainly  have 
been  sei*ved  out  to  the  crew,  and  so  long  afterward  as 

6— E.  S.  4570,  Act  June  7,  1872, 
17  Stat.  270. 


lOSi  Ckiminal  Law 

such  consumption  of  salt  provisions  continues;  the  lime 
or  lemon  juice  and  sugar  daily  at  the  rate  of  half  an 
ounce  each  per  day;  and  the  vinegar  weekly,  at  the  rate 
of  half  a  pint  per  week  for  each  member  of  the  crewJ 

§  1344.  Punishment  for  offenses  cominitted  by  seaman. 
Whenever  any  seaman  who  has  been  lawfully  engaged 
or  any  apprentice  to  the  sea  service  commits  any  of  the 
following  offenses,  he  shall  be  punished  as  follows: 

First.  For  desertion,  by  forfeiture  of  all  or  any  part 
of  the  clothes  or  effects  he  leaves  on  board,  and  of  all 
or  any  part  of  the  wages  or  emoluments  which  he  has 
then  earned. 

Second.  For  neglecting  or  refusing  without  reasonable 
cause  to  join  his  vessel  or  to  proceed  to  sea  in  his  vessel, 
or  for  absence  without  leave  at  any  time  within  twenty- 
four  hours  of  the  vessel's  sailing  from  any  port,  either 
at  the  commencement  or  during  the  progress  of  the 
voyage,  or  for  absence  at  any  time  without  leave  and 
without  sufficient  reason  from  his  vessel  and  from  his 
duty,  not  amounting  to  desertion,  by  forfeiture  from  his 
wages  of  not  more  than  two  days'  pay  or  sufficient  to 
defray  any  expenses  which  sliall  have  been  properly  in- 
curred in  hiring  a  substitute. 

Third.  For  quitting  the  vessel  without  leave,  after  her 
arrival  at  the  port  of  her  delivery  and  before  she  is 
placed  in  security,  by  forfeiture  from  his  wages  of  not 
more  than  one  month's  pay. 

Fourth.  For  wilful  disobedience  to  any  lawful  com- 
mand at  sea,  by  l)eiiig,  at  the  option  of  the  master,  placed 
in  irons  until  such  disobodionce  sliall  cease,  and  upon 
arriviil  in  port  by  roifcitnic  IVotn  liis  wages  of  not  more 
than  four  days'  pji}^  or,  at  the  discretion  of  IIk^  court, 
])y  iniprisonniont  for  not  moro  than  one  inontii. 

Fifth.  F(»i'    colli  jiiikmI     wiU'nl     disobedience     to    law- 

7— R.  .S.  4.1G9,  Act  Juno  7,  1872, 
17  Stat.   270. 


Offenses  Relating  to  Navigation  1035 

ful  command  or  continued  wilful  neglect  of  duty  at 
sea,  by  being,  at  tlie  option  of  tlie  master,  placed  in 
irons,  on  bread  and  water,  with  full  rations  ever}''  fiftli 
day,  until  such  disobedience  shall  cease,  and  upon  ar- 
rival in  port  by  forfeiture,  for  every  twenty-four  hours' 
continuance  of  such  disobedience  or  neglect,  of  a  sum 
of  not  more  than  twelve  days'  pay,  or  by  imprisonment 
for  not  more  than  three  months,  at  the  discretion  of  the 
court. 

Sixth.  For  assaulting  any  master  or  mate,  by  imprison- 
ment for  not  more  than  two  years. 

Seventh.  For  wilfully  damaging  the  vessel,  or  embez- 
zling or  wilfully  damaging  any  of  the  stores  or  cargo, 
by  forfeiture  out  of  his  wages  of  a  sum  equal  in  amount 
to  the  loss  thereby  sustained,  and  also,  at  the  discre- 
tion of  the  court,  by  imprisonment  for  not  more  than 
twelve  months. 

Eighth.  For  any  act  of  smuggling  for  which  he  is  con- 
victed and  whereby  loss  or  damage  is  occasioned  to  the 
master  or  owner,  he  shall  be  liable  to  pay  such  master 
or  owner  such  a  sum  as  is  sufficient  to  reimburse  the 
master  or  owner  for  such  loss  or  damage,  and  the  whole 
or  any  part  of  his  wages  may  be  retained  in  satisfac- 
tion or  on  account  of  such  liability,  and  he  shall  be 
liable  to  imprisonment  for  a  period  of  not  more  than 
twelve  months.® 

§  1345.  Neglect  of  duty  and  drunkenness  of  sailor — 
Punishment.  Any  master  of,  or  any  seaman  or  appren- 
tice belonging  to,  any  merchant  vessel,  who,  by  wilful 
breach  of  duty,  or  by  reason  of  drunkenness,  does  any 
act  tending  to  the  immediate  loss  or  destruction  of,  or 
serious  damage  to  such  vessel,  or  tending  immediately 
to  endanger  the  life  or  limb  of  any  person  belonging 
to  or  on  board  of  such  vessel;  or  who,  by  wilful  breach 

8— E.   S.   4596,   Sec.   7,  Last  Act 
March  4,  1915,  38  Stat.  1166. 


1036  Criminal  Law 

of  duty,  or  by  neglect  of  duty,  or  by  reason  of  drunken- 
ness, refuses  or  omits  to  do  any  lawful  act  proper  and 
requisite  to  be  done  by  him  for  preserving  such  vessel 
from  immediate  loss,  destruction,  or  serious  damage,  or 
for  presei'^'ing  any  person  belonging  to  or  on  board  of 
such  ship  from  immediate  danger  to  life  or  limb,  shall, 
for  every  such  offense,  be  deemed  guilty  of  a  misde- 
meanor, punishable  by  imprisonment  for  not  more  than 
twelve  months.® 

§  1346.  Soliciting  seamaji  to  become  a  lodger,  within 
twenty-four  hours  after  anchoring.  If,  within  twenty- 
four  hours  after  the  an'ival  of  any  vessel  at  any  port 
in  the  United  States,  any  person,  then  being  on  board 
such  ship,  solicits  any  seaman  to  become  a  lodger  at 
the  house  of  any  person  letting  lodgings  for  hire,  or 
takes  out  of  such  vessel  any  effect  of  any  seaman,  ex- 
cept under  his  personal  direction,  and  with  the  per- 
mission of  the  master,  he  shall,  for  ever}"  such  offense, 
be  punishable  by  a  fine  of  not  more  than  fifty  dollars, 
or  by  imprisonment  for  not  more  than  three  months.^® 

§  1347.  Unauthorized  person  going  aboard  vessel  be- 
fore landing — Punishment.  Eveiy  person  who,  not  be- 
ing in  the  United  States  service,  and  not  being  duly 
authorized  by  law  for  the  purpose,  goes  on  board  any 
vessel  about  to  arrive  at  the  place  of  her  destination, 
before  her  actual  arrival,  and  before  slie  has  been  com- 
pletely moored,  without  pennission  of  the  master,  shall, 
for  every  such  offense,  be  punish a])lc  by  a  fine  of  not 
more  than  two  hundred  dollars,  and  by  imprisonment 
for  not  more  than  six  months;  and  the  master  of  such 
vessel  may  take  any  such  person  so  going  on  board  into 
custody,  and  deliver  him  up  fortliwith  to  any  constable 
or  police  ofTicer,  to  Ix'  by  him  takon  before  any  justice 

9— R.  S.  4602,  Sec.  54,  Act  .Tuno  10— R.  S.  4607,  Act  .Juno  7,  1872, 

7,  1872,  17  Stat.  274.  17  Rtnt.  276. 


Offenses  Relating  to  Navigation  1037 

of  the  peace,  to  be  dealt  with  according  to  the  provisions 
of  this  act." 

§  1348.  Merchant  marine  violation  of  Act  of  Congress, 
Sept.  7,  1916,  where  no  different  penalty  is  provided. 

Whoever  violates  any  provision  of  this  act,  except  where 
a  different  penalty  is  provided,  shall  be  guilty  of  a  mis- 
demeanor, punishable  by  fine  of  not  to  exceed  $5,000." 

§  1349.  Unauthorized  person  breaking  lock  or  fasten- 
ing on  vessel — Punishment.  If  any  unauthorized  person 
or  persons  shall  wilfully  break,  cut,  pick,  open,  or  re- 
move any  wire,  seal,  lead,  lock,  or  other  fastening  or 
mark  attached  to  any  vessel,  car,  or  other  vehicle,  crate, 
box,  bag,  bale,  basket,  barrel,  bundle,  cask,  trunk,  pack- 
age, or  parcel,  or  anything  whatsoever,  under  and  by 
virtue  of  this  title  and  regulations  authorized  by  it, 
or  any  other  law,  or  shall  affix  or  attach,  or  any  way 
wilfully  aid,  assist,  or  encourage  the  affixing  or  attach- 
ing, by  wire  or  otherwise,  to  any  vessel,  car,  or  other 
vehicle,  or  to  any  crate,  box,  bale,  barrel,  bag,  basket, 
bundle,  cask,  package,  parcel,  article,  or  thing  of  any 
kind,  any  seal,  lead,  metal,  or  anything  purporting  to 
be  a  seal  authorized  by  law,  such  person  or  persons 
shall  be  deemed  guilty  of  felony,  and  shall  be  impris- 
oned for  a  term  not  exceeding  five  years,  or  shall  pay 
a  fine  of  not  exceeding  one  thousand  dollars,  or  both, 
at  the  discretion  of  the  court.^^ 

§  1350.  Section  9  of  "Shipping  Act  of  1916"  amended 
as  follows:  "Sec.  9.  That  any  vessel  purchased,  char- 
tered, or  leased  from  the  board,  by  persons  who  are 
citizens  of  the  United  States,  may  be  registered  or  en- 

11— R.  S.  4606,  Sec.  62,  Act  June  13—3105  R.  S.  (19  Stat,  at  Large 

7,  1872,  17  Stat.  276.  248,  Feb.  27,  1877). 

12—39    Stat,   at  Large   738,   Sec. 
32,  Act  Sept.  7,  1916. 


1038  Cbiminal  Law 

rolled  and  licensed,  or  both  registered  and  enrolled  and 
licensed,  as  a  vessel  of  the  United  States  and  entitled  to 
the  benefits  and  privileges  appertaining  thereto:  Pro- 
vided, That  foreign-built  vessels  admitted  to  American 
registry  or  enrollment  and  license  mider  this  act,  and 
vessels  owned  by  any  corporation  in  which  the  United 
States  is  a  stockholder,  and  vessels  sold,  leased,  or  char- 
tered by  the  board  to  any  person  a  citizen  of  the  United 
States,  as  provided  in  this  act,  may  engage  in  the  coast- 
wise trade  of  the  United  States  while  owned,  leased,  or 
chartered  by  such  a  person. 

"Eveiy  vessel  purchased,  chartered,  or  leased  from 
the  board  shall,  unless  otherwise  authorized  by  the 
board,  be  operated  only  under  such  registiy  or  enroll- 
ment and  license.  Such  vessels  while  employed  solely 
as  merchant  vessels  shall  be  subject  to  all  laws,  regula- 
tions, and  liabilities  governing  merchant  vessels,  whether 
the  United  States  be  interested  therein  as  owner,  in 
whole  or  in  part,  or  hold  any  mortgage,  lien  or  other 
interest  therein. 

*'It  shall  be  unlawful  to  sell,  transfer  or  mortgage,  or 
except  under  regulations  prescribed  by  the  board,  to 
charter,  any  vessel  purchased  from  the  board  or  docu- 
mented under  the  laws  of  the  United  States  to  any  per- 
son not  a  citizen  of  the  United  States,  or  to  put  the  same 
under  a  foreign  registry  or  flag,  without  first  obtaining 
the  board's  approval. 

"Any  vessel  chartered,  sold,  transferred  or  mortgaged 
to  a  j)crson  not  a  citizen  of  the  United  States  or  placed 
under  a  foreign  registry  or  Hag,  or  operated  in  viola- 
tion of  any  provision  of  this  section  shall  be  forfeited 
to  the  United  States,  and  whoever  violates  any  provi- 
sion of  this  section  shall  be  guilty  of  a  misdemeanor  and 
subject  to  a  fine  of  not  more  than  $;■),()()()  or  to  imprison- 
ment for  not  more  than  five  years,  or  both."  ^* 

14_Scc.    18,    Act    .Tunc    r,,    1920, 
41  Stat.  994. 


Offenses  Relating  to  Navigation  1039 

§  1351.  Unlawful  to  advance  wages  to  seamen — Punish- 
ment. Sec.  32.  That  paragraph  (a)  of  section  10  of  the 
act  entitled  ''An  act  to  remove  certain  burdens  .on  the 
American  merchant  marine  and  encourage  the  American 
foreign  carrying  trade,  and  for  other  purposes,"  ap- 
proved June  26,  1884,  as  amended,  is  hereby  amended  to 
read  as  follows: 

"Sec.  10.  (a)  That  it  shall  be,  and  is  hereby,  made  un- 
lawful in  any  case  to  pay  any  seaman  wages  in  advance 
of  the  time  when  he  has  actually  earned  the  same,  or  to 
pay  such  advance  wages,  or  to  make  any  order,  or  note,  or 
other  evidence  of  indebtedness  therefor  to  any  other  per- 
son, or  to  pay  any  person,  for  the  shipment  of  seamen 
when  payment  is  deducted  or  to  be  deducted  from  a  sea- 
man's wages.  Any  person  violating  any  of  the  foregoing 
provisions  of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  shall  be  punished  by  a 
fine  of  not  less  than  $25  nor  more  than  $100,  and  may 
also  be  imprisoned  for  a  period  of  not  exceeding  six 
months,  at  the  discretion  of  the  court.  The  payment  of 
such  advance  wages  or  allotment,  whether  made  within 
or  without  the  United  States  or  territory  subject  to  the 
jurisdiction  thereof,  shall  in  no  case  except  as  herein 
provided  absolve  the  vessel  or  the  master  or  the  owner 
thereof  from  the  full  payment  of  wages  after  the  same 
shall  have  been  actually  earned,  and  shall  be  no  defense 
to  a  libel  suit  or  action  for  the  recovery  of  such  wages. 
If  any  person  shall  demand  or  receive,  either  directly 
or  indirectly,  from  any  seaman  or  other  person  seek- 
ing employment  as  seaman,  or  from  any  person  on  his 
behalf,  any  remuneration  whatever  for  providing  him 
with  employment,  he  shall  for  every  such  offense  be 
deemed  guilty  of  a  misdemeanor  and  shall  be  imprisoned 
not  more  than  six  months  or  fined  not  more  than  $500. ' '  " 

15— Act   June    5,    1920,   41    Stat. 
1007. 


1040  Criminal  Law 

§  1352.  Soldiers'  and  Sailors'  Civil  Relief  Act— Pun- 
ishment for  false  affidavits.  Be  it  enacted  by  the  senate 
and  house  of  representatives  of  the  United  States  of 
America  in  congress  assembled,  That  where  any  judg- 
ment has  been  entered  since  March  8,  1918,  in  any  ac- 
tion or  proceeding  commenced  in  any  court  where  there 
was  a  failure  to  file  in  such  action  the  affidavits  required 
by  section  200  of  article  2  of  the  act,  approved  March  8, 

1918,  entitled  **An  act  to  extend  protection  to  the  civil 
rights  of  members  of  the  militaiy  and  naval  establish- 
ments of  the  United  States  engaged  in  the  present  war" 
(Fortieth  Statutes  at  Large,  page  440),  the  plaintiff, 
after  such  notice  as  the  court  may  prescribe,  may  file 
an  affidavit  stating  that  the  defendant,  or  defendants, 
in  default  in  such  judgments,  are  not  at  the  time  of  such 
filing,  and  were  not  at  the  time  of  the  entry  of  such 
judgment,  in  the  naval  or  military  service  of  the  United 
States,  and  upon  the  filing  of  such  affidavit  the  court 
may  enter  an  order  that  such  judgment,  if  otherwise 
legal,  shall  stand  and  be  effective  as  of  the  date  of  the 
entry  of  such  judgment  as  if  such  affidavit  had  been 
duly  filed.  Any  person  who  shall  make  or  use  such  an 
affidavit  as  aforesaid,  knowing  it  to  be  false,  shall  be 
punishable  by  imprisonment  not  to  exceed  two  years  or 
by  fine  not  to  exceed  $5,000,  or  both,  in  the  discretion 
of  the  court.^® 

§  1353.  Failing  to  go  to  port  of  destination.  If  the 

(nviior,  master,  or  i)erson  in  charge  of  any  vessel,  car,  or 
other  vehicle  so  sealed,  shall  not  proceed  to  the  port  or 
place  of  destination  thereof  named  jn  the  manifest  of 
its  cargo,  freight,  or  contents,  and  deliver  such  vessel, 
car,  or  vehicle  to  the  proper  officer  of  the  customs,  or 
shall  dispose  of  the  same  by  sale  or  otherwise,  or  shall 
unload  the  same,  or  any  ])art  thereof,  at  any  other  tlian 

16 — Chap.  55,  approved  Sept.  3, 

1919,  41  Stat.  282. 


Offenses  Relating  to  Navigation  1041 

such  port  or  place,  or  shall  sell  or  dispose  of  the  con- 
tents of  such  vessel,  car,  or  other  vehicle,  or  any  part 
thereof,  before  such  delivery,  he  shall  be  deemed  guilty 
of  felony,  and  on  conviction  thereof,  before  any  court 
of  competent  jurisdiction,  pay  a  fine  not  exceeding  one 
thousand  dollars,  or  shall  be  imprisoned  for  a  term  not 
exceeding  five  years,  or  both,  at  the  discretion  of  the 
court;  and  such  vessel,  car,  or  other  vehicle,  with  its 
contents,  shall  be  forfeited  to  the  United  States,  and 
may  be  seized  wherever  found  within  the  United  States, 
and  disposed  of  and  sold  as  in  other  cases  of  forfeiture. 
Nothing  in  this  section,  however,  shall  be  construed  to 
prevent  sales  of  cargo,  in  whole  or  in  part,  prior  to 
arrival,  to  be  delivered  as  per  manifest,  and  after  due 
inspection." 

§  1354.  Steamers  running  on  rivers  must  furnish  stair- 
ways. Every  such  steam-vessel  carrying  passengers  on 
the  main-deck  shall  be  provided  with  permanent  stair- 
ways and  other  sufficient  means,  convenient  to  the  pas- 
sengers, for  their  escape  to  the  upper  deck,  in  case  of 
the  vessel  sinking  or  of  other  accident  endangering  life; 
and  in  the  stowage  of  freight  upon  such  deck,  where 
passengers  are  carried,  gangways  or  passages,  sufficiently 
large  to  allow  persons  to  pass  freely  through  them,  shall 
be  left  open  both  fore  and  aft  of  the  vessel,  and  also  to 
and  along  the  guards  on  each  side.^® 

§  1355.  Officers  of  ships  under  Act  December  31,  1792, 
making  false  register — Penalty.  Every  collector  or  offi- 
cer who  knowingly  makes,  or  is  concerned  in  making, 
any  false  register  or  record,  or  who  knowingly  grants 
or  is  concerned  in  granting,  any  false  certificate  of  reg- 
istiy  or  record  of  or  for  any  vessel,  or  any  other  false 
document  whatever  touching  the  same,  contrary  to  the 

17—3104    E.    S.,    Aet    June    27,  18— E.  S.  4484,  Act  Feb.  28, 1871, 

1864,  13   Stat.   197.  16  Stat.  443. 

C.  L.— 66 


1042  Criminal  Law 

true  intent  and  meaning  of  this  title,  or  who  designedly 
takes  any  other  or  greater  fees  than  are  by  this  title 
allowed,  or  who  receives  any  voluntary  reward  or  gratu- 
ity for  any  of  the  services  performed,  pursuant  thereto; 
and  every  surveyor  or  other  person  appointed  to  meas- 
ure any  vessel,  who  wilfully  delivers  to  any  collector  or 
naval  officer  a  false  description  of  such  vessel,  to  be 
registered  or  recorded,  shall  be  punishable  by  a  fine  of 
one  thousand  dollars,  and  be  rendered  incapable  of  serv- 
ing in  any  office  of  trust  or  profit  under  the  United 
States.i^ 

§  1356.  Officers  of  ships  under  Act  December  31,  1792 
— Neglecting  to  perform  duty — Penalty.  If  any  person 
authorized  and  required  by  this  title  to  perform,  as  an 
officer,  any  act  or  thing,  wilfully  neglects  to  do  or  per- 
fonn  the  same  according  to  the  true  intent  and  mean- 
ing of  this  title,  he  shall,  if  not  subject  to  the  penalty 
and  disqualification  prescribed  in  the  preceding  section 
(1355  Rev.  Stat.  4187),  be  punishable  by  a  fine  of  five 
hundred  dollars  for  the  first  offense,  and  by  a  like  fine 
for  the  second  offense,  and  shall  thenceforth  be  rendered 
incapable  of  holding  any  office  of  trust  or  profit  under 
the  United  States.^o 

§  1357.  Sending  any  American  ship  to  sea  in  unsea- 
worthy  condition,  etc. — Punishment.  The  inspectors  in 
their  report  shall  also  stkte  whether  in  their  opinion  the 
vessel  was  sent  to  sea  unsuitably  provided  in  au}^  im- 
portant or  essential  particular,  l)y  neglect  or  design,  or 
through  mistake  or  accidciil,  and  in  cisc  it  was  by  neglect 
or  design,  and  the  consular  oflicor  api)r()ves  of  such  find- 
ing, he  shall  discharge  such  of  the  crew  as  request  it, 
and  shall  recjuire  the  payment  by  the  master  of  one 
month's  wages  for  each  seaman  over  .-md  above  the  wages 

19— R.  H.  4187,  Act  Dec.  .31,1792,  20— J{.  H.  4188,  1  St.nt.  298. 

1  Stat.  298. 


Offenses  Relating  to  Navigation  1043 

then  due,  or  sufficient  money  for  the  return  of  such  of 
the  crew  as  desire  to  be  discharged  to  the  nearest  and 
most  convenient  port  of  the  United  States,  or  by  fur- 
nishing the  seamen  who  so  desire  to  be  discharged  with 
employment  on  a  ship  agreed  to  by  them.  But  if  in  the 
opinion  of  the  inspectors  the  defects  or  deficiencies 
found  to  exist  have  been  the  result  of  mistake  or  acci- 
dent, and  could  not,  in  the  exercise  of  ordinary  care, 
have  been  known  and  provided  against  before  the  sail- 
ing of  the  vessel,  and  the  master  shall  in  a  reasonable 
time  remove  or  remedy  the  causes  of  complaint,  then  the 
crew  shall  remain  and  discharge  their  duty.  If  any 
person  knowingly  sends  or  attempts  to  send  or  is  party 
to  the  sending  or  attempting  to  send  an  American  ship 
to  sea,  in  the  foreign  or  coastwise  trade,  in  such  an  un- 
seaworthy  state  that  the  life  of  any  person  is  likely  to 
be  thereby  endangered,  he  shall  be  punished  by  a  fine 
not  to  exceed  one  thousand  dollars  or  by  imprisonment 
not  to  exceed  five  years,  or  both,  at  the  discretion  of  the 
court,  unless  he  proves  that  either  he  used  all  reason- 
able means  to  insure  her  being  sent  to  sea  in  a  seaworthy 
state,  or  that  her  going  to  sea  in  an  unseaworthy  state 
was,  under  the  circumstances,  reasonable  and  justifiable, 
and  for  the  purposes  of  giving  that  proof  he  may  give 
evidence  in  the  same  manner  as  any  other  witness.^^ 

§  1358.  Master  who  takes  on  board  vessel  more  pas- 
sengers than  stated  in  certificate.  It  shall  not  be  law- 
ful to  take  on  board  of  any  vessel  a  greater  number  of 
passengers  than  is  stated  in  the  certificate  of  inspection, 
and  for  eveiy  violation  of  this  provision  the  master  or 
owner  shall  be  liable  to  any  person  suing  for  the  same 
to  forfeit  the  amount  of  passage  money  and  $10  for  each 
passenger  beyond  the  number  allowed.  The  master  or 
owner  of  the  vessel,  or  either  or  any  of  them,  who  shall 

21— R.  S.  4561,  Sec.  11,  Act  Dec. 
21,  1898,  30  Stat.  758. 


1044  Criminal  Law 

knowingly  violate  this  provision  shall  be  liable  to  a  fine 
of  not  more  than  $100  or  imprisonment  of  not  more  than 
thirty  days,  or  both.*^^ 

§  1359.  Captain  must  assign  space  to  deck  passengers. 

The  captain  or  mate  of  eveiy  such  steam-vessel  carry- 
ing passengers  upon  the  main-deck  shall  assign  to  all 
deck-passengers,  when  taking  passage,  the  space  on  deck 
they  may  occupy  during  the  voyage,  and  such  space 
shall  not  thereafter  be  occupied  by  freight,  nor  over- 
crowded by  other  persons,  nor  shall  freight  be  stowed 
about  the  boilers  or  machinery,  in  such  a  manner  as  to 
obstruct  or  prevent  the  engineer  from  readily  attending 
to  his  duties.^^ 

§  1360.  Failure  to  provide  accommodations  as  provided 
in  preceding  sections — Punishment.  For  every  violatioi) 
of  the  provisions  of  the  preceding  sections  [Sees.  1354- 
1359]  the  owners  of  the  vessels  shall  be  punished  by  a  fine 
of  three  hundred  dollars.^* 

§  1361.  River  steamers  carrying  passengers  must  pro- 
vide life  preserver.  Every  such  steam-vessel  carrying 
passengers  shall  also  be  provided  with  a  good  life  pre- 
server, made  of  suitable  material,  for  every  cabin  pas- 
senger for  which  she  will  have  accommodation,  and  also 
a  good  life-preserver  or  float  for  each  deck  or  other  class 
passenger  which  the  inspector's  certificate  shall  allow 
her  to  carry,  including  tlio  officers  and  crew;  which  life 
prescrv'crs  or  floats  sliall  be  kept  in  convenient  and  acces- 
sible phices  on  sucli  vessel  in  readiness  for  inunediate  use 
in  case  of  accident." 

§  1362.  Steamers  carrying  passengers  at  night  must 
carry  suitable  number  watchmen.  Every  steamer  cariy- 
iiig  j);i.ss('iig('rs  (luring  the  ui.L'lil  tinu'  shall  koc])  ;i  suit- 

22— H.   H.   446.'),  Sec   2,   Act    FrI..  Ii4— 1{.  S.  44.S(;,  Act,  ]V1>.  2H,  J871, 

14,   1917,  39   Stat.  918.  IG   Stat.   443. 

23— H.  S.  448.'5,  Art  Kcb.  128,  1H71,  25—11.  S.  4482,  Act  Fob.  28,  1871, 

16  Stat.  443.  16  Stat.  443. 


Offenses  Relating  to  Navigation  1045 

able  number  of  watchmen  in  the  cabins,  and  on  each  deck, 
to  guard  against  fire  or  other  dangers,  and  to  give  alarm 
in  case  of  accident  or  disaster.^^ 

§  1363.  Neglecting  to  keep  watchmen— Fine  of  $1,000. 
For  any  neglect  to  keep  the  watchmen  required  by  the 
preceding  section  [Sec.  1362],  the  license  of  the  officer 
in  charge  of  the  vessel  for  the  time  being  shall  be  re- 
voked; and  every  owner  of  such  vessel  who  neglects  or 
refuses  to  furnish  the  number  of  men  necessary  to  keep 
watch  as  required,  shall  be  fined  one  thousand  dollars 


27 


§  1364.  Manner  of  packing  explosives.  All  gunpowder, 
nitro-glycerine,  camphene,  naptha,  benzine,  benzole, 
coal-oil,  crude  or  refined  petroleum,  oil  of  vitriol,  nitric 
or  other  chemical  acids,  oil  or  spirits  of  turpentine, 
friction  matches,  and  all  other  articles  of  like  character, 
when  packed  or  put  up  for  shipment,  shall  be  securely 
packed  and  put  up  separately  from  each  other  and  from 
all  other  articles;  and  the  package,  box,  cask,  o-  other 
vessel  containing  the  same  shall  be  distinctly  ma  ked  on 
the  outside  with  the  name  or  description  of  the  article 
contained  therein.^® 

§  1365.  Failure  to  ship  explosives  as  provided  by  the 
preceding  section — Punishment.  Every  person  who  packs 
or  puts  up,  or  causes  to  be  packed  or  put  up  for 
shipment,  any  gunpowder,  nitro-glycerine,  camphene, 
naphtha,  benzine,  benzole,  coal-oil,  crude  or  refined  petro- 
leum, oil  of  vitriol,  nitric  or  other  chemical  acids,  oil 
or  spirits  of  turpentine,  friction-matches  or  other  articles 
of  like  character  otherwise  than  as  directed  by  the  pre- 
ceding section  [Sec.  1364]  or  who  knowingly  ships  or  at- 
tempts to  ship  the  same,  or  delivers  the  same  to  any  such 

26— E.  S.  4477,  Act  Feb.  28, 1871,    28— E.  S.  4475,  Act  Feb.  28,  1871, 

16  Stat.  442.  16  Stat.  442. 

27— R.  S.  4478,  Act  Feb.  28,  1871, 
16  Stat.  442. 


1046  Criminal  Law 

vessel  as  stores,  unless  duly  packed  and  marked,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  punished  by 
fine  not  exceeding  two  thousand  dollars,  or  imprison- 
ment not  exceeding  eighteen  months,  or  both;  one-half 
of  the  fine  to  go  to  the  informer,  and  the  articles  to  be 
liable  to  seizure  and  forfeiture.*^* 

§  1366.  Charges  found  by  inspectors  and  the  wages 
due — Must  be  paid  by  master.  The  master  shall  pay  all 
such  reasonable  charges  for  inspection  under  such  com- 
plaint as  shall  be  officially  certified  to  him  under  the 
hand  of  the  consul  or  commercial  agent;  but  in  case 
the  inspectors  report  that  the  complaint  is  without  any 
good  and  sufficient  cause,  the  master  may  retain  from 
the  wages  of  the  complainants,  in  proportion  to  the  pay 
of  each,  the  amount  of  such  charges,  with  such  reason- 
able damages  for  detention  on  that  account  as  the  consul 
or  commercial  agent  directing  the  inquiry  may  officially 
certify.^** 

§1367.  Punishment  for  failing  to  pay  wages,  etc. 
Evc'iy  master  who  refuses  to  pay  such  wages  and  charges 
shall  be  liable  to  each  person  injured  thereby  in  damages 
to  be  recovered  in  any  court  of  the  United  States,  in  the 
district  where  such  delinquent  may  reside  or  be  found, 
and  in  addition  thereto  be  punished  by  a  fine  of  one  hun- 
dred dolhirs  for  each  offense.^^ 

§  1368.  Inspector  making  false  certificate  touching 
steam  vessel  as  to  huU,  boilers,  etc. — Penalty.  Every  in- 
spector who  wilfully  cei-tifics  falsely  touching  any  steam- 
vessel,  as  to  her  hull,  .■iccoinmod.itioiis,  boilers,  engines, 
inar-hiiiciy,  or  their  ;i|(]iur1ciiaiic('s,  or  niiy  of  Ikm-  (Mjui])- 

29— T?.  S.  4476,  Act  Feb.  28,  1871,  31— R.  S.  45G3,  Act  ,Tuly  30,  1840, 

16  Stat.  442.  .G  Stat.  396. 

30— R.  8.  4562,  Act  .Tuly  20,  1840, 
5  Stat.  396. 


Offenses  Relating  to  Navigation  1047 

ments,  or  any  matter  or  thing  contained  in  any  certifi- 
cate signed  and  sworn  to  by  him,  shall  be  punished  by 
fine  of  not  more  than  five  hundred  dollars,  or  imprison- 
ment for  not  more  than  six  months,  or  both.''^ 

§  1369.  Changing  any  license  issued  by  inspector  under 
Act  March  23,  1900.  That  every  master,  chief  mate,  engi- 
neer and  pilot  who  receives  a  license,  shall,  before  en- 
tering upon  his  duties,  make  oath  before  one  of  the 
inspectors  herein  provided  for,  to  be  recorded  with  the 
certificate,  that  he  will  faithfully  and  honestly,  accord- 
ing to  his  best  skill  and  judgment,  without  concealment 
or  reservation,  perform  all  the  duties  required  of  him 
by  law.  Ever}^  applicant  for  license  as  either  master, 
mate,  pilot,  or  engineer  under  the  provisions  of  this  title 
shall  make  and  subscribe  to  an  oath  or  affirmation,  be- 
fore one  of  the  inspectors  referred  to  in  this  title,  to 
the  truth  of  all  the  statements  set  forth  in  his  appli- 
cation for  such  license.  Any  person  who  shall  make 
or  subscribe  to  any  oath  or  affirmation  authorized  in 
this  title  and  knowing  the  same  to  be  false  shall  be 
deemed  guilty  of  perjury.  Eveiy  licensed  master,  mate, 
pilot,  or  engineer  who  shall  change,  by  addition,  inter- 
polation, or  erasure  of  any  kind,  any  certificate  or  license 
issued  by  any  inspector  or  inspectors  referred  to  in  this 
title,  shall,  for  every  such  offense,  upon  conviction,  be 
punished  by  a  fine  of  not  more  than  five  hundred  dol- 
lars or  by  imprisonment  at  hard  labor  for  a  temi  not 
exceeding  three  years.^® 

§  1370.  Penalty  for  using  unstamped  and  inspected 
steel  plates  in  steam  vessels.  Every  person  who  con- 
structs a  boiler,  or  steam-pipe  connecting  the  boilers, 
to  be  used  on  steam-vessels,  of  iron  or  steel  plates  which 
have  not  been  duly  stamped  and  inspected  according  to 

32— K.  S.  4425,  Act  Feb.  28,  1871,    33— E.  S.  4446,  31  Stat.  50. 
16  Stat.  450. 


1048  Criminal  Law 

the  provisions  of  this  title,  or  who  knowingly  uses  any 
defective,  bad,  or  faulty  iron  or  steel  in  the  construc- 
tion of  such  boilers;  or  who  drifts  any  rivet-hole  to 
make  it  come  fair;  or  \vho  delivers  any  such  boiler  for 
use,  kno^\^ng  it  to  be  imperfect  in  its  flues,  flanging, 
riveting,  bracing,  or  in  any  other  of  its  parts,  shall  be 
fined  one  thousand  dollars,  one-half  for  the  use  of  the 
informer.  Nothing  in  this  title  shall  be  so  construed 
as  to  prevent  from  being  used,  on  any  steamer,  any 
boiler  or  steam-generator  which  may  not  be  constructed 
of  riveted  iron  or  steel  plates,  when  the  board  of  super- 
vising inspectors  have  satisfactoiy  evidence  that  such 
boiler  or  steam-generator  is  equal  in  strength,  and  as 
safe  from  explosion,  as  a  boiler  of  the  best  quality  con- 
structed of  riveted  iron  or  steel  plates.  Provided,  how- 
ever, that  the  Secretary  of  the  Treasury  may  grant 
permission  to  use  any  boiler  or  steam-generator  not  con- 
structed of  riveted  iron  or  steel  plates  upon  the  certi- 
ficate of  the  supervising  inspector  of  steam-boats  for  the 
district  wherein  such  boiler  or  generator  is  to  be  used, 
and  other  satisfactory  proof  that  the  use  of  the  same 
is  safe  and  efficient;  said  peiTnit  to  be  valid  until  the 
next  regular  meeting  of  the  supei*vising  inspectors  who 
shall  act  thereon.'* 

§  1371.  Counterfeiting  any  stamp  on  steel  plates — Pen- 
alty. Eveiy  person  who  counterfeits,  or  causes  to  be 
counterfeited,  any  of  the  marks  or  stamps  prescribed 
for  boiler  iron  or  steel  plates;  or  who  designedly  stamps 
or  causes  to  be  stampiMl  falsely,  any  such  plates;  and 
every  person  who  stamps  or  marks  or  causes  to  be 
stamped  or  marked  any  such  iron  or  steel  plates  with 
name  or  trade-mark  of  another,  with  the  intent  to  mis- 
lead or  deceive,  shall  be  fined  two  thousand  dollars,  one- 
half  to  the  use  of  the   informer,  and   may,   in   addition 

34— R.  8.  4429,  Act  Auk-  7,  1882, 
22  Rtnt.  no. 


Offenses  Eelating  to  Navigation  1049 

thereto,  at  the  discretion  of  the  court,  be  imprisoned  not 
exceeding  two  years.^^ 

§  1372.  Affixing  any  false,  forged,  fraudulent,  spurious 
or  counterfeit  stamp  on  steel  plate  in  steam  vessel — 
Penalty.  Every  iron  or  steel  plate  used  in  the  construc- 
tion of  steam-boat  boilers,  and  which  shall  be  subject  to 
a  tensil  strain,  shall  be  inspected  in  such  manner  as 
shall  be  prescribed  by  the  board  of  supervising  inspec- 
tors and  approved  by  the  Secretary  of  the  Treasury,  so 
as  to  enable  the  inspectors  to  ascertain  its  tensil  strength, 
homogeneousness,  toughness,  and  ability  to  withstand  the 
effect  of  repeated  heating  and  cooling;  and  no  iron  or 
steel  plate  shall  be  used  in  the  construction  of  such 
boilers  which  has  not  been  inspected  and  approved  un- 
der those  rules.  And  the  Supervising  Inspector-General 
may,  under  the  direction  of  the  Secretaiy  of  the  Treas- 
ury, detail  assistant  inspectors  from  any  local  inspec- 
tion district  where  assistant  inspectors  are  employed,  to 
inspect  iron  or  steel  boiler  plates  at  the  mills  where  the 
same  are  manufactured;  and  if  the  plates  are  found  in 
accordance  with  the  rules  of  the  supervising  inspectors, 
the  assistant  inspector  shall  stamp  the  same  with  the 
initials  of  his  name,  followed  by  the  letters  and  words, 
*'U.  S.  Assistant  Inspector;"  and  material  so  stamped 
shall  be  accepted  by  the  local  inspectors  in  the  districts 
where  such  material  is  to  be  manufactured  into  marine 
boilers  as  being  in  full  compliance  with  the  require- 
ments of  this  section  regarding  the  inspection  of  boiler 
plates;  it  being  further  provided  that  any  person  who 
affixes  any  false,  forged,  fraudulent,  spurious,  or  coun- 
terfeit of  the  stamp  herein  authorized  to  be  put  on  by 
an  assistant  inspector,  shall  be  deemed  guilty  of  a  fel- 
ony, and  shall  be  fined  not  less  than  one  thousand  dol- 

35— K.  S.  4432,  Act  Feb.  28,  1871, 
16  Stat.  452. 


1050  Criminal  Law 

lars,  nor  more  than  five  thousand  dollars,  and  imprisoned 
not  less  than  two  years  nor  more  than  five  years. 

§  1373.  Any  officer,  receiver,  etc.,  common  carrier  by 
water  disclosing  information.  It  shall  be  unlawful  for 
any  common  carrier  by  water  or  other  person  subject 
to  this  act,  or  any  officer,  receiver,  trustee,  lessee,  agent, 
or  employee  of  such  carrier  or  person,  or  for  any  other 
person  to  receive  information,  knowingly  to  disclose  to 
or  permit  to  be  acquired  by  any  person  other  than  the 
shipper  or  consignee,  without  the  consent  of  such  shipper 
or  consignee,  any  information  concerning  the  nature, 
kind,  quantity,  destination,  consignee,  or  routing  of  any 
property  tendered  or  delivered  to  such  common  carrier 
or  other  person  subject  to  this  act  for  transportation  in 
interstate  or  foreign  commerce,  which  information  may 
be  used  to  the  detriment  or  prejudice  of  such  shipper 
or  consignee,  or  which  may  improperly  disclose  his  busi- 
ness transactions  to  a  competitor,  or  which  may  be  used 
to  the  detriment  or  prejudice  of  any  carrier;  and  it  shall 
also  be  unlawful  for  any  person  to  solicit  or  knowingly 
receive  any  such  information  which  may  be  so  used. 

Nothing  in  this  act  shall  bo  construed  to  prevent  the 
giving  of  such  information  in  response  to  any  legal 
process  issued  under  the  authority  of  any  court,  or  to 
any  officer  or  agent  of  the  government  of  the  United 
States,  or  of  any  state,  territory,  district,  or  possession 
thereof,  in  the  exercise  of  his  powers,  or  to  any  officer  or 
other  (Inly  authorized  person  seeking  such  information 
for  the  prosecution  of  persons  charged  with  or  suspected 
of  crime,  or  to  another  can-ici",  or  ils  duly  autliorized 
agent,  for  the  purpose  of  adjusting  iiiiil  ual  traffic  accounts 
ill  the  ordinary  courts  ol"  liusiiicss  of  such  carriers  (see 
Sec.  705). 3« 

30— Soc.  20,  Aft  Sept.  7,  IDlfi,  ?,'.) 
Stat.   7.35. 


Offenses  Eelating  to  Navigation  1051 

§  1374.     Interfering  or  obstructing  lighthouse  board. 

That  it  shall  be  unlawful  for  any  person  to  obstruct 
or  interfere  with  any  aid  to  navigation  established  or 
maintained  in  the  lighthouse  establishment  under  the 
lighthouse  board,  or  to  anchor  any  vessel  in  any  of  the 
navigable  waters  of  the  United  States,  so  as  to  obstruct 
or  interfere  with  range  lights  maintained  therein,  and 
any  person  violating  the  provisions  of  this  section  shall 
be  deemed  guilty  of  a  misdemeanor  and  be  subject  to  a 
fine  not  exceeding  the  sum  of  five  hundred  dollars  for 
each  offense,  and  each  day  during  which  such  violation 
shall  continue  shall  be  considered  as  a  new  offense.^' 

§  1375.  Refusal  to  maintain  lights  on  bridges,  etc.  That 
any  person,  firm,  company,  or  corporation  required  by 
law  to  maintain  a  light  or  lights  upon  any  bridge  or  abut- 
ments over  or  in  any  navigable  waters,  who  shall  fail  or 
refuse  to  maintain  such  light  or  lights,  or  to  obey  any  of 
the  lawful  rules  and  regulations  relating  to  the  same, 
shall  be  deemed  guilty  of  a  misdemeanor  and  be  subject 
to  a  fine  not  exceeding  the  sum  of  one  hundred  dollars  for 
each  offense,  and  each  day  during  which  such  violation 
shall  continue  shall  be  considered  a  new  offense.^^ 

§  1376.  Lighthouse  jurisdiction,  regulations,  etc.  That 
the  jurisdiction  of  the  ligthhouse  board,  created  by  the 
act  entitled  "An  act  making  appropriations  for  light- 
houses, light-boats,  buoys  and  so  forth  and  providing  for 
the  erection  and  establishment  of  the  same  and  for  other 
purposes,"  approved  August  thirty-first,  eighteen  hun- 
dred and  fifty-two,  is  hereby  extended  over  the  Missis- 
sippi, Ohio,  and  Missouri  Rivers,  for  the  establishment  of 
such  beacon-lights,  day-beacons,  and  buoys  as  may  be 
necessary  for  the  use  of  vessels  navigating  those  streams; 
and  for  this  purpose  the  said  board  is  hereby  required  to 

37— Sec.  6,  Act  May  14,  1908,  35  38— Sec.  5,  Act  May  14,  1908,  35 

Stat.  162.  Stat.   162. 


1052  Criminal  Law 

divide  the  designated  rivers  into  one  or  two  additional 
lighthouse  districts,  to  be  in  all  respects  similar  to  the 
already  existing  lighthouse  districts;  and  is  hereby  au- 
thorized to  lease  the  necessary  ground  for  all  such  lights 
and  beacons  as  are  used  to  point  out  changeable  chan- 
nels, and  which  in  consequence  can  not  be  made  perma- 
nent.*® 

§  1377.  Using  vessel  in  coast-guard  service  for  private 
purpose— Punishment.  That  any  person  using  any  vessel 
in  the  coast-guard  service  for  private  purposes,  in  viola- 
tion of  law,  shall  upon  conviction  thereof  be  fined  one 
thousand  dollars." 

§  1378.  Prima  facie  evidence  to  true  possession  of 
sponge  less  than  five  inches  in  diameter.  That  the  pres- 
ence of  sponges  of  a  diameter  of  less  than  five  inches  on 
any  vessel  or  boat  of  the  United  States  engaged  in  spong- 
ing in  the  water  of  the  Gulf  of  Mexico  or  the  Straits  of 
Florida  outside  of  state  territorial  limits,  or  the  pos- 
session of  any  sponges  of  less  than  the  said  diameter 
sold  or  delivered  by  such  vessels,  shall  be  prima  facie  evi- 
dence of  a  violation  of  this  Act.'*^ 

§  1379.  Courts  where  violation  may  be  prosecuted  for 
selling  or  taking  sponges.  That  any  violation  of  this  act 
sliall  he  prosecuted  in  llie  district  court  of  the  United 
States  of  the  district  wherein  the  offender  is  found  or 
into  wliicli  lie  is  first  brought.*'^ 

§  1380.  Selling  or  taking  sponges  is  criminal — Punish- 
ment. Tliat  every  person,  i)nrtiier.ship,  or  association 
guilly  of  a  violation  of  this  act  shall  be  liable  to  a  fine 

39— Act   June   23,   1874,   18   Stat.  41— Sec  2,  Act  Auff.  15,  1S)14,  38 

220.  .Stat.  G92. 

40_Sec.  n,  Jan.  28,  linr,,  :!H  Stat.  42— Sec.  4,  Act  Aiif,'.  in,  1!>14,  38 

802.  Stilt.   r)92. 


Offenses  Relating  to  Navigation  1053 

of  not  more  than  $500,  and  in  addition  such  fine  shall  be 
a  lien  against  the  vessel  or  boat  on  which  the  offense  is 
committed,  and  said  vessel  or  boat  shall  be  seized  and 
proceeded  against  by  process  of  libel  in  any  court  having 
jurisdiction  on  the  offense.'*^ 

§  1381.  Unlawful,  citizen  of  United  States  to  take  or 
catch  sponges  less  than  five  inches  in  diameter.  That  on 
and  after  the  approval  of  this  act  it  shall  be  unlawful  for 
any  citizen  of  the  United  States,  or  person  owing  duty  of 
obedience  to  the  laws  of  the  United  States,  or  any  boat  or 
vessel  of  the  United  States,  or  person  belonging  to  or  on 
any  such  boat  or  vessel,  to  take  or  catch,  by  any  means  or 
method,  in  the  waters  of  the  Gulf  of  Mexico  or  the  Straits 
of  Florida  outside  of  state  territorial  limits,  any  commer- 
cial sponges  measuring  when  wet  less  than  five  inches  in 
their  maximum  diameter,  or  for  any  person  or  vessel  to 
land,  deliver,  cure,  offer  for  sale,  or  have  in  possession  at 
any  port  or  place  in  the  United  States,  or  on  any  boat  or 
vessel  of  the  United  States,  any  such  commercial 
sponges.** 

§  1382.  Use  of  navigable  waters  to  be  regulated  by 
Secretary  of  War.  That  section  four  of  the  river  and 
harbor  act  of  August  eighteenth,  eighteen  hundred  and 
ninety-four,  as  amended  by  section  eleven  of  the  river 
and  harbor  act  of  June  thirteenth,  nineteen  hundred 
and  two,  be,  and  is  hereby,  amended  so  as  to  read  as 
follows : 

' '  Sec.  4.  That  it  shall  be  the  duty  of  the  Secretary  of 
War  to  prescribe  such  rules  and  regulations  for  the  use, 
administration,  and  navigation  of  the  navigable  waters 
of  the  United  States  as  in  his  judgment  the  public  neces- 
sity may  require  for  the  protection  of  life  and  property, 
or  of  operations  of  the  United  States  in  channel  improve- 
ment, covering  all  matters  not  specifically  delegated  by 

43— Sec.  3,  Act  Aug.  15,  1914,  38  44— Sec.  1,  Act  Aug.  15,  1914,  38 
Stat.  692.  Stat.  692. 


1054  Criminal  Law 

law  to  some  other  executive  department.  Such  regula- 
tions shall  be  posted,  in  conspicuous  and  appropriate 
places,  for  the  information  of  the  public ;  and  every  per- 
son and  eveiy  corporation  which  shall  violate  such  regu- 
lations shall  be  deemed  guilty  of  a  misdemeanor  and,  on 
conviction  thereof  in  any  district  court  of  the  United 
States  within  whose  territorial  jurisdiction  such  offense 
may  have  been  committed,  shall  be  punished  by  a  fine 
not  exceeding  $500,  or  by  imprisonment  (in  the  case  of 
a  natural  person)  not  exceeding  six  months,  in  the  dis- 
cretion of  the  court. ' '  *^ 

§1383.  Wilfully  and  unlawfully  injuring  any  pier 
subject  to  fine.  Any  person  who  shall  wilfully  and  unlaw- 
fully injure  any  pier,  breakwater,  or  other  work  of  the 
United  States  for  the  improvement  of  rivers  or  harbors, 
or  navigation  in  the  United  States,  shall,  on  conviction 
thereof,  be  punished  by  a  fine  not  exceeding  one  thou- 
sand dollars.*^ 

§  1384.  Who  by  culpable  negligence  breaks  or  injures 
submarine  cable  guilty  of  misdemeanor.  That  any  person 
who  by  culpable  negligence  shall  break  or  injure  a  sub- 
marine cable  in  such  manner  as  to  interrupt  or  embarrass, 
in  whole  or  in  part,  telegraphic  connnunication,  shall  be 
guilty  of  a  misdemeanor,  and,  on  conviction  iheroof, 
shall  be  liable  to  imprisonment  for  a  term  not  exceeding 
three  months,  or  to  a  fine  not  exceeding  five  hundred  dol- 
lars, or  to  both  fine  and  imprisonment,  at  the  discretion 
of  tli<'  conii.*'^ 

j!^  1385.  A  master  of  vessel  laying  or  repairing  cables 
who  fails  to  observe  rules — Penalty.  Tiiat  the  master 
of  any  vessel  wliicli,  while  engaged  in  laying  or  repairing 

45— Sec.  7,  Act  Aug.  9,  1917,  40  47— Sec.  2,  Act  Feb.  29,  1888,  25 

Stat.    266,   amending   32   Stat.   374,       Stat.  41. 
Sec.  4. 

46— Sec.    3,    Act    Aug.    14,    187G, 
in  Stnt.   139. 


Offenses  Eelating  to  Navigation  1055 

submarine  cables,  shall  fail  to  observe  the  rules  con- 
cerning- signals  that  have  been  or  shall  hereafter  be 
adopted  by  the  parties  to  the  convention  with  a  view  to 
preventing  collisions  at  sea;  or  the  master  of  any  vessel 
that,  perceiving,  or  being  able  to  perceive  the  said  sig- 
nals displayed  upon  a  telegraph  ship  engaged  in  repair- 
ing a  cable,  shall  not  withdraw  to  or  keep  at  distance  of 
at  least  one  nautical  mile;  or  the  master  of  any  vessel 
that  seeing  or  being  able  to  see  buoys  intended  to  mark 
the  position  of  a  cable  when  being  laid  or  when  out  of 
order  or  broken,  shall  not  keep  at  a  distance  of  at  least 
a  quarter  of  a  nautical  mile,  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  thereof,  shall  be  liable  to 
imprisonment  for  a  term  not  exceeding  one  month,  or  to 
a  fine  of  not  exceeding  five  hundred  dollars." 

§  1386.  Person  who  wilfully  breaks  or  injures  a  subma- 
rine cable  guilty  of  misdemeanor.  That  any  person  Avho 
shall  wilfully  and  wrongfully  break  or  injure,  or  to  at- 
tempt to  break  or  injure,  or  who  shall  in  any  manner 
procure,  counsel,  aid,  abet,  or  be  accessory  to  such  break- 
ing or  injury,  or  attempt  to  break  or  injure,  a  submarine 
cable,  in  such  manner  as  to  interrupt  or  embaiTass,  in 
whole  or  in  part,  telegraphic  communication,  shall  be 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof, 
shall  be  liable  to  imprisonment  for  a  term  not  exceeding 
two  years,  or  to  a  fine  not  exceeding  five  thousand  dollars, 
or  to  both  fine  and  imprisonment,  at  the  discretion  of 
the  court.*^ 

§  1387.  Master  of  fishing  vessel  must  keep  at  least  one 
nautical  mile  from  cable.  That  the  master  of  any  fishing 
vessel  who  shall  not  keep  his  implements  or  nets  at  a  dis- 
tance of  at  least  one  nautical  mile  from  a  vessel  engaged 
in  laying  or  repairing  a  cable;  or  the  master  of  any  fish- 

48_See.  4,  Act  Feb.  29,  1888,  25  49— Sec.  1,  Act  Feb.  20,  1888, 
Stat.  41.  25  Stat.  41. 


1056  Criminal  Law 

iiig  vessel  who  shall  not  keep  his  implements  or  nets  at 
a  distance  of  at  least  a  quarter  of  a  nautical  mile  from 
a  buoy  or  buoys  intended  to  mark  the  position  of  a  cable 
when  being  laid  or  when  out  of  order  or  broken,  shall  be 
guilty  of  a  misdemeanor,  and  on  conviction  thereof,  shall 
be  liable  to  imprisonment  for  a  term  not  exceeding  ten 
days,  or  to  a  fine  not  exceeding  two  hundred  and  fifty  dol- 
lars, or  to  both  such  fine  and  imprisonment,  at  the  discre- 
tion of  the  court:  Provided,  however,  That  fishing  ves- 
sels, on  perceiving  or  being  able  to  perceive  the  said  sig- 
nals displayed  on  a  telegraph  ship,  shall  be  allowed  such 
time  as  may  be  necessary  to  obey  the  notice  thus  given, 
not  exceeding  twenty-four  hours,  during  which  period  no 
obstacle  shall  be  placed  in  the  way  of  their  operations.**" 

§  1388.  Definition  of  terms  used  under  act  Feb.  29,  1888. 
That  unless  the  context  of  this  act  otherwise  requires,  the 
term  ''vessel"  shall  be  taken  to  mean  eveiy  description 
of  vessel  used  in  navigation,  in  whatever  way  it  is  pro- 
pelled ;  the  tenii ' '  master ' '  shall  be  taken  to  include  everj^ 
person  having  command  or  charge  of  a  vessel;  and  the 
term  ''person"  to  include  a  body  of  persons,  corporate  or 
incorporate.  The  term  "convention"  shall  be  taken  to 
mean  the  International  Convention  for  the  Protection  of 
Submarine  Cables,  made  at  Paris  on  the  fourteenth  day 
of  May,  eighteen  hundred  and  eighty-four,  and  pro- 
claimed by  the  President  of  the  United  States  on  the 
twenty-second  day  of  May,  eighteen  hundred  and  eighty- 
fivo." 

§  1389.  Unlawful  to  discharge  or  deposit  any  refuse 
matter  in  New  York  harbor.  Tliat  the  placing,  discharg- 
ing, or  depositing,  by  any  jirocess  or  in  any  manner,  of 
refuse,  dirt,  ashes,  cinders,  mud,  sand,  dredgings,  sludge, 
acids,  or  any  other  matter  of  any  kind,  other  than  that 
flowing  from  streets,  sewers,  and  passing  therefrom  in 

."iO— 8ec.  5,  Act  Fob.  29,  1888,  25  51— Sec.    10,    Act   Feb.    29,   1888, 

Slaf,   42.  25  Stat.  42. 


Offenses  Relating  to  Navigation  1057 

a  liquid  state,  in  the  tidal  waters  of  the  harbor  of  New- 
York  or  its  adjacent  or  tributaiy  waters,  or  in  those 
of  Long  Island  Sound,  within  the  limits  which  shall  be 
prescribed  by  the  supervisor  of  the  harbor,  is  hereby 
strictly  forbidden,  and  every  such  act  is  made  a  misde- 
meanor, and  every  person  engaged  in  or  who  shall  aid, 
abet,  authorize,  or  instigate  a  violation  of  this  section, 
shall,  upon  conviction,  be  punishable  by  fine  or  imprison- 
ment, or  both,  such  fine  to  be  not  less  than  two  hundred 
and  fifty  dollars  nor  more  than  two  thousand  five  hun- 
dred dollars,  and  the  imprisonment  to  be  not  less  than 
thirty  days  nor  more  than  one  year,  either  or  both  united, 
as  the  judge  before  whom  conviction  is  obtained  shall 
decide,  one  half  of  said  fine  to  be  paid  to  the  person  or 
persons  giving  information  which  shall  lead  to  conviction 
of  this  misdemeanor.^^ 

§  1390.  Masters  and  engineers  of  vessel  guilty  of  crime 
knowingly  towing  scow  loaded  with  refuse  matter  to  be 
emptied  in  New  York  harbor.  That  any  and  every  mas- 
ter and  engineer,  or  person  or  persons  acting  in  such 
capacity,  respectively,  on  board  of  any  boat  or  vessel,  who 
shall  knowingly  engage  in  towing  any  scow,  boat,  or  ves- 
sel loaded  with  any  such  prohibited  matter  to  any  point 
or  place  of  deposit,  or  discharge  in  the  waters  of  the  har- 
bor of  New  York,  or  its  adjacent,  or  tributary  waters, 
or  in  those  of  Long  Island  Sound,  or  to  any  point  or 
place  elsewhere  than  within  the  limits  defined  and  per- 
mitted by  the  supervisor  of  the  harbor  hereinafter  men- 
tioned, shall  be  deemed  guilty  of  a  violation  of  this  act, 
and  shall,  upon  conviction,  be  punishable  as  hereinbefore 
provided  for  offenses  in  violation  of  section  one  of  this 
act,  and  shall  also  have  his  license  revoked  or  suspended 
for  a  teiTQ  to  be  fixed  by  the  judge  before  whom  tried  and 
convicted.^* 


52— Sec.  1,  Act  June  29,  1888,  25  53— Sec.  2,  Act  June  29,  1888,  25 

Stat.  209.  Stat.  209. 

C.  L.— 67 


1058  Criminal  Law 

§  1391.  Waste  matter  to  be  deposited  in  definite  limits 
in  New  York  harbor — Penalty.  That  all  mud,  dirt,  sand, 
dredgings,  and  material  of  every  kind  and  description 
whatever  taken,  dredged,  or  excavated  from  any  slip,  ba- 
sin, or  shoal  in  the  harbor  of  New  York  or  the  waters  adja- 
cent or  tributaiy  thereto,  and  placed  on  any  boat,  scow,  or 
vessel  for  the  purpose  of  being  taken  or  towed  upon  the 
waters  of  the  harbor  of  New  York  to  a  place  of  deposit, 
shall  be  deposited  and  discharged  at  such  place  or  within 
such  limits  as  shall  be  defined  and  specified  by  the  super- 
visor of  the  harbor,  as  in  the  third  section  of  this  act  pre- 
scribed, and  not  otherwise.  Eveiy  person,  firm,  or  cor- 
poration being  the  owner  of  any  slip,  basin,  or  shoal,  from 
which  such  mud,  dirt,  sand,  dredgings,  and  material  shall 
be  taken,  dredged,  or  excavated,  and  every  person,  finn, 
or  corporation  in  any  manner  engaged  in  the  work  of 
dredging  or  excavating  any  such  slip,  basin,  or  shoal,  or 
of  removing  such  mud,  dirt,  sand,  or  dredgings  there- 
from, shall  severally  be  responsible  for  the  deposit  and 
discharge  of  all  such  mud,  dirt,  sand,  or  dredgings  at 
such  place  or  within  such  limits  so  defined  and  pre- 
scribed by  said  supervisor  of  the  harbor;  and  for  every 
violation  of  the  provisions  of  this  section  the  person 
offending  shall  be  guilty  of  an  offense  against  this  act, 
and  shall  be  punished  by  a  fine  equal  to  the  sum  of  five 
dollars  for  eveiy  cubic  yard  of  mud,  dirt,  sand,  dredg- 
ings, or  material  not  deposited  or  discharged  as  required 
by  this  section.  Any  boat  or  vessel  used  or  employed  in 
violating  any  provision  of  this  act,  shall  be  liable  to  the 
pocnniaiy  penalties  imposed  thereby,  and  may  be  pro- 
ceeded against  summarily  by  way  of  libel  in  any  district 
court  of  the  United  States,  having  jurisdiction  thereof." 

§  1392.  Wilfully  and  knowingly  violating  rules  of  res- 
ervoirs at  headwaters  of  Mississippi — Punishment.  Tliat 

54— Sec.  4,  Act  Juno  29,  1888,  25 
Stat.  210. 


Offenses  Relating  to  Navigation  1059 

it  shall  be  the  duty  of  the  Secretary  of  War  to  prescribe 
such  rules  and  regulations  in  respect  to  the  use  and  ad- 
ministration of  said  reservoirs  as  in  his  judgment  the 
public  interest  and  necessity  may  require;  which  rules 
and  regulations  shall  be  posted  in  some  conspicuous 
place  or  places  for  the  information  of  the  public.  And 
any  person  knowingly  and  wilfully  violating  such  rules 
and  regulations  shall  be  liable  to  a  fine  not  exceeding 
five  hundred  dollars,  or  imprisonment,  not  exceeding  six 
months,  the  same  to  be  enforced  by  prosecution  in  any 
district  court  of  the  United  States  within  whose  terri- 
torial jurisdiction  such  offense  may  have  been  committed. 
And  the  Secretary  of  War  shall  cause  such  gaugings  to 
be  made  at  or  near  Saint  Paul  during  the  annual  opera- 
tion of  said  reservoirs  as  shall  determine  accurately  the 
discharge  at  that  point,  the  cost  of  same  to  be  paid  out  of 
the  annual  appropriation  for  gauging  the  waters  of  the 
Mississippi  River  and  its  tributaries.^^ 

§  1393.  No  obstruction  may  be  made  in  the  navigable 
waters  except  by  act  of  congress.  That  the  creation  of 
any  obstruction,  not  affirmatively  authorized  by  law,  to 
the  navigable  capacity  of  any  waters,  in  respect  of  which 
the  United  States  has  jurisdiction,  is  hereby  prohibited. 
The  continuance  of  any  such  obstiniction,  except  bridges, 
piers,  docks  and  wharves,  and  similar  structures  erected 
for  business  purposes,  whether  heretofore  or  hereafter 
created,  shall  constitute  an  offense  and  each  week's  con- 
tinuance of  any  such  obstruction  shall  be  deemed  a  sepa- 
rate offense.  Every  person  and  every  corporation  which 
shall  be  guilty  of  creating  or  continuing  any  such  unlaw- 
ful obstruction  in  this  act  mentioned,  or  who  shall  violate 
the  provisions  of  the  last  four  preceding  sections  of  this 
act,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  punished  by  a  fine  not  exceed- 

55— Act  Aug.   11,  1888,  25  Stat. 
419. 


1060'  Cbiminal  Law 

ing  five  thousand  dollars,  or  by  imprisonment  (in  the 
case  of  a  natural  person)  not  exceeding  one  year,  or  by 
both  such  punishments,  in  the  discretion  of  the  court,  the 
creating  or  continuing  of  any  unlawful  obstruction  in 
this  act  mentioned  may  be  prevented  and  such  obstruc- 
tion may  be  caused  to  be  removed  by  the  injunction  of 
any  circuit  court  exercising  jurisdiction  in  any  district 
in  which  such  obstruction  may  be  threatened  or  may 
exist;  and  proper  proceedings  in  equity  to  this  end  may 
be  instituted  under  the  direction  of  the  Attorney-General 
of  the  United  States.«« 

§  1394.  Unlawful  to  engage  in  fishing  in  channels  adja- 
cent to  New  York  harbor — Penalty.  It  shall  be  unlawful 
for  any  person  or  persons  to  engage  in  fishing  or  dredg- 
ing for  shell  fish  in  any  of  the  channels  leading  to  and 
from  the  harbor  of  New  York,  or  to  interfere  in  any  way 
with  the  safe  navigation  of  those  channels  by  ocean 
steamships  and  ships  of  deep  draft. 

Any  person  or  persons  violating  the  foregoing  pro- 
visions of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  shall  be  punished  by 
fine  or  imprisonment,  or  both,  such  fine  to  be  not  more 
than  two  hundred  and  fifty  dollars  nor  less  than  fifty 
dollars,  and  the  imprisonment  to  bo  not  more  than  six 
months  nor  less  than  thirty  days,  either  or  both  united, 
as  the  judge  before  whom  conviction  is  obtained  shall 
decide. 

It  shall  be  the  duty  of  the  United  States  supervisor  of 
the  harbor  to  enforce  this  act,  and  the  deputy  inspectors 
of  the  said  supervisor  sliall  have  authority  to  arrest  and 
take  into  custody,  willi  or  williout  process,  any  person 
or  persons  who  may  commit  any  of  the  acts  or  offenses 
prohibited  by  this  act:  Provided,  That  no  person  shall  be 
arrested  without  process  for  any  offense  not  committed  in 

56— Ser.    10,    Act    Sept.    10,    ]H{H), 
2H    Sfnt.    454. 


Offenses  Relating  to  Navigation  1061 

the  presence  of  the  supervisor  or  his  inspector  or  deputy- 
inspectors,  or  either  of  them:  And  provided  further,  That 
whenever  any  such  arrest  is  made  the  person  or  persons 
so  arrested  shall  be  brought  forthwith  before  a  commis- 
sioner, judge,  or  court  of  the  United  States  for  examina- 
tion of  the  offenses  alleged  against  him;  and  such  com- 
missioner, judge,  or  court  shall  proceed  in  respect  thereto 
as  authorized  by  law  in  case  of  crimes  against  the  United 
States.^'' 

§  1395.  Drawbridges  subject  to  rules  of  Secretary  of 
War  and  failure  to  comply  with  them  a  misdemeanor. 

That  it  shall  be  the  duty  of  all  persons  owning,  oper- 
ating, and  tending  the  drawbridges  now  built,  or  which 
may  hereafter  be  built  across  the  navigable  rivers  and 
other  waters  of  the  United  States,  to  open,  or  cause  to  be 
opened,  the  draws  of  such  bridges  under  such  rules  and 
regulations  as  in  the  opinion  of  the  Secretary  of  War  the 
public  interests  require  to  govern  the  opening  of  draw- 
bridges for  the  passage  of  vessels  and  other  water  crafts, 
and  such  rules  and  regulations,  when  so  made  and  pub- 
lished, shall  have  the  force  of  law.  Every  such  person 
who  shall  wilfully  fail  or  refuse  to  open,  or  cause  to  be 
opened,  the  draw  of  any  such  bridge  for  the  passage  of 
a  boat. or  boats,  or  who  shall  unreasonably  delay  the 
opening  of  said  draw  after  reasonable  signal  shall  have 
been  given,  as  provided  in  such  regulations,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  on  conviction  there- 
of shall  be  punished  by  a  fine  of  not  more  than  two  thou- 
sand dollars  nor  less  than  one  thousand  dollars,  or  by 
imprisonment  (in  the  case  of  a  natural  person)  for  not 
exceeding  one  year,  or  by  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court:  Provided,  That  the 
proper  action  to  enforce  the  provisions  of  this  section 
may  be  commenced  before  any  commissioner,  judge,  or 

57— Sec.  2,  Act  Aug.  18,  1894,  28 
Stat.  360. 


1062  Criminal  Law 

court  of  the  United  States,  and  such  commissioner, 
judge,  or  court  shall  proceed  in  respect  thereto  as  author- 
ized by  law  in  case  of  crimes  against  the  United  States : 
Provided  further.  That  whenever,  in  the  opinion  of  the 
Secretary  of  War,  the  public  interests  require  it,  he  may 
make  rules  and  regulations  to  govern  the  opening  of 
drawbridges  for  the  passage  of  vessels  and  other  water 
crafts,  and  such  rules  and  regulations,  when  so  made  and 
published,  shall  have  the  force  of  law,  and  any  violation 
thereof  shall  be  punished  as  hereinbefore  provided.^' 

§  1396.  No  building — Wharves,  etc.,  may  be  made  ex- 
cept upon  places  recommended  by  chief  engineer.  AVhere 
it  is  made  manifest  to  the  Secretary  of  War  that  the 
establishment  of  harbor  lines  is  essential  to  the  preserva- 
tion and  protection  of  harbors  he  may  and  is  hereby 
authorized  to  cause  such  lines  to  be  established,  beyond 
which  no  piers,  wharves,  bulkheads,  or  other  works  shall 
be  extended  or  deposits  made,  except  under  such  regula- 
tions as  may  be  prescribed  from  time  to  time  by  him: 
Provided,  That  whenever  the  Secretary  of  War  grants 
to  any  person  or  persons  permission  to  extend  piers, 
whai*ves,  bulkheads,  or  other  works,  or  to  make  deposits 
in  any  tidal  harbor  or  river  of  the  United  States  beyond 
any  harbor  lines  established  under  authority  of  the 
United  States,  he  shall  cause  to  be  ascertained  the  amount 
of  tide  water  displaced  by  any  such  structure  or  by 
any  such  deposits,  and  he  shall,  if  he  deem  it  necessaiy, 
require  the  parties  to  whom  the  permission  is  given  to 
make  compensation  for  such  displacement  either  by  ex- 
cavating in  some  part  of  the  harbor,  inchiding  tide-water 
channels  between  high  and  low  water  mark,  to  such  an 
extent  as  to  create  a  basin  for  as  much  tide  water  as  may 
be  disphiced  })y  such  structure  or  by  such  deposits,  or  in 
any  other  mode  that  may  be  satisfactory  to  him.**^ 

58— Sec.  5,  Act  Aug.  18,  1894,  28  59— Sec.  11,  Act  Mar.  3,  1899,  30 

Stat.  362.  Rtat.    1151. 


Offenses  Relating  to  Navigation  1063 

§  1397.  Violations  sections  9,  10  and  11  Act  March  3, 
1899.  That  every  person  and  every  corporation  that  shall 
violate  any  of  the  provisions  of  sections  9,  10  and  11 
of  this  act,  or  any  iiile  or  regiilation  made  by  the 
Secretaiy  of  War  in  pursuance  of  the  provisions  of  said 
section  14,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof  shall  be  punished  by  a  fine  not  ex- 
ceeding twenty-five  hundred  dollars,  nor  less  than  five 
hundred  dollars,  and  by  imprisonment  (if  a  natural  per- 
son) not  exceeding  one  year,  or  both  such  fine  and  im- 
prisonments in  the  discretion  of  the  court.^® 

§  1398.  Unlawful  to  throw  any  refuse  matter  from 
ships,  mills,  manufacturing  plants,  etc.,  into  any  navi- 
gable water  in  United  States.  It  shall  not  be  lawful  to 
throw,  discharge,  or  deposit,  or  cause,  suffer,  or  procure 
to  be  thrown,  discharged,  or  deposited  either  from  or  out 
of  any  ship,  barge,  or  other  floating  craft  of  any  kind, 
or  from  the  shore,  wharf,  manufacturing  establishment, 
or  mill  of  any  kind,  any  refuse  matter  of  any  kind  or 
description  whatever  other  than  that  flowing  from 
streets  and  sewers  and  passing  therefrom  in  a  liquid 
state,  into  any  navigable  water  of  the  United  States, 
or  into  any  tributary  of  any  navigable  w^ater  from  which 
the  same  shall  float  or  be  washed  into  such  navigable 
water;  and  it  shall  not  be  lawful  to  deposit,  or  cause, 
suffer,  or  procure  to  be  deposited  material  of  any  kind 
in  any  place  on  the  bank  of  any  navigable  water,  or  on 
the  bank  of  any  tributary  of  any  navigable  water,  where 
the  same  shall  be  liable  to  be  washed  into  such  navi- 
gable water,  either  by  ordinaiy  or  high  tides,  or  by 
storms  or  floods,  or  otherwise,  whereby  navigation  shall 
or  may  be  impeded  or  obstructed:  Provided,  That  noth- 
ing herein  contained  shall  extend  to,  apply  to,  or  pro- 
hibit the  operations  in  connection  with  the  improvement 

60— Sec.  12,  Act  March  3,   1899, 
30  Stat.  1151. 


1064  Criminal,  Law 

of  navigable  waters  or  construction  of  public  works, 
considered  necessary  and  proper  by  the  United  States 
ofiicers  supervising  such  improvement  or  public  work: 
And  provided  further,  That  the  Secretary  of  War,  when- 
ever in  the  judgment  of  the  chief  of  engineers  anchor- 
age and  navigation  will  not  be  injured  thereby,  may 
permit  the  deposit  of  any  material  above  mentioned  in 
navigable  waters,  within  limits  to  be  defined  and  under 
conditions  to  be  prescribed  by  him,  provided  application 
is  made  to  him  prior  to  depositing  such  material;  and 
whenever  any  permit  is  so  granted  the  conditions  thereof 
shall  be  strictly  complied  with,  and  violation  thereof 
shall  be  unlawful. ^^ 

§  1399.  Unlawful  to  build  upon,  use  or  in  any  manner 
impair  any  sea  wall,  etc.,  built  by  the  United  States.  It 
shall  not  be  lawful  for  any  person  or  persons  to  take 
possession  of  or  make  use  of  for  any  purpose,  or  build 
upon,  alter,  deface,  destroy,  move,  injure,  obstruct  by 
fastening  vessels  thereto  or  othersvise,  or  in  any  man- 
ner, whatever,  impair  the  usefulness  of  any  sea  wall, 
bulkhead,  jetty,  dike,  levee,  wharf,  pior,  or  other  work 
built  by  the  United  States,  or  any  piece  of  plant,  float- 
ing or  otherwise,  used  in  the  construction  of  such  work 
under  the  control  of  the  United  States,  in  whole  or  in 
part,  for  the  preservation  and  improvement  of  any  of 
its  navigable  waters  or  to  prevent  Hoods,  or  as  boundaiy 
marks,  tide  gauges,  surveying  stations,  buoys,  or  other 
established  marks,  nor  remove  for  ballast  or  other  pur- 
poses any  stone  or  other  material  composing  such  works: 
Provided,  That  the  Secretary  of  War  may,  on  the  recom- 
iiH'iidation  of  the  chief  of  engineers,  grant  pennission  for 
llie  tenif)orary  occujiation  or  use  of  any  of  tlie  aforemen- 
tioned public  woiks  wlieii  in  his  judgment  such  occu- 
pation or  use  will  not  be  injurious  to  the  public  interest.®* 

01— Sec.  13,  Act  Mur.  3,  1899,  30  62— Sec.  14,  Act  Mar.  3,  1899,  30 

8tat.  1152.  Htnt.  1152. 


Offenses  Relating  to  Navigation  1065 

§  1400.  Unlawful  to  anchor  vessels  in  navigable  wa- 
ters, etc. — To  float  loose  timber  or  logs,  etc.  It  shall  not 
be  lawful  to  tie  up  or  anchor  vessels  or  other  craft  in 
navigable  channels  in  such  a  manner  as  to  prevent  or 
obstruct  the  passage  of  other  vessels  or  craft;  or  to  vol- 
untarily or  carelessly  sink,  or  permit  or  cause  to  be 
sunk,  vessels  or  other  craft  in  navigable  channels;  or  to 
float  loose  timber  and  logs,  or  to  float  what  is  known 
as  sack  rafts  of  timber  and  logs  in  streams  or  channels 
actually  navigated  by  steamboats  in  such  manner  as  to 
obstruct,  impede,  or  endanger  navigation.  And  when- 
ever a  vessel,  raft,  or  other  craft  is  wrecked  and  sunk 
in  a  navigable  channel,  accidentally  or  otherwise,  it  shall 
be  the  duty  of  the  owner  of  such  sunken  craft  to  imme- 
diately mark  it  with  a  buoy  or  beacon  during  the  day 
and  a  lighted  lantern  at  night,  and  to  maintain  such 
marks  until  the  sunken  craft  is  removed  or  abandoned, 
and  the  neglect  or  failure  of  the  said  owner  so  to  do 
shall  be  unlawful;  and  it  shall  be  the  duty  of  the  owner 
of  such  sunken  craft  to  commence  the  immediate  removal 
of  the  same,  and  prosecute  such  removal  diligently,  and 
failure  to  do  so  shall  be  considered  as  an  abandonment 
of  such  craft,  and  subject  the  same  to  removal  by  the 
United  States  as  hereinafter  provided  for.®' 

§  1401.  Every  person  and  corporation  violating  sec- 
tions 13,  14  and  15  and  every  master,  pilot  or  engineer 
who  knowingly  engages  in  towing  scow  that  is  loaded 
with  material  specified  in  section  14  or  obstructing  any 
waterway  under  section  15,  Act  March  3,  1899,  shall  be 
punished.  Every  person  and  every  corporation  that  shall 
violate,  or  that  shall  knowingly  aid,  abet,  authorize,  or 
instigate  a  violation  of  the  provisions  of  sections  13,  14, 
and  15  [Sees.  1398,  1399,  1400]  of  this  act  shall  be  guilty 
of  a  misdemeanor,  and  on  conviction  thereof  shall  be 

63— Sec.  15,  Act  Mar.  3,  1899,  30 
Stat.  1152. 


1066  Criminal  Law 

punished  by  a  fine  not  exceeding  twenty-five  hundred 
dollars  nor  less  than  five  hundred  dollars,  or  by  imprison- 
ment (in  the  case  of  a  natural  person)  for  not  less  than 
thirty  days  nor  more  than  one  year,  or  by  both  such  fine 
and  imprisonment,  in  the  discretion  of  the  court,  one- 
half  of  said  fine  to  be  paid  to  the  person  or  persons  giv- 
ing information  which  shall  lead  to  conviction.  And  any 
and  every  master,  pilot,  and  engineer,  or  person  or  per- 
sons acting  in  such  capacity,  respectively,  on  board  of 
any  boat  or  vessel  who  shall  know^ingly  engage  in  towing 
any  scow,  boat,  or  vessel  loaded  with  any  material  speci- 
fied in  section  13  of  this  act,  to  any  point  or  place  of 
deposit  or  discharge  in  any  harbor  or  navigable  water, 
elsewhere  than  w^ithin  the  limits  defined  and  permitted 
by  the  Secretary  of  War,  or  w^ho  shall  wilfully  in,iure  or 
destroy  any  work  of  the  United  States  contemplated  in 
section  14  of  this  act,  or  who  shall  wilfully  obstruct  the 
channel  of  any  waterway  in  the  manner  contemplated  in 
section  15  of  this  act,  shall  be  deemed  guilty  of  a  viola- 
tion of  this  act,  and  shall,  upon  conviction,  be  punished 
as  hereinbefore  provided  in  this  section,  and  shall  also 
have  his  license  revoked  or  suspended  for  a  term  to  be 
fixed  by  the  judge  before  whom  tried  and  convicted.  And 
any  boat,  vessel,  scow,  raft,  or  other  craft  used  or  em- 
ployed in  violating  any  of  the  provisions  of  sections  13, 
14  and  15  of  this  act  shall  be  liable  for  the  pecuniary 
penalties  specified  in  this  section,  and  in  addition  thereto, 
for  the  amount  of  damages  done  by  said  boat,  vessel, 
scow,  raft,  or  other  craft,  which  latter  sum  sliall  be 
placed  to  the  credit  of  the  appropriation  for  the  improve- 
ment of  this  harbor  or  waterway  in  which  the  damage 
occurred,  and  said  boat,  vessel,  scow,  raft,  or  other  craft 
may  be  proceeded  against  summarily  by  Avay  of  libel  in 
any  district  court  of  tlio  TTnited  States  having  jurisdic- 
tion thereof." 

fi4— Roc.  If),   Aft  ^fn^.   .'!.  1«09.  HO 

stnt.  nn:?. 


Offenses  Relating  to  Navigation  1067 

§  1402.  Railroad  bridge  over  navigable  waters — Fail- 
ure to  correct  obstruction  after  notice  by  Secretary  of 
War — Guilty  of  misdemeanor.  Whenever  the  Secretary 
of  War  shall  have  good  reason  to  believe  that  any  rail- 
road or  other  bridge  now  constructed,  or  which  may 
hereafter  be  constructed,  over  any  of  the  navigable  wa- 
terways of  the  United  States  is  an  unreasonable  obstruc- 
tion to  the  free  navigation  of  such  waters  on  account 
of  insufficient  height,  width  of  span,  or  otherwise,  or 
where  there  is  difficulty  in  passing  the  draw  opening 
or  the  draw  span  of  such  bridge  by  rafts,  steamboats, 
or  other  water  craft,  it  shall  be  the  duty  of  the  said 
secretary,  first  giving  the  parties  reasonable  opportu- 
nity to  be  heard,  to  give  notice  to  the  persons  or  cor- 
porations owning  or  controlling  such  bridge  so  to  alter 
the  same  as  to  render  navigation  through  or  under  it 
reasonably  free,  easy,  and  unobstructed;  and  in  giving 
such  notice  he  shall  specify  the  changes  recommended 
by  the  chief  of  engineers  that  are  required  to  be  made, 
and  shall  prescribe  in  each  case  a  reasonable  time  in 
which  to  make  them.  If  at  the  end  of  such  time  the 
alteration  has  not  been  made,  the  Secretary  of  War 
shall  forthwith  notify  the  United  States  district  attor- 
ney for  the  district  in  which  such  bridge  is  situated, 
to  the  end  that  the  criminal  proceedings  hereinafter 
mentioned  may  be  taken.  If  the  persons,  corporation, 
or  association  owning  or  controlling  any  railroad  or 
other  bridge  shall,  after  receiving  notice  to  that  effect, 
as  hereinbefore  required,  from  the  Secretaiy  of  War,  and 
within  the  time  prescribed  by  him  wilfully  fail  or  re- 
fuse to  remove  the  same  or  to  comply  with  the  lawful 
order  of  the  Secretary  of  War  in  the  premises,  such  per- 
sons, corporation,  or  association  shall  be  deemed  guilty 
of  a  misdemeanor,  and  on  conviction  thereof  shall  be 
punished  by  a  fine  not  exceeding  five  thousand  dollars, 
and  every  month  such  persons,  corporation,  or  associa- 
tion shall  remain  in  default  in  respect  to  the  removal  or 


1068  Criminal  Law 

alteration  of  such  bridge  shall  be  deemed  a  new  offense, 
and  subject  the  persons,  corporation,  or  association  so 
offending  to  the  penalties  above  prescribed:  Provided, 
That  in  any  case  arising  under  the  provisions  of  this  sec- 
tion an  appeal  or  writ  of  error  may  be  taken  from  the 
district  courts  or  from  the  existing  circuit  courts  direct 
to  the  supreme  court  either  by  the  United  States  or  by 
the  defendants.^^ 

§  1403.  The  Department  of  Justice  shall  conduct  pros- 
ecutions under  Act  March  3,  1899.  The  Department  of 
Justice  shall  conduct  the  legal  proceedings  necessarj^  to 
enforce  the  foregoing  provisions  of  sections  9  to  16 
[Sees.  1396,  1397,  1398,  1399,  1400,  1401],  inclusive,  of 
this  act;  and  it  shall  be  the  duty  of  district  attorneys  of 
the  United  States  to  vigorously  prosecute  all  offenders 
against  the  same  whenever  requested  to  do  so  by  the 
Secretary  of  War  or  by  any  of  the  officials  hereinafter 
designated,  and  it  shall  furthermore  be  the  duty  of  said 
district  attorneys  to  report  to  the  Attorney-General  of 
the  United  States  the  action  taken  by  him  against  of- 
fenders so  reported,  and  a  transcript  of  such  reports 
shall  be  transmitted  to  the  Secretary  of  War  by  the  At- 
torney-General; and  for  the  better  enforcement  of  the 
said  provisions  and  to  facilitate  the  detection  and  bring- 
ing to  punishment  of  such  offenders,  the  officers  and 
agents  of  the  United  States  in  charge  of  river  and 
harbor  improvements,  and  the  assistant  engineers  and 
inspectors  employed  under  them  by  authority  of  the  Sec- 
retary of  War,  and  the  United  States  collectors  of  cus- 
toms and  other  revenue  officers,  shall  have  power  and 
authority  to  swear  out  process  and  to  arrest  and  take 
into  custody,  with  or  without  process,  any  person  or 
persons  who  may  commit  any  of  the  acts  or  offenses  pro- 

65— Sec.  18,  Ari  Mnr.  2,  1899,  30 
Stat.  116.-?. 


Offenses  Relating  to  Navigation  1069 

hibited  by  the  aforesaid  sections  of  this  act,  or  who  may 
violate  any  of  the  provisions  of  the  same:  Provided, 
That  no  person  shall  be  arrested  without  process  for  any 
offense  not  committed  in  the  presence  of  some  one  of 
the  aforesaid  officials:  And  provided  further,  That 
whenever  any  arrest  is  made  under  the  provisions  of 
this  act,  the  person  so  arrested  shall  be  brought  forth- 
with before  a  commissioner,  judge,  or  court  of  the  United 
States  for  examination  of  the  offenses  alleged  against 
him;  and  such  commissioner,  judge,  or  court  shall  pro- 
ceed in  respect  thereto  as  authorized  by  law  in  case  of 
crimes  against  the  United  States. ^^ 

§  1404.  Regxdations  and  rules  to  be  made  by  Secretary 
of  War  conceming  the  floating  of  logs — Section  15,  Act 
March  3,  1899,  shall  not  apply.  The  prohibition  con- 
tained in  section  15  [Sec.  1400]  of  the  River  and  Harbor 
Act,  approved  March  3,  1899,  against  floating  loose  tim- 
ber and  logs,  or  sack  rafts,  so  called,  of  timber  and  logs 
in  streams  or  channels  actually  navigated  by  steamboats, 
shall  not  apply  to  any  navigable  river  or  waterway  of 
the  United  States  or  any  part  thereof  whereon  the  float- 
ing of  loose  timber  and  logs  and  sack  rafts  of  timber  and 
logs  is  the  principal  method  of  navigation.  But  such 
method  of  navigation  on  such  river  or  waterway  or  part 
thereof  shall  be  subject  to  the  rules  and  regulations  pre- 
scribed by  the  Secretary  of  War  as  hereinafter  provided. 

§  1404a.  Sec.  2. — Rule  and  Regulations  published  in 
newspaper.  The  Secretary  of  War  shall  have  power,  and 
he  is  hereby  authorized  and  directed,  within  the  shortest 
practical  time  after  the  passage  hereof,  to  prescribe 
rules  and  regulations,  which  he  may  at  any  time  modify, 
to  govern  and  regulate  the  floating  of  loose  timber  and 
logs,  and  sack  rafts  (so  called)  of  timber  and  logs  and 
other  methods  of  navigation  on  the  streams  and  water- 

66— Sec.  17,  Act  Mar.  3,  1899,  30 
Stat.  1153. 


1070  Crimixal  Law 

ways,  or  any  thereof,  of  the  character,  as  to  navigation, 
in  section  1  hereof  described.  The  said  rules  and  regu- 
lations shall  be  so  framed  as  to  equitably  adjust  con- 
flicting interests  between  the  different  methods  or 
forms  of  navigation;  and  the  said  rules  and  regulations 
shall  be  published  at  least  once  in  such  newspapers  of 
general  circulation  as  in  the  opinion  of  the  Secretaiy  of 
War  shall  be  best  adapted  to  give  notice  of  said  rules 
and  regulations  to  persons  affected  thereby  and  locally 
interested  therein.  And  all  modifications  of  said  rules 
and  regulations  shall  be  similarly  published.  And  such 
rules  and  regulations  when  so  prescribed  and  published 
as  to  any  such  stream  or  waterway  shall  have  the  force 
of  law,  and  any  violation  thereof  shall  be  a  misdemeanor, 
and  every  person  convicted  of  such  violation  shall  be 
punished  by  a  fine  of  not  exceeding  two  thousand  five 
hundred  dollars  nor  less  than  five  hundred  dollars,  or 
by  imprisonment  (in  case  of  a  natural  person)  for  not 
less  than  thirty  days  nor  more  than  one  year,  or  by  both 
such  fine  and  imprisonment,  in  the  discretion  of  the 
court:  Provided,  That  the  proper  action  to  enforce  the 
provisions  of  this  section  may  be  commenced  before  any 
commissioner,  judge,  or  court  of  the  United  States,  and 
such  commissioner,  judge  or  court  shall  proceed  in  re- 
spect thereto  as  authorized  by  law  in  the  case  of  crimes 
and  misdemeanors  committed  against  tlie  United  States. 

§  1404b.  Sec.  3.  Right  to  Amend  etc.  The  right  to  alter, 
amend,  or  repeal  this  act  at  any  lime  is  hereby  reserved. 

§  1404c.  Sec.  4  Civil  Act  not  affected.  This  act  shall 
not,  nor  sliall  any  rules  or  re.uulations  prescribed  there- 
under, in  any  mannr  affect  any  civil  action  or  actions 
lierctofore  commenced  and  now  ponding  to  recover 
damages  claimed  to  have  been  sustained  by  reason  of  the 
violation  of  any  of  the  terms  of  said  section  15,  as 
ori^rinally  enacted,  or  in  violation  of  any  otlior  law.®"^ 

07 — .Scc'H.   ],  'J,  :J  and  4,  Ad    May 
9,  1900,  31  Stat.  172. 


Offenses  Relating  to  Navigation  1071 

§  1405.  Secretary  of  War  shall  make  rules  and  rela- 
tions concerning  dumping  refuse  material  into  navigable 
waters.  That  the  Secretaiy  of  War  is  hereby  authorized 
and  empowered  to  prescribe  regulations  to  govern  the 
transportation  and  dumping  into  any  navigable  water, 
or  waters  adjacent  thereto,  of  dredgings,  earth,  garbage, 
and  other  refuse  materials  of  every  kind  or  description, 
whenever  in  his  judgment  such  regulations  are  required 
in  the  interest  of  navigation.  Such  regulations  shall  be 
posted  in  conspicuous  and  appropriate  places  for  the  in- 
formation of  the  public;  and  every  person  or  corpora- 
tion which  shall  violate  the  said  regulations,  or  any  of 
them,  shall  be  deemed  guilty  of  a  misdemeanor  and  shall 
be  subject  to  the  penalties  prescribed  in  section  16  [Sec. 
1401]  of  the  River  and  Harbor  Act  of  March  3,  1899,  for 
violation  of  the  provisions  of  section  13  [Sec.  1398]  of 
the  said  act:  Provided,  That  any  regulations  made  in 
pursuance  hereof  may  be  enforced  as  provided  in  sec- 
tion 17  [Sec.  1403]  of  the  aforesaid  Act  of  March  3, 
1899,  the  provisions  whereof  are  hereby  made  applicable 
to  the  said  regulations:  Provided  further.  That  this 
section  shall  not  apply  to  any  waters  within  the  juris- 
dictional boundaries  of  any  state  which  are  now  or  may 
hereafter  be  used  for  the  cultivation  of  oysters  under  the 
laws  of  such  state,  except  navigable  channels  which  have 
been  or  may  hereafter  be  improved  by  the  United  States, 
or  to  be  designated  as  navigable  channels  by  competent 
authority,  and  in  making  such  improvements  of  chan- 
nels, the  material  dredged  shall  not  be  deposited  upon 
any  ground  in  use  in  accordance  with  the  laws  of  such 
state  for  the  cultivation  of  oysters,  except  in  compliance 
with  said  laws.  And  provided  further.  That  any  expense 
necessary  in  executing  this  section  may  be  paid  from 
funds  available  for  the  improvement  of  the  harbor  or 
watenvay,  for  which  regulations  may  be  prescribed,  and 
in  case  no  such  funds  are  available  the  said  expense  may 
be  paid  from  appropriations  made  by  congress  for  ex- 


1072  Criminal  Law 

aminations,   sui-veys,   and   contingencies   of   rivers   and 
harbors.^^ 

§  1406.  Any  person  directly  or  indirectly  giving  any 
sum  of  money  to  any  inspector  of  navigation — Punish- 
able. Every  person  who,  directly  or  indirectly,  gives  any 
sum  of  money  or  other  bribe,  present,  or  reward,  or 
makes  any  offer  of  the  same  to  any  inspector,  deputy 
inspector,  or  other  employee  of  the  ofiQce  of  the  super- 
visor of  the  harbor  with  intent  to  influence  such  inspec- 
tor, deputy  inspector,  or  other  employee  to  permit,  or 
overlook  any  violation  of  the  provisions  of  this  section 
or  of  the  said  Act  of  June  29,  1888,  shall,  on  conviction 
thereof,  be  fined  not  less  than  five  hundred  dollars  nor 
more  than  one  thousand  dollars,  and  be  imprisoned  not 
less  than  six  months  nor  more  than  one  year. 

Every  permit  issued  in  accordance  with  the  provisions 
of  this  section  of  this  act,  which  may  not  be  taken  up 
by  an  inspector  or  deputy  inspector,  shall  be  returned 
within  four  days  after  issuance  to  the  office  of  the  super- 
visor of  the  harbor;  such  permit  shall  bear  an  indorse- 
ment by  the  master  of  the  towboat,  or  the  person  act- 
ing in  such  capacity,  stating-  whether  the  permit  has 
been  used,  and,  if  so,  the  time  and  place  of  dumping. 
Any  person  violating  the  provisions  of  this  section  shall 
be  liable  to  a  fine  not  more  than  five  hundred  dollars  nor 
less  than  one  hundred  dollars. ^^ 

§  1407.  Unlawful  to  deposit  or  dump  any  refuse  mat- 
ter in  Lake  Michigan — Punishment,  'rhal  it  sliall  not 
be  lawful  to  throw,  dischai-gc,  (luiiii),  or  deposit,  or  cause, 
KuiTer,  or  procure  to  be  thrown,  discharged,  dumix'd, 
or  deposited,  any  refuse  matter  of  any  kind  or  descrip- 
tion what(!ver  other  tliaii  that  (lowing  from  streets  and 
sewers  and  [)assing  thci'dVoni  in  ;i  licjuid  state  into  Ijakc 

68— Sec.  4,  Act  M.ir.  3,  100.1,  .33  G9— Sec.  8,  Act  May  28,  1908,  35 

8tftt.  1147.  Stat.  428. 


Offenses  Relating  to  Navigation  1073 

Michigan,  at  any  point  opposite  or  in  front  of  the  County 
of  Cook  in  the  State  of  Illinois,  or  the  County  of  Lake  in 
the  State  of  Indiana,  within  eight  miles  from  the  shore 
of  said  lake,  unless  said  material  shall  be  placed  inside 
of  a  breakwater  so  arranged  as  not  to  permit  the  escape  of 
such  refuse  material  into  the  body  of  the  lake  and  cause 
contamination  thereof;  and  no  officer  of  the  government 
shall  dump  or  cause  or  authorize  to  be  dumped  any  ma- 
terial contrary  to  the  provisions  of  this  act:  Provided, 
however.  That  the  provisions  of  this  act  shall  not  apply 
to  work  in  connection  with  the  construction,  repair,  and 
protection  of  breakwaters  and  other  structures  built  in 
aid  of  navigation,  or  for  the  purpose  of  obtaining  water 
supply.  Any  person  violating  any  provision  of  this  act 
shall  be  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  shall  be  fined  for  each  offense  not  exceeding  one 
thousand  dollarsJ^ 

§  1408.  Person  owning  or  operating  dam  under  provi- 
sions of  Act  June  23,  1910,  failing  to  maintain  lights  and 
signals — Punishment.  That  the  persons  constructing, 
maintaining,  or  operating  any  dam  or  appurtenant  or 
accessory  works,  in  accordance  with  the  provisions  of 
this  act,  shall  be  liable  for  any  damage  that  may  be  in- 
flicted thereby  upon  private  property,  either  by  overflow 
or  otherwise.  The  persons  owning  or  operating  any  such 
dam,  or  accessory  works,  subject  to  the  provisions  of  this 
act,  shall  maintain,  at  their  own  expense,  such  lights  and 
other  signals  thereon  and  such  fishways  as  the  Secretaiy 
of  Commerce  and  Labor  shall  prescribe,  and  for  failure 
so  to  do  in  any  respect  shall  be  deemed  guilty  of  a  misde- 
meanor and  subject  to  a  fine  of  not  less  than  five  hundred 
dollars,  and  each  month  of  such  failure  shall  constitute 
a  separate  offense  and  subject  such  persons  to  additional 
penalties  therefor.'^ 

70— Sec.  1,  Act  June  23,  1910,  36  71— Sec.  3,  Act  June  23,  1910,  36 

Stat.  593.  Stat.  594. 

C.  L.— 68 


1074  Criminal  Law 

§  1409.  Failure  to  comply  with  lawful  orders  of  Secre- 
tary of  War  and  chief  engineer  under  provisions  Act 
June  23,  1910,  a  misdemeanor.  That  any  persons  who 
■shall  fail  or  refuse  to  comply  with  the  lawful  order  of 
the  Secretary  of  AVar  and  the  chief  of  engineers,  made 
in  accordance  with  the  provisions  of  this  act  [Sees.  1407, 
1408,  1409],  shall  be  deemed  guilty  of  a  violation  of 
this  act,  and  any  persons  who  shall  be  guilty  of  a  viola- 
tion of  this  act  shall  be  deemed  guilty  of  a  misdemeanor 
and  on  conviction  thereof  shall  be  punished  by  a  fine  not 
exceeding  five  thousand  dollars,  and  every  month  such 
persons  shall  remain  in  default  shall  be  deemed  a  new 
offense  and  subject  such  persons  to  additional  penalties 
therefor.'* 

§  1410.  Secretary  of  War  to  prescribe  rules  and  regu- 
lations concerning-  navigation — Punishment  for  viola- 
tion. It  shall  be  the  duty  of  the  Secretary  of  War  to 
prescribe  such  regulations  for  the  use,  administration, 
and  navigation  of  the  navigable  waters  of  the  United 
States  as  in  his  judgment  the  public  necessity  may  re- 
quire for  the  protection  of  life  and  property,  or  of  opera- 
tions of  the  United  States  in  channel  improvement,  cov- 
ering all  matters  not  specifically  delegated  by  law  to 
some  other  executive  department.  Such  regulations 
shall  be  posted,  in  conspicuous  and  appropriate  places, 
for  the  information  of  the  public;  and  eveiy  person  and 
every  corporation  which  shall  violate  such  regulations 
shall  be  deemed  gnilty  of  a  misdemeanor  and,  on  con- 
vict ion  tiicreof  in  any  district  conrl  of  tlu^  United  States 
within  whose  territorial  Jnrisdict ion  sncli  offense  may 
liave  been  committed,  siiall  be  pnnisiied  l)y  a  fine  not 
exceeding  $500,  or  by  imprisonment  (in  the  case  of  a 
natnral  person)  not  exceeding  six  months,  in  the  discre- 
t  ion  (»r  1  he  court.'^ 

72— Sec.  r,.  Aft  .TtuK-  2:\,  1f)in,  nfi  73— Act    AiiR.    R,    1017,    40    Stat. 

stnt.  .mi.  LM;n. 


CHAPTEE  LXXII 

OFFENSES  AGAINST  NEUTRALITY 

CHAPTEE  TWO 

Penal  Code,  Act  March  4,   1909 

§  1413.  Accepting    a    foreign    com-  §  1418.  Enforcement     of     foregoing 
mission.  provisions. 

§  1414.  Enlisting  in  foreign  service.  §  1419.  Compelling     foreign     vessels 

§  1415.  Arming  vessels  against  peo-  to  depart. 

pie,     at    peace     with     the  §  1420.  Armed  vessels  to   give  bond 
United    States.  on  clearance. 

§  1416.  Augmenting  force  of  foreign  §  1421.  Detention    by    collectors    of 
vessel  of  war.  customs. 

§  1417.  Military  expeditions  against  §  1422.  Construction  of  this  chapter, 
people  at  peace  with  the 
United  States. 

§  1413.  Accepting  a  foreign  commission.  Sec.  9.  Every 
citizen  of  the  United  States  who,  within  the  territoiy  or 
jurisdiction  thereof,  accepts  and  exercises  a  commission 
to  serve  a  foreign  prince,  state,  colony,  district,  or  peo- 
ple, in  war,  by  land  or  by  sea,  against  any  prince,  state, 
colony,  district,  or  people,  with  whom  the  United  States 
are  at  peace,  shall  be  fined  not  more  than  two  thousand 
dollars  and  imprisoned  not  more  than  three  years. 

§  1414.  An  act  to  amend  section  10  of  chapter  2  of  the 
Criminal  Code.  Sec.  10.  Be  it  enacted  by  the  senate  and 
house  of  representatives  of  the  United  States  of  America 
in  congress  assembled.  That  section  10  of  chapter  2  of 
an  act  entitled  "An  act  to  codify,  revise,  and  amend  the 
penal  laws  of  the  United  States,"  approved  March  4, 
1909,  be  amended  so  as  to  read  as  follows : 

"Sec.  10.  Whoever,  wdthin  the  territoiy  or  jurisdic- 
tion of  the  United  States,  enlists  or  enters  himself,  or 
hires  or  retains  another  person  to  enlist  or  enter  him- 

1075 


1U76  Criminal  Law 

self,  or  to  go  beyond  the  limits  or  jurisdiction  of  the 
United  States  with  intent  to  be  enlisted  or  entered  in 
the  service  of  any  foreign  prince,  state,  colony,  district, 
or  people  as  a  soldier  or  as  a  marine  or  seaman  on  board 
of  any  vessel  of  war,  letter  of  marque,  or  privateer,  shall 
be  fined  not  more  than  $1,000  and  imprisoned  not  more 
than  three  years:  Provided,  That  this  section  shall  not 
apply  to  citizens  or  subjects  of  any  countiy  engaged  in 
war  with  a  countiy  with  which  the  United  States  is  at 
war,  miless  such  citizen  or  subject  of  such  foreign  coun- 
try shall  hire  or  solicit  a  citizen  of  the  United  States  to 
enlist  or  go  beyond  the  jurisdiction  of  the  United  States 
with  intent  to  enlist  or  enter  the  service  of  a  foreign 
country.  Enlistments  under  this  proviso  shall  be  under 
regulations  prescribed  by  the  Secretary  of  War. ' '  ^ 

§  1415.  Arming  vessels  against  people  at  peace  with 
the  United  States.  Sec.  11.  Whoever,  within  the  terri- 
tory or  jurisdiction  of  the  United  States,  fits  out  and 
aiTQS,  or  attempts  to  fit  out  and  arm,  or  procures  to  be 
fitted  out  and  armed,  or  knowingly  is  concerned  in  the 
furnishing,  fitting  out,  or  arming  of  any  vessel,  with 
intent  that  such  vessel  shall  be  employed  in  the  service 
of  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  to  cruise  or  commit  hostilities  against  the  sub- 
jects, citizens,  or  property  of  any  foreign  prince  or  state, 
or  of  any  colony,  district,  or  peoi)le,  with  whom  the 
United  States  are  at  peace,  or  whoever  issues  or  deliv- 
ers a  commission  within  the  territory  or  jurisdiction  of 
tlie  United  States  for  any  vessel,  to  the  intent  that  she 
may  be  so  emi)loyed,  shall  \w  lined  n«>l  more  than  ten 
thousand  dollars  and  imprisoned  not  more  than  three 
years.  And  cxcry  snch  vessel,  her  tackle,  ai)i)ai-el,  and 
furniture,  Ictgelhei'  wilh  all  inalei'ials,  arms,  amnnmition 
and  stores  which  may  have  liecii  piocured  Toi-  the  hnild- 
ing  and   ('(iniijiiient    Ihereof,  shall   be   loi'lVitcd;   one   hall 

1— Approved,  May  7,  rjl7,  ('Imp. 
11,  40  Btat.  39. 


Offenses  Against  NEUTRALiTt  1077 

to  the  use  of  the  informer  and  the  other  half  to  the  use 
of  the  United  States. 

§  1416.  Augmenting  force  of  foreign  vessel  of  war. 
Sec.  12.  Whoever,  within  the  territoiy  or  jurisdiction  of 
the  United  States,  increases  or  augments,  or  procures  to 
be  increased  or  augmented,  or  knowingly  is  concerned  in 
increasing  or  augmenting,  the  force  of  any  ship  of  war, 
cruiser,  or  other  armed  vessel  which,  at  the  time  of  her 
arrival  within  the  United  States,  was  a  ship  of  war,  or 
cruiser,  or  armed  vessel,  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  or 
belonging  to  the  subjects  or  citizens  of  any  such  prince 
or  state,  colony,  district,  or  people,  the  same  being  at 
war  with  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people,  with  whom  the  United  States  are  at 
peace,  by  adding  to  the  number  of  the  guns  of  such  ves- 
sel, or  by  changing  those  on  board  of  her  for  g-uns  of  a 
larger  caliber,  or  by  adding  thereto  any  equipment  solely 
applicable  to  war,  shall  be  fined  not  more  than  one  thou- 
sand dollars  and  imprisoned  not  more  than  one  year. 

§  1417.  Military  expeditions  against  people  at  peace 
with  the  United  States.  Sec.  13.  Whoever,  within  the 
territory  or  jurisdiction  of  the  United  States  or  any  of 
its  possessions,  knowingly  begins  or  sets  foot  or  pro-, 
vides  or  prepares  a  means  for  or  furnishes  the  money  for, 
or  who  takes  part  in,  any  military  or  naval  expedition  or 
enterprise  to  be  carried  on  from  thence  against  the  ter- 
I'itory  or  dominion  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people  with  whom  the  United 
States  is  at  peace,  shall  be  fined  not  more  than  three 
thousand  dollars,  or  imprisoned  not  more  than  three 
years,  or  both.^ 

2 — See.  10  of  Penal  Code  of  Act       appears  in  the   said   act,  known  as 
of  Mar.   4,  1909,  amended  by  See.       Espionage  Act. 
8  of  Act  June  15,  1917,  same  as  it 


1078  '  Criminax.  Law 

§  1418.  Enforcement  of  foregoing  provisions.  Sec.  14. 
The  district  courts  shall  take  cognizance  of  all  com- 
plaints, by  whomsoever  instituted,  in  cases  of  captures 
made  within  the  waters  of  the  United  States,  or  within 
a  marine  league  of  the  coasts  or  shores  thereof.  In  every 
case  in  which  a  vessel  is  fitted  out  and  armed,  or  at- 
tempted to  be  fitted  out  and  armed,  or  in  which  the 
force  of  any  vessel  of  war,  cruiser,  or  other  armed  vessel 
is  increased  or  augmented,  or  in  which  any  militaiy  ex- 
pedition or  enterprise  is  begun  or  set  on  foot,  contrary 
to  the  provisions  and  prohibitions  of  this  chapter;  and 
in  everj^  case  of  the  capture  of  a  vessel  within  the  juris- 
diction or  protection  of  the  United  States  as  before  de- 
fined; and  in  eveiy  case  in  which  any  process  issuing  out 
of  any  court  of  the  United  States  is  disobeyed  or  resisted 
by  any  person  having  the  custody  of  any  vessel  of  war, 
cruiser,  or  other  armed  vessel  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  or  of  any  sub- 
jects or  citizens  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  it  shall  be  lawful  for  the 
President,  or  such  other  person  as  he  shall  have  empow- 
ered for  that  purpose,  to  employ  such  part  of  the  land 
or  naval  forces  of  the  United  States,  or  of  the  militia 
thereof,  for  the  purpose  of  taking  possession  of  and  de- 
taining any  such  vessel  with  her  prizes,  if  any,  in  order 
to  enforce  the  execution  of  tlie  prohibitions  and  penal- 
ties of  this  chapter,  and  the  restoring  of  such  prizes  in 
the  case  in  which  restoration  shall  be  adjudged;  and  also 
foi-  the  purpose  of  preventing  the  carrying  on  of  any  such 
expedition  or  enterprise  from  the  territory  or  jurisdiction 
of  tlie  United  States  against  tlie  territory  or  dominion  of 
any  foreign  prince  or  state,  or  of  any  colony,  district  or 
jjeople  witli  wlioin  tlio  Tnited  States  are  at  peace. 

§  1419.  Compelling  foreign  vessels  to  depart.  Sec.  15. 
It  sh.'ill  be  lawful  for  the  President  to  employ  such  part 
of  the  Innd  oi-  nnval   forces  of  the  United  States,  or  of 


Offenses  Against  Neutrality  1079 

the  militia  thereof,  as  he  may  deem  necessary  to  compel 
any  foreign  vessel  to  depart  from  the  United  States  or 
any  of  its  possessions  in  all  cases  in  which,  by  the  law 
of  nations  or  the  treaties  of  the  United  States,  it  ought 
not  to  remain,  and  to  detain  or  prevent  any  foreign  ves- 
sel from  so  departing  in  all  cases  in  which,  by  the  law  of 
nations  or  the  treaties  of  the  United  States,  it  is  not  en- 
titled to  depart.' 

§  1420.  Armed  vessels  to  give  bond  on  clearance.  Sec. 
16.  The  owners  or  consignees  of  every  armed  vessel  sail- 
ing out  of  the  ports  of,  or  under  the  jurisdiction  of,  the 
United  States,  belonging  wholly  or  in  part  to  citizens 
thereof,  shall,  before  clearing  out  the  same,  give  bond 
to  the  United  States,  with  sufficient  sureties,  in  double 
the  amount  of  the  value  of  the  vessel  and  cargo  on  board, 
including  her  armament,  conditioned  that  the  vessel 
shall  not  be  employed  by  such  owners  to  cruise  or  com- 
mit hostilities  against  the  subjects,  citizens,  or  property 
of  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace. 

§1421.  Detention  by  collectors  of  customs.  Sec.  17. 
The  several  collectors  of  the  customs  shall  detain  any 
vessel  manifestly  built  for  warlike  purposes,  and  about 
to  depart  the  United  States,  or  any  place  subject  to  the 
jurisdiction  thereof,  the  cargo  of  which  principally  con- 
sists of  arms  and  munitions  of  war,  when  the  number 
of  men  shipped  on  board,  or  other  circumstances,  ren- 
der it  probable  that  such  vessel  is  intended  to  be  em- 
ployed by  the  owners  to  cruise  or  commit  hostilities  upon 
the  subjects,  citizens,  or  property  or  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people  with  whom 
the  United  States  are  at  peace,  until  the  decision  of  the 
President  is  had  thereon,  or  until  the  owner  gives  such 

3 — As  amended,  40  Stat,  at  Large, 
page  223,  Act  June  15,  1917. 


1080  Criminal  Law 

bond  and  security  as  is  required  of  the  owners  of  armed 
vessels  by  the  preceding  section. 

§  1422.  Construction  of  this  chapter.  Sec.  18.  The  pro- 
visions of  this  chapter  shall  not  be  construed  to  extend  to 
any  subject  or  citizen  of  any  foreign  prince,  state,  colony, 
district,  or  people  who  is  transiently  within  the  United 
States  and  enlists  or  enters  himself  on  board  of  any 
vessel  of  war,  letter  of  marque,  or  privateer,  which  at 
the  time  of  its  arrival  within  the  United  States  was 
fitted  and  equipped  as  such,  or  hires  or  retains  another 
subject  or  citizen  of  the  same  foreign  prince,  state,  col- 
ony, district,  or  people  who  is  transiently  within  the 
United  States  to  enlist  or  enter  himself  to  serve  such 
foreign  prince,  state,  colony,  district,  or  people  on  board 
such  vessel  of  war,  letter  of  marque,  or  privateer,  if  the 
United  States  shall  then  be  at  peace  with  such  foreign 
prince,  state,  colony,  district,  or  people.  Nor  shall  they 
be  construed  to  prevent  the  prosecution  or  punishment 
of  treason,  or  of  any  piracy  defined  by  the  laws  of  the 
United  States. 


CHAPTER  LXXIII 

OPIUM 


1425.  Chinese    introducing    opium 

in    violation    of    Act    of 
Feb.    23,    1887. 

1426.  No    citizen    of    the    United 

States  shall  import  opiimi 
into  Chinese  port. 

1427.  Fraudulently  and  knowingly 

importing    opium    into   U. 
S. ;   penalty. 

1428.  Person     having     smoking 

opium    in   possession    who 


fails  to  report  to  prin- 
cipal officer  of  vessel 
destined  to  or  bound  from 
the  United  States,  guilty 
under   Sec.    2. 

§  1429.  No  person  subject  to  juris- 
diction of  United  States 
shall  export  opium,  etc. 

§  1430.  Exportation  prohibited  by 
following   penalties. 


§  1425.  Chinese  introducing  opium  in  violation  of  Act 
of  February  23,  1887.  That  the  hnportation  of  opium 
into  any  of  the  ports  of  the  United  States  by  any  sub- 
ject of  the  Emperor  of  China  is  hereby  prohibited.  Every 
person  guilty  of  a  violation  of  the  preceding  provision 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  con- 
viction thereof,  shall  be  punished  by  a  fine  of  not  more 
than  five  hundred  dollars  nor  less  than  fifty  dollars,  or 
by  imprisonment  for  a  period  of  not  more  than  six 
months  nor  less  than  thirty  days,  or  by  both  such  fine 
and  imprisonment,  in  the  discretion  of  the  court. ^ 

§  1426.  No  citizen  of  the  United  States  shall  import 
opium  into  Chinese  port.  That  no  citizen  of  the  United 
States  shall  import  opium  into  any  of  the  open  ports  of 
China,  nor  transport  the  same  from  one  open  port  to 
any  other  open  port,  or  buy  or  sell  opium  in  any  of  such 
open  ports  in  China,  nor  shall  any  vessel  owned  by  citi- 

1— Sec.  1,  Act  Feb.  23,  1887,  24 
Stat.  409. 

1081 


1082  Criminal  Law 

zens  of  the  United  States,  or  any  vessel,  whether  foreign 
or  otherwise,  employed  by  any  citizen  of  the  United 
States,  or  owned  by  any  citizen  of  the  United  States, 
either  in  whole  or  in  part,  and  employed  by  persons  not 
citizens  of  the  United  States,  take  or  carry  opium  into 
any  of  such  oj^en  port,  or  be  engaged  in  any  traffic  there- 
in between  or  in  such  open  ports  or  any  of  them.  Citi- 
zens of  the  United  States  offending  against  the  provi- 
sions of  this  section  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof,  shall  be  punished 
by  a  fine  not  exceeding  five  hundred  dollars  nor  less  than 
fifty  dollars,  or  by  both  such  punishments,  in  the  discre- 
tion of  the  court.  The  consular  courts  of  the  United 
States  in  China,  concurrently  with  any  district  court  of 
the  United  States  in  the  district  in  which  any  offender 
may  be  found,  shall  have  jurisdiction  to  hear,  try,  and 
determine  all  cases  arising  under  the  foregoing  pro- 
visions of  this  section,  subject  to  the  general  regulations 
provided  by  law.  Every  package  of  opium  or  package 
containing  opium,  either  in  whole  or  in  part,  brought, 
taken,  or  transported,  traflicked,  or  dealt  in  contrary  to 
the  provisions  of  this  section,  shall  be  forfeited  to  the 
United  States,  for  the  benefit  of  the  Emperor  of  China; 
and  such  forfeiture,  and  the  declaration  and  consequences 
thereof  shall  be  made,  had,  determined,  and  executed  by 
tlie  proi)er  autlioritios  of  the  United  States  exercising 
judicial  powers  within  the  Empire  of  China.'^ 

§  1427.  Fraudulently  and  knowingly  importing  opium 
into  United  States — Penalty.  'I'lml  if  ;iiiy  person  slmll 
ri'audulcntly  or  knowingly  iinpoii  oi-  hiing  inio  I  lie 
United  States,  or  assist  in  so  doini;-,  nny  o|Mnin  oi-  .•my 
I)n'paralion  or  (Ici'iwit  ixc  llicrcof  cont  i';ii-y  lo  l;i\v,  or 
sliall  r(!ceiv(',  conc-cal,  l)uy,  sell,  or  in  any  niannci'  facili- 
tate  tlie   transportation,   concealment,   or  sale  of   such 

2— Sec.  3,  Act  Feb.  23,  1887,  24 
Stat.  40D. 


Opium  1083 

opium  or  preparation  or  derivative  thereof  after  impor- 
tation, knowing  the  same  to  have  been  imported  con- 
trary to  law,  such  opium  or  preparation  or  derivative 
thereof  shall  be  forfeited  and  shall  be  destroyed,  and  the 
offender  shall  be  fined  in  any  sum  not  exceeding  $5,000 
nor  less  than  $50  or  by  imprisonment  for  any  time  not 
exceeding  two  years,  or  both.  Whenever,  on  trial  for 
a  violation  of  this  section,  the  defendant  is  shown  to 
have,  or  to  have  had,  possession  of  such  opium  or  prepa- 
ration or  derivative  thereof,  such  possession  shall  be 
deemed  sufficient  evidence  to  authorize  conviction  unless 
the  defendant  shall  explain  the  possession  to  the  satis- 
faction of  the  jury.^ 

§  1428.  Person  having  smoking  opium  in  possession 
who  fails  to  report  to  principal  officer  of  vessel  destined 
to  or  bound  from  the  United  States— Guilty  under  section 
2  (Act  Jan.  17,  1914,  sec.  1427).  That  any  person  sub- 
ject to  the  jurisdiction  of  the  United  States  who  shall, 
either  as  principal  or  as  accessory,  receive  or  have  in 
his  possession,  or  conceal  on  board  of  or  transport  on 
any  foreign  or  domestic  vessel  or  other  watercraft  or 
railroad  car  or  other  vehicle  destined  to  or  bound  from 
the  United  States  or  any  possession  thereof,  any  smoking 
opium  or  opium  prepared  for  smoking,  or  who,  having 
knowledge  of  the  presence  in  or  on  any  such  vessel, 
watercraft,  or  vehicle  of  such  article,  shall  not  report 
the  same  to  the  principal  officer  thereof,  shall  be  subject 
to  the  penalty  provided  in  section  2  of  this  act.  When- 
ever on  trial  for  violation  of  this  section  the  defendant 
is  shown  to  have  or  to  have  had  possession  of  such  opium, 
such  possession  shall  be  deemed  sufficient  evidence  to 
authorize  conviction,  unless  the  defendant  shall  explain 
the  possession  to  the  satisfaction  of  the  juiy;  Provided, 
however.  That  any  master  of  a  vessel  or  other  water- 

3— Sec.  2,  Act  Jan.  17,  1914,  38 
Stat.  276. 


1084  Ckiminal  Law 

craft,  or  person  in  charge  of  a  railroad  car  or  other  ve- 
hicle, shall  not  be  liable  under  this  section  if  he  shall 
satisfy  the  jury  that  he  had  no  knowledge  and  used  due 
diligence  to  prevent  the  presence  of  such  article  in  or  on 
such  vessel,  watercraft,  car,  or  other  vessel,  and  any  such 
article  shall  be  forfeited  and  shall  be  destroyed.* 

§  1429.  No  person  subject  to  jurisdiction  of  United 
States  shall  export  opium,  etc.  That  hereafter  it  shall 
be  unlawful  for  any  person  subject  to  the  jurisdiction 
of  the  United  States  to  export  or  cause  to  be  exported 
from  the  United  States,  or  from  territory  under  its  con- 
trol or  jurisdiction,  or  from  countries  in  which  the  United 
States  exercises  extraterritorial  jurisdiction,  any  opium 
or  cocaine,  or  any  salt,  derivative,  or  preparation  of 
opium  or  cocaine,  to  any  other  country;  Provided,  That 
opium  or  cocaine,  and  salts,  derivatives,  or  preparations 
thereof,  except  smoking  opium  or  opium  prepared  for 
smoking,  the  exportation  of  which  is  hereby  absolutely 
prohibited,  may  be  exported  to  countries  regulating  their 
entry  under  such  regulations  as  are  prescribed  by  such 
country  for  the  importation  thereof  into  such  country, 
such  regulations  to  be  promulgated  from  time  to  time 
by  tlie  Secretary  of  State  of  the  United  States. 

The  Secretary  of  State  shall  request  all  foreign  gov- 
enmients  to  communicate  through  the  diplomatic  chan- 
nels copies  of  laws  and  regulations  promulgated  in  their 
resj)ectiv('  countries  which  prohibit  or  regulate  the  im- 
poiintioii  (if  the  aforesaid  drugs,  and  when  received  ad- 
vise the  Secretary  of  the  Treasury  and  the  Secretary 
of  Commerce  thereof;  wliereupon  the  Secretary  of  State, 
the  Secretary  of  tlio  Treasury,  and  tlu'  Secretary  of  Com- 
merce sliall  make  and  pnhlisli  ;ill  piojx'r  regulations  for 
carrying  the  pi'ovisions  of  this  section  into  elTect.^ 

4— Sec.   4,   Act  .Jan.   17,   1914,  38  5— Sec.   G,   Act  .Tan.    17,   l!tl4,  38 

Rtnt.   276.  Rtnt.   276. 


Opium  1085 

§  1430.  Exportation  prohibited  by  following  penalties. 

That  any  person  who  exports  or  causes  to  be  exported 
any  of  the  aforesaid  drugs  in  violation  of  the  preced- 
ing section  [Sec.  1429]  shall  be  fined  in  any  sum  not  ex- 
ceeding $5,000  nor  less  than  $50.00,  or  by  imprisonment 
for  any  time  not  exceeding  two  years,  or  both.  And  one- 
half  of  any  fine  recovered  from  any  person  or  persons 
convicted  of  an  offense  under  any  section  of  this  act  may 
be  paid  to  the  person  or  persons  giving  information  lead- 
ing to  such  recovery,  and  one-half  of  any  bail  forfeited 
and  collected  in  any  proceedings  brought  under  this  act 
may  be  paid  to  the  person  or  persons  giving  the  infor- 
mation which  led  to  the  institution  of  such  proceedings, 
if  so  directed  by  the  court  exercising  jurisdiction  in  the 
case;  Provided,  That  no  payment  for  giving  information 
shall  be  made  to  any  officer  or  employee  of  the  United 
States.^ 

6— See.  7,  Act  Jan.  17,  1914,  38 
Stat.  277. 


CHAPTER  LXXIV 

PENSIONS  AND  ALLOWANCES  TO  SOLDIERS 


§  1433.  Any  agent   or  attorney   for       §  1440. 
any  pensioner  -without  his 
consent  withholds  any  dis-       §  1441. 
charge     papers     or     land 
warrant,  guilty  of  misde- 
meanor. 

§  1434.  Attorney,     etc.,     demanding 

more   than    legal   compen-       §  1442. 
sation    or    who    withholds 
any    part    of    a    pension, 
guilty      of     high     misde- 
meanor. 

§  1435.  Agent  or  attorney  may  file 

with    commissioner    dupli-       §  1443. 
cate    claims;    fee    is    ten 
dollars;  penalty  for  viola- 
tion. 

§  1436.  Attorney    retaining    or    col-       §  1444. 
Iccting  for  more  than  ten 
dollars    in    securing    pen- 
sions, punished  for  viola- 
tion. 

§  1437.  Illegal  in  increase  of  pension      §  1446. 
to  contract  for  a  greater 
fee  than  two  dollars;  pun- 
ishment   for   violation.  §  1447. 

§  1438.  Embezzlement  of  any  pen- 
sion, held  in  trust  as 
guardian,  etc.,  criminal. 

8  lirU).  Pc?iHion  to  civil  war  nurses; 
attorneys'     fee     not     al- 
lowed;     violation     misdc-       8  1448. 
mcanor. 


False  oath  in  prosecuting 
for   pension,   perjury. 

The  making  or  procuring  to 
be  made  a  false  affidavit, 
knowingly  concerning  any 
pension,  and  any  false 
acknowledgment    criminal. 

No  pension  attorney,  claim 
agent  or  other  person  shall 
contract  for  any  fee  for 
services  in  securing  pen 
sions  by  legislation  in 
Congress ;   punishment. 

Forging  indorsement  of  any 
person  on  pension  check 
or  uttering  such  check, 
criminal. 

Under  Federal  Compensa- 
tion Act  accepting  com- 
pensation after  marriage, 
where  same  ceases  upon 
marriage. 

War  insurance,  attorney's 
fee;  punishment  for  vio- 
lation. 

Securing  pension  for  widows 
and  minor  children,  pen- 
sions granted  widows,  etc., 
of  volunteers  in  war  with 
Spain,  Philippines,  and 
Cliiiia. 

Puiiisliiiieiit   for    violation. 


§  1433.  Any  agent  or  attorney  for  any  pensioner  with- 
out  his  consent  withholds  any  discharge  papers  or  land 
warrant  guilty  of  misdemeanor.  Tlint  any  rlaim  agent, 
attorney,  or  ollici-  pfrson  oiigag(Ml    in    ilic  collorlion   of 

1 086 


Pensions  and  Allowances  to  Soldiers        1087 

claims  for  pay,  bounty,  pension  or  other  allowances  for 
any  soldier,  sailor,  or  marine,  or  for  any  commissioned 
officer  of  the  military  or  naval  forces,  or  who  may  have 
been  a  soldier,  sailor,  marine,  or  officer  of  the  regular 
or  volunteer  forces  of  the  United  States,  and  honorably 
discharged,  who  shall  retain,  without  the  consent  of  the 
owner  or  ow^ners  thereof,  or  shall  refuse  to  deliver  or 
account  for  the  same  upon  demand  duly  made  by  the 
owner  or  owners  thereof,  or  by  their  agent  or  attorney, 
the  discharge-papers  or  land-warrant  of  any  such  sol- 
dier, sailor,  or  marine,  or  commissioned  officer,  which 
may  have  been  placed  in  his  hands  for  the  purpose  of  col- 
lecting said  claims,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall,  upon  conviction,  be  punished  by  fine 
not  exceeding  five  hundred  dollars,  or  by  imprisonment 
not  exceeding  six  months,  or  both,  at  the  discretion  of 
the  court,  and  shall  thereafter  be  debarred  from  prose- 
cuting any  such  claim  in  any  executive  department  of 
the  government.^ 

§  1434.  Attorney,  etc.,  demanding  more  than  legal 
compensation  or  who  withholds  any  part  of  a  pension 
guilty  of  high  misdemeanor.  Any  agent  or  attorney,  or 
any  other  person  instrumental  in  prosecuting  any  claim 
for  pension  or  bounty  land,  who  shall  directly  or  indi- 
rectly contract  for,  demand,  or  receive  or  retain  any 
greater  compensation  for  his  services,  or  instrumental- 
ity in  prosecuting  a  claim  for  pension  or  bounty  land  than 
is  provided  in  the  title  pertaining  to  pensions,  or  who 
shall  wrongfully  withhold  from  a  pensioner  or  claimant 
the  Avhole  or  any  part  of  the  pension  or  claim  allowed 
and  due  such  pensioner  or  claimant,  on  the  land  warrant 
issued  to  any  such  claimant,  shall  be  deemed  guilty  of  a 
high  misdemeanor,  and,  upon  conviction  thereof,  shall 
for  eveiy  such  offense  be  fined  not  exceeding  five  hun- 

1— Act    May    21,    1872,    17    Stat. 
137. 


1088  Criminal  Law 

dred  dollars,  or  imprisonment  at  hard  labor  not  exceed- 
ing two  years,  or  both,  at  the  discretion  of  the  court. 

PENSIONS 

§  1436.  Attorneys  retaining  or  collecting  for  more 
than  ten  dollars  in  securing  pensions — Punished  for 
violation.  That  no  agent,  attorney,  or  other  person  en- 
gaged in  preparing,  presenting,  or  prosecuting  any  claim 
under  the  provisions  of  this  act  shall,  directly  or  indi- 
rectly, contract  for,  demand,  receive,  or  retain  for  such 
services  in  preparing,  presenting,  or  prosecuting  such 
claim  a  sum  greater  than  ten  dollars,  which  sum  shall 
be  payable  only  upon  the  order  of  the  Commissioner  of 
Pensions,  by  the  pension  agent  making  payment  of  the 
pension  allowed,  and  any  person  who  shall  violate  any 
of  the  provisions  of  this  section,  or  who  shall  wrongfully 
withhold  from  a  pensioner  or  claimant  the  whole  or  any 
part  of  a  pension  or  claim  allowed  or  due  such  pensioner 
or  claimant  under  this  act,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall,  for  each 
and  every  such  offense,  be  fined  not  exceeding  five  hun- 
dred dollars,  or  be  imprisoned  at  hard  labor  not  exceed- 
ing two  years,  or  both,  in  the  discretion  of  the  court.* 

§  1437.  Illegal  in  increase  of  pension  to  contract  for  a 
greater  fee  than  two  dollars — Punishment  for  violation. 
Tliat  licivarier  no  agent  or  attorney  sliall  di'iiiaiid,  re- 
ceive, or  ])('  allowed  any  compensation  under  existing 
law  exceeding  two  dollars  in  any  claim  for  increase  of 
pension  on  account  of  the  increase  of  the  disability  for 
which  the  pension  lias  been  allowed,  or  for  services  ren- 
dered in  securing  llic  passage  of  any  special  act  of  con- 

4— Act  June  27,  1890,  26  Stat. 
183. 


Pensions  and  Allowances  to  Soldiers        1089 

gress  granting-  a  pension  or  an  increase  or  pension  in 
any  case  that  has  been  presented  at  the  pension  office  or 
is  allowable  under  the  general  pension  laws;  and  pro- 
vided further,  that  any  agent,  attorney,  or  other  person 
instrumental  in  prosecuting  any  claim  for  increase  of 
pension  on  account  of  the  increase  of  disability  for  which 
pension  w^as  allowed,  or  who  has  rendered  services  in 
procuring  the  passage  of  any  special  act  of  congress 
granting  a  pension  or  an  increase  of  pension  in  any  case 
that  has  been  presented  at  the  pension  office,  or  is  allow- 
able under  the  general  pension  laws,  who  shall  directly 
or  indirectly  contract  for,  demand,  receive,  or  retain  any 
compensation  for  such  services,  except  as  hereinbefore 
provided,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall,  for  each  and  every  such 
offense,  be  fined  not  exceeding  five  hundred  dollars  or 
imprisoned,  not  exceeding  tw^o  years  or  both,  in  the  dis- 
cretion of  the  court:  Provided,  however.  That  the  fore- 
going provisions  in  relation  to  fees  of  agents  or  attor- 
neys shall  not  apply  to  any  case  now  pending  where  there 
is  an  existing  lawful  contract  express  or  implied.^ 

§  1438.  Embezzlement  of  any  pension,  held  in  trust  as 
guardian,  etc.,  criminal.  That  every  guardian,  conserva- 
tor, curator,  committee,  tutor,  or  other  person  having 
charge  and  custody  in  fiduciaiy  capacity  of  the  pension 
of  his  ward,  who  shall  embezzle  the  same  in  violation  of 
his  trust,  or  fraudulently  convert  the  same  to  his  own  use, 
shall  be  punished  by  fine  not  exceeding  tw^o  thousand 
dollars,  or  imprisonment  at  hard  labor  for  a  term  not 
exceeding  five  years,  or  both,  at  the  discretion  of  the 
court.® 

5— Sec.  1,  Act  Mar.  3,  1891,  26    6— E.  S.  4783,  Act  Feb.  10,  1891, 
Stat.  1082.  26  Stat.  746. 

C.  L.— 69 


1090  Ceiminal  Law 

§  1439.  Pension  to  Civil  War  nurses — Attorney's  fee 
not  allowed — Violation  misdemeanor.  That  all  women 
employed  by  the  surgeon-general  of  the  aniiy  as  nurses, 
under  contract  or  otherwise,  during  the  late  war  of  the 
rebellion,  or  who  were  employed  as  nurses  during  such 
period  by  authority  which  is  recognized  by  the  AVar 
Department,  and  who  rendered  actual  service  as  nurses 
in  attendance  upon  the  sick  or  wounded  in  any  regimen- 
tal, post,  camp,  or  general  hospital  or  the  armies  of  the 
United  States  for  a  period  of  six  months  or  more,  and 
who  were  honorably  relieved  from  such  service,  and  who 
are  now  or  may  hereafter  be  unable  to  earn  a  support, 
shall,  upon  making  due  proof  of  the  fact  according  to 
such  rules  and  regulations  as  the  Secretaiy  of  the  Inte- 
rior may  provide,  be  placed  upon  the  list  of  pensioners 
of  the  United  States  and  be  entitled  to  receive  a  pension 
of  twelve  dollars  per  month,  and  such  pension  shall  com- 
mence from  the  date  of  filing  of  the  application  in  the 
pension  office  after  the  passage  of  this  act:  Provided, 
That  no  person  shall  receive  more  than  one  pension  for 
the  same  period. 

No  fee,  compensation,  or  allowance  shall  be  paid  to, 
received,  or  accepted  by  any  agent,  attorney,  or  other 
person  instrumental  in  the  prosecution  of  any  claim  for 
pension  under  this  act;  and  any  person  who  may  make 
any  claim  upon  any  applicant  for  any  fee,  compensation, 
or  allowance  shall  be  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  not  exceeding  five  hundred  dol- 
lars, or  imprisoned  at  hard  labor  not  exceeding  one  year, 
or  botli,  in  the  discretion  of  the  court;  and  it  sliall  l)e 
the  duty  of  tlie  Interior  and  War  Departments  to  render 
all  proper  aid  to  th^  applicants  under  this  acf 

§  1440.  False  oath  in  prosecuting  for  pension — Per- 
jury. 'I'li.it  before  the  name  of  any  person  shall  be  placed 

7 — SecH.    1    and    2,    Act     Aii>r.    5, 
1«fi2.    27   Stat.    .149. 


Pensions  and  Allowances  to  Soldiers        1091 

on  the  pension-roll  under  this  act,  proof  shall  be  made, 
under  such  rules  and  regulations  as  the  Secretary  of  the 
Interior  may  prescribe,  of  the  right  of  the  applicant  to 
a  pension;  and  any  person  who  shall  falsely  and  cor- 
ruptly take  any  oath  required  under  this  act  shall  be 
deemed  guilty  of  perjury;  and  the  Secretary  of  the  In- 
terior shall  cause  to  be  stricken  from  the  pension-roll 
the  name  of  any  person  whenever  it  shall  be  made  to 
appear  by  proof  satisfactory  to  him  that  such  name  was 
put  upon  such  roll  through  false  and  fraudulent  repre- 
sentations, and  that  such  person  is  not  entitled  to  a  pen- 
sion under  this  act.  The  loss  of  the  certificate  of  dis- 
charge will  not  deprive  any  person  of  the  benefits  of  this 
act,  but  other  evidence  of  service  performed  and  of  an 
honorable  discharge  may  be  deemed  sufficient.^ 

§  1441.  The  making  or  procuring-  to  be  made  a  false 
affidavit — Knowingly  concerning-  any  pension — And  any 
false  acknowledg-ement  criminal.  That  every  person  who 
knowingly  or  wilfully  makes  or  aids,  or  assists  in  the 
making,  or  in  any  wise  procures  the  making  or  presen- 
tation of  any  false  or  fraudulent  affidavit,  declaration, 
certificate,  voucher,  or  paper  ox  writing  pui*porting  to 
be  such,  concerning  any  claim  for  pension  or  payment 
thereof,  or  pertaining  to  any  other  matter  within  the 
jurisdiction  of  the  Commissioner  of  Pensions  or  of  the 
Secretary  of  the  Interior,  or  who  knowingly  or  wilfully 
makes  or  causes  to  be  made,  or  aids  or  assists  in  the 
making,  or  presents  or  causes  to  be  presented  at  any 
pension  agency  any  power  of  attorney  or  other  paper  re- 
quired as  a  voucher  in  drawing  a  pension,  which  paper 
bears  a  date  subsequent  to  that  upon  which  it  was  actu- 
ally signed  or  acknowledged  by  the  pensioner,  and  evei-y 
person  before  whom  any  declaration,  affidavit,  voucher, 
or  other  paper  or  writing  to  be  used  in  aid  of  the  prose- 

8— Sec.  3,  Act  July   27,   1892,  27 
Stat.   282. 


1092  Criminal  Law 

cut  ion  of  any  claim  for  pension  or  bounty  land  or  pay- 
ment thereof  purports  to  have  been  executed  who  shall 
knowingly  certify  that  the  declarant,  affiant,  or  witness 
named  in  such  declaration,  affidavit,  voucher,  or  other 
paper  or  writing-  personally  appeared  before  him  and 
was  sworn  thereto,  or  did  not  acknowledge  the  execu- 
tion thereof,  when,  in  fact,  such  declarant,  affiant,  or  wit- 
ness did  not  personally  appear  before  him  or  was  not 
sworn  thereto,  or  did  not  acknowledge  the  execution 
thereof,  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars,  or  by  imprisonment  for  a  term  of  not 
more  than  five  years.^ 

§  1442.  No  pension  attorney,  claim  agent  or  other  per- 
son shall  contract  for  any  fee  for  services  in  securing 
pensions  by  legislation  in  congress — Punishment.  That 
hereafter  no  pension  attorney,  claim  agent,  or  other 
person  shall  be  entitled  to  receive  any  compensation  for 
ser^dces  rendered  in  securing  tlio  introduction  of  a  bill 
or  the  passage  thereof  througii  congress  granting  pen- 
sion or  increase  of  pension,  and  any  person  who  shall, 
directly  or  indirectly,  contract  for,  demand,  receive,  or 
retain  any  compensation  for  such  services  shall  be 
deemed  guilty  of  an  offense,  and  upon  conviction  thereof 
shall,  for  each  and  every  such  offense,  be  fined  not  ex- 
ceeding five  hundred  dollars  or  imprisoned  not  exceeding 
two  years,  or  both,  in  the  discivtioii  of  the  court. ^° 

§  1443.  Forging  indorsement  of  any  person  on  pension 
check  or  uttering  of  such  check — Criminal.  That  who- 
ever sliall  I'orgi'  the  iiidoi'scnicut  of  the  person  to  whose 
order  any  pension  check  sliall  l)e  drawn,  or  wlioever  with 
the  knowledge  thai  such  iiidoi'scnuMil  is  rorgcd  shall 
niter   such    check,    or    whocxci-,    hy    Tnlsely   personating 

9— Act  .luly  7,  1898,  30  Stat.  718,  10— Sec.  1,  Act  May  28,  1908,  35 

H.   R.   4746.  Stat.  419. 


Pensions  and  Allowances  to  Soldiers        1093 

such  person,  shall  receive  from  any  person,  firm,  cor- 
poration, or  officer  or  employee  of  the  United  States  the 
whole  or  any  portion  of  the  amount  represented  by  such 
check,  shall  upon  conviction  be  punished  by  a  fine  of  not 
more  than  one  thousand  dollars  or  be  imprisoned  not 
more  than  five  years  or  both." 

§  1444.  Under  federal  compensation  act  accepting  com- 
pensation after  marriage — Where  same  ceases  upon  mar- 
riage. (L)  If  any  person  entitled  to  compensation  under 
this  section  [10  Act  Sept.  7,  1916],  whose  compensation 
by  the  terms  of  this  section  ceases  upon  his  marriage, 
accepts  any  payments  of  compensation  after  marriage, 
he  shall  be  punished  by  a  fine  of  not  more  than  $2,000 
or  by  imprisonment  for  not  more  than  one  year,  or  by 
both  such  fine  and  imprisonment.^^ 

SECUKING   PENSION   FOR  WIDOWS    AND   MINOR   CHILDREN 

§  1446.  War  insurance — Attorney's  fee — Punishment 
for  violation.  Sec.  405.  That  in  the  event  of  disagree- 
ment as  to  a  claim  under  the  contract  of  insurance  be- 
tween the  bureau  and  any  beneficiary  or  beneficiaries 
thereunder,  an  action  on  the  claim  may  be  brought 
against  the  United  States  in  the  district  court  of  the 
United  States  in  and  for  the  district  in  which  such 
beneficiaries  or  any  one  of  them  resides.  The  court,  as 
part  of  its  judgment,  shall  determine  and  allow  such 
reasonable  attorney's  fees,  not  to  exceed  ten  per  centum 
of  the  amount  recovered,  to  be  paid  by  the  claimant  on 
behalf  of  whom  such  proceedings  are  instituted  to  his 
attorney;  and  it  shall  be  unlawful  for  the  attorney  or 
for  any  other  person  acting  as  claim  agent  or  otherwise 
to  ask  for,  contract  for,  or  receive  any  other  compensa- 
tion because  of  such  action.    No  other  compensation  or 

11— Sec.    4,    Act    Aug.    17,    1912,  12— (Sec.  10)   Act  Sept.  7,  1916, 

37  Stat.  313.  39  Stat.  744. 


1094  Ckimin^al  Law 

fee  shall  be  charged  or  received  by  any  person  except 
such  as  may  be  authorized  by  the  commissioner  in  regu- 
lations to  be  promulgated  by  him.  Any  person  violat- 
ing the  provisions  of  this  section  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall, 
for  each  and  everj^  such  offense,  be  fined  not  exceeding 
$500,  or  be  imprisoned  at  hard  labor  not  exceeding  two 
years,  or  both,  in  the  discretion  of  the  court.^* 

§  1447.  Pensions — Granted  vv^idows,  etc.,  or  volunteers 
in  war  with  Spain,  Philippines,  and  China.    That  from 
and  after  the  passage  of  this  act  if  any  volunteer  of- 
ficer or  enlisted  man  who  served  ninety  days  or  more 
in  the  army,  navy,  or  marine  corps  of  the  United  States, 
during  the  war  with  Spain  or  the  Philippine  insurrec- 
tion, between  April  21,  1898,  and  July  4,  1902,  inclusive, 
service  to  be  computed  from  date  of  enlistment  to  date 
of  discharge,  or  any  officer  or  enlisted  man  of  the  regu- 
lar establishment  who  rendered  ninety  days   or  more 
actual  military  or  naval  service  in  the  United  States 
anny,  navy  or  marine  corps  in  the  war  with  Spain  or  the 
Philippine  insurrection,  between  April  21, 1898,  and  July 
4,  1902,  inclusive,  or  as  a  ])articipant  in  the  Chinese 
Boxer  rebellion  campaign  between  June  16,  1900,  and 
October  1,  1900,  and  who  has  been  honorably  discharged 
therefrom,   has   died  or  shall  hereafter  die   leaving   a 
widow  without  means  of  support  other  than  her  daily 
labor,  and  an  actual  net  income  not  exceeding  $250  per 
year,  or  leaving  a  minor  cliild  oi-  t'liildrcii  inidor  the  age 
of  sixteen  years,  such  widow  sliall  upon  due  proof  of  her 
husband's  death,  without  proving  liis  death  to  be  the 
result  of  liis  anny  or  navy  sen'ice,  be  placed  on  the  pen- 
sion I'oll   f'l-oni  llic  (Intc  of  llic   filing  of  lier  aiiplicalion 
therefor  nndci-  this  ad,  at  the  rate  of  $12.00  per  month 

14 — Sec.  40G,  Act  of  Congress, 
Oct.  6,  1917,  40  8tnt.  at  Large,  page 
410. 


Pensions  and  Allowances  to  Soldiees        1095 

during  her  widowhood,  and  shall  also  be  paid  $2.00  per 
month  for  each  child  of  such  officer  or  enlisted  man  under 
sixteen  years  of  age,  and  in  case  of  the  death  or  remar- 
riage of  the  widow,  leaving  a  child  or  children  of  such 
officer  or  enlisted  man  under  the  age  of  sixteen  years, 
such  pension  shall  be  paid  such  child  or  children  until 
the  age  of  sixteen:  Provided,  That  in  case  a  minor  child 
is  insane,  idiotic,  or  othenvise  permanently  helpless,  the 
pension  shall  continue  during  the  life  of  said  child,  or 
during  the  period  of  such  disability,  and  shall  commence 
from  the  date  of  application  therefor  after  the  passage 
of  this  act:  Provided  further.  That  said  widow  shall 
have  married  said  officer  or  enlisted  man  previous  to  the 
passage  of  this  act:  Provided,  however,  That  this  act 
shall  not  be  so  construed  as  to  reduce  any  pension  under 
any  act,  public  or  private.^^ 

§  1448.  Punishment  for  violation.  Sec.  2  (Act  July 
16,  1918).  That  no  agent,  attorney,  or  other  person  en- 
gaged in  preparing,  presenting,  or  prosecuting  any  claim 
mider  the  provisions  of  this  act  shall,  directly  or  indi- 
rectly, contract  for,  demand,  receive,  or  retain  for  such 
services  in  preparing,  presenting,  or  prosecuting  such 
claim  a  sum  greater  than  $10.00,  which  sum  shall  be 
payable  only  on  the  order  of  the  Commissioner  of  Pen- 
sions; and  any  person  who  shall  violate  any  of  the  pro- 
visions of  this  section,  or  shall  wrongfully  w^ithhold 
from  the  pensioner  or  claimant  the  whole  or  any  part  of 
the  pension  or  claim  allowed  or  due  such  pensioner  or 
claimant  under  this  act,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall,  for  each 
and  every  offense,  be  fined  not  exceeding  $500  or  be  im- 
prisoned not  exceeding  one  year,  or  both,  in  the  discre- 
tion of  the  court.^® 

15 — Act    of    Cons^ress,    July    16,  16 — Sec.  2,  Act  of  Coneress,  July 

1918.     Part  1,,  40  U.  S.  Statute  at       16,  1918,  Part  1,  40  13.  S    Stat,  at 
Large,  page  903.  Large,  page  904. 


CHAPTER  LXXV 


OFFENSES  AGAINST  THE  POSTAL  SERVICE 
CHAPTEE  EIGHT 

Penal  Code  Act,  March  4,  1909 


§  1452.  Conducting  postoffice  ■with- 
out authority. 

§  1453.  Illegal  carrying  of  mails  by 
carriers  and  others. 

§  1454.  Conveyance  of  mail  by  pri- 
vate express  forbidden. 

§  1455.  Transporting  persons  unlaw- 
fully   conveying    mail. 

§  1456.  Sending  letters  by  private 
express. 

§  1457.  Conveying  letters  over  post 
routes. 

§  1458.  Carrying  letters  out  of  the 
mail  on  board  of  vessel. 

§  1459.  When  conveying  letters  by 
private  persons  is  lawful. 

§  1460.  Wearing  uniform  of  carrier 
without  authority. 

§  14G1.  Vehicles,  etc.,  claiming  to 
be  mail  carriers. 

§  1462.  Injuring  mail  bags,  etc. 

§  1463.  Stealing  postoffice  property. 

§  1464.  Stealing  or  forging  mail 
locks   or  keys. 

§  1465.  Breaking  into  and  entering 
postoffice. 

§  1466.  Unlawfully  entering  postal 
car,  etc. 

i  1467.  Stealing,  secreting,  embez- 
zling, etc.,  mail  or  con- 
tents. 

§  1468.  PoHtniastcr  or  employee  of 
postal  service  detaining, 
dcHtroying,  or  embez/ling 
letter,  etc. 

K 


§  1469.  Postmaster,  etc.,  detaining 
or  destroying  newspapers. 

§  1470.  Assaulting  mail  carrier  with 
intent  to  rob,  and  robbing 
mail. 

§  1471.  Injuring  letter  boxes  or  mail 
matter;  assaulting  carrier, 
etc. 

§  1472.  Deserting  the  mail. 

§  1473.  Delivery  of  letters  by  mas- 
ter of  vessel. 

§  1474.  Obstructing   the   mail. 

§  1475.  Ferryman  delaying  the  mail. 

§  1476.  Letters  carried  in  a  foreign 
vessel  to  be  deposited  in 
a  postoffice. 

§  1477.  Vessels  to  deliver  letters  at 
postoffice ;   oath. 

§  1478.  Using,  selling,  etc.,  can- 
celled stamps ;  removing 
cancellation  marks  from 
stamps,  etc. 

§  1479.  False  returns  to  increase 
compensation. 

§  1480.  Collection  of  unlawful  post- 
age   forbidden. 

§  1481.  Unlawful  ph'dging  or  sale 
of   stamps. 

§  1482.  Failure  to  account  for 
postage  and  to  cancel 
stamps,    etc.,    by    officials. 

§  1483.  Issuing  money  order  with- 
out payment. 

§  ]4H4.  Obscene,  etc.,  matter  non- 
mailable. 


I!  Ml 


Offenses  Against  the  Postal  Service         1097 

§1485.  Libelous  and  indecent  wrap-  §1495.  Postmaster  illegally  approv- 

pers  and  envelopes.  ing  bond,  etc. 

§  1486.  Lottery,  gift  enterprise,  etc.,  §  1496.  False  evidence  as  to  second- 
circulars,    etc.,    not    mail-  class  matter. 

able.  §  1497.  Inducing      or      prosecuting 
§  1487.  Postmasters   not    to   be   lot-  false  claims. 

tery    agents.  §  1498.  Misappropriation    of    postal 
§  1488.  Use    of    mails    to    promote  funds  or  property. 

frauds.  §  1499.  Employees  not  to  become  in- 
§  1489.  Fraudulently    assuming    fie-  terested  in  contracts. 

titious  address.  §  1500.  Fraudulent    use    of    official 
§  1490.  Poisons  and  explosives  non-  envelopes. 

mailable.  §  1501.  Fraudulent    increase    of 
§  1491.  Counterfeiting     money      or-  -weight  of  mail. 

ders.  §  1502.  Offenses      against      foreign 
§  1492.  Counterfeiting       postage  mail  in  transit. 

stamps.  §  1503.  Omission   to  take   oath. 

§  1493.  Counterfeiting,   etc.,   foreign  §  1504.  Definitions. 

stamps. 
§  1494.  Inclosing      higher-class       in 

lower-class   matter. 

§  1452.  Conducting-  postoffice  without  authority.  Sec. 

179.  Whoever,  without  authority  from  the  Postmaster- 
General,  shall  set  up  or  profess  to  keep  any  office  or  place 
of  business  bearing  the  sign,  name,  or  title  of  postoffice, 
shall  be  fined  not  more  than  five  hundred  dollars. 

§  1453.  Illegal  carrying-  by  carriers  and  others.  Sec. 

180.  Whoever,  being  concerned  in  cariying  the  mail, 
shall  collect,  receive,  or  carry  any  letter  or  packet,  or 
cause  or  procure  the  same  to  be  done,  contrarj^  to  law, 
shall  be  fined  not  more  than  fifty  dollars,  or  imprisoned 
not  more  than  thirty  days,  or  both. 

§  1454.  Conveyance  of  mail  by  private  express  forbid- 
den. Sec.  181.  Whoever  shall  establish  any  private  ex- 
press for  the  conveyance  of  letters  or  packets,  or  in  any 
manner  cause  or  provide  for  the  conveyance  of  the  same 
by  regular  trips  or  at  stated  periods  over  any  post  route 
which  is  or  may  be  established  by  law,  or  from  any  city, 
town,  or  place,  to  any  other  city,  town,  or  place,  between 


1098  .       Criminal  Law 

which  the  mail  is  regularly  carried,  or  whoever  shall 
aid  or  assist  therein  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  six  months, 
or  both:  Provided,  That  nothing  contained  in  this  sec- 
tion shall  be  construed  as  prohibiting  any  person  from 
receiving  and  delivering  to  the  nearest  postoffice,  postal 
car,  or  other  authorized  depository  for  mail  matter,  any 
mail  matter  properly  stamped. 

§  1455.  Transporting  persons  unlawfully  conveying 
mail.  Sec.  182.  Whoever,  being  the  owner,  driver,  con- 
ductor, master,  or  other  person  having  charge  of  any 
stagecoach,  railway  car,  steamboat,  or  other  vehicle  or 
vessel,  shall  knowingly  convey  or  knowingly  pemiit  the 
conveyance  of  any  person  acting  or  employed  as  a  pri- 
vate express  for  the  conveyance  of  letters  or  packets, 
and  actually  in  possession  of  the  same  for  the  purpose 
of  conveying  them,  contrary  to  law,  shall  be  fined  not 
more  than  one  hundred  and  fifty  dollars. 

§  1456.  Sending  letters  by  private  express.  Sec.  183. 
Whoever  shall  transmit  by  private  express  or  other  un- 
lawful means,  or  deliver  to  any  agent  thereof,  or  deposit 
or  cause  to  be  deposited  at  any  appointed  place,  for  the 
purpose  of  being  so  transmitted,  any  letter  or  i);u'ket, 
sliall  be  fined  not  more  tlinii  (ifly  dollars. 

§  1457.  Conveying  letters  over  post  routes.  Sec.  184. 
Whoever,  being  tlic  owner,  driver,  coiKliictoi',  master,  or 
otlier  person  having  charge  of  any  stagecoach,  railway 
car,  steamboat,  or  conveyance  of  any  kind  which  regu- 
larly iieiM'ornis  trips  at  stated  |)eriods  on  any  post  I'oute, 
or  from  any  city,  lown,  oi-  ])Ia('e  to  any  oilier  cily,  or 
place  })etween  which  the  mail  is  regularly  carried,  and 
which  shall  carry,  othei'wise  than  in  the  mail,  any  letters 
or  ])ackets,  except  snch  as  relate  to  some  part  of  the 
cargo  of  snch  steaniboal  or  olher  vessel,  to  the  current 


Offenses  Against  the  Postal  Service         1099 

business  of  the  carrier,  or  to  some  article  carried  at  the 
same  time  by  the  same  stagecoach,  railway  car,  or  other 
vehicle,  except  as  otherwise  provided  by  law,  shall  be 
fined  not  more  than  fifty  dollars. 

§  1458.  Carrying  letters  out  of  the  mail  on  board  ves- 
sel. Sec.  185.  AVhoever  shall  carry  any  letter  or  packet 
on  board  any  vessel  which  carries  the  mail,  otherwise 
than  in  such  mail,  except  as  otherwise  provided  by  law, 
shall  be  fined  not  more  than  fifty  dollars,  or  imprisoned 
not  more  than  one  month,  or  both. 

§  1459.  When  conveying  cf  letters  by  private  persons 
is  lawful.  Sec.  186.  Nothing  in  this  chapter  shall  be  con- 
strued to  prohibit  the  conveyance  or  transmission  of  let- 
ters or  packets  by  private  hands  without  compensation, 
or  by  special  messenger  employed  for  the  particular  oc- 
casion only. 

§  1460.  Wearing  uniform  of  carrier  without  authority. 

Sec.  187.  Whoever,  not  being  connected  with  the  letter- 
carrier  branch  of  the  postal  service,  shall  wear  the  uni- 
form or  badge  which  may  be  prescribed  by  the  Post- 
master-General, to  be  worn  by  letter  carriers,  shall  be 
fined  not  more  than  one  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both. 

§  1461.  Vehicles,  etc.,  claiming  to  be  mail  carriers.  Sec. 
188,  It  shall  be  unlawful  to  paint,  print,  or  in  any  man- 
ner to  place  upon  or  attach  to  any  steamboat  or  other 
vessel,  or  any  car,  stage-coach,  vehicle,  or  other  con- 
veyance, not  actually  used  in  carrying  the  mail,  the 
words  ''United  States  Mail,"  or  any  words,  letters,  or 
characters  of  like  import;  or  to  give  notice,  by  publish- 
ing in  any  newspaper  or  otherwise,  that  any  steamboat 
or  other  vessel,  or  any  car,  stage-coach,  vehicle,  or  other 
conveyance,  is  used  in  carrying  the  mail,  when  the  same 


1100  Criminal  Law 

is  not  actually  so  used;  and  every  person  who  shall  vio- 
late, and  every  owner,  receiver,  lessee,  or  managing 
operator  thereof,  who  shall  cause,  suffer,  or  permit  the 
violation  of  any  provision  of  this  section,  shall  be  liable, 
and  shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  two  years,  or  both. 

§  1462.  Injuring-  mail  bags,  etc.  Sec.  189.  Whoever 
shall  tear,  cut,  or  otherwise  injure  any  mail  bag,  pouch, 
or  other  thing  used  or  designed  for  use  in  the  conveyance 
of  the  mail,  or  shall  draw  or  break  anj^  staple  or  loosen 
any  part  of  any  lock,  chain,  or  strap  attached  thereto, 
with  intent  to  rob  or  steal  any  such  mail,  or  to  render 
the  same  insecure,  shall  be  fined  not  more  than  five  hun- 
dred dollars,  or  imprisoned  not  more  than  three  years,  or 
both. 

§  1463.  Stealing  post-office  property.  Sec.  190.  Who- 
ever shall  steal,  purloin,  or  embezzle  any  mail  bag  or 
other  property  in  use  by  or  belonging  to  the  Postoffice 
Department,  or  shall  approi3riate  any  such  property  to 
his  own  use  or  any  other  than  its  proper  use,  or  shall  con- 
vey away  any  such  property  to  the  hindrance  or  detri- 
ment of  the  public  service,  shall  be  fined  not  more  than 
two  hundred  dollars,  or  imprisoned  not  more  than  three 
years,  or  both. 

§  1464.  Stealing-  or  forging  mail  locks  or  keys.  Sec. 
191.  Whoever  shall  steal,  purloin,  embezzle,  or  obtain  by 
any  false  pretense,  or  shall  aid  or  assist  in  stealing,  pur- 
loining, embezzling,  or  obtaining  by  any  false  pretense, 
any  key  suited  to  [iny  lock  adojited  by  the  Postoffice  De- 
partment and  in  use  on  any  of  the  mails  or  bags  thereof, 
or  any  key  to  any  lock  box,  lock  drawer,  or  other  author- 
ized receptacle  for  the  deposit  or  deliver}^  of  mail  mat- 
ter; or  whoever  shall   knowingly  and  unlawfully  make, 


Offenses  Against  the  Postal  Service         1101 

forge,  or  counterfeit,  or  cause  to  be  unlawfully  made, 
forged,  or  counterfeited,  any  such  key,  or  shall  have  in 
his  possession  any  such  mail  lock  or  key  with  the  intent 
unlawfully  or  improperly  to  use,  sell,  or  otherwise  dis- 
pose of  the  same,  or  to  cause  the  same  to  be  unlawfully 
or  improperly  used,  sold,  or  otherwise  disposed  of;  or 
whoever,  being  engaged  as  a  contractor  or  otherwise  in 
the  manufacture  of  any  such  mail  lock  or  key,  shall  de- 
liver or  cause  to  be  delivered,  any  finished  or  unfinished 
lock  or  key  used  or  designed  for  use  by  the  Department, 
or  the  interior  part  of  any  such  lock,  to  any  person  not 
duly  authorized  under  the  hand  of  the  Postmaster-Gen- 
eral and  the  seal  of  the  Postoffice  Department,  to  receive 
the  same,  unless  the  person  receiving  it  is  the  contractor 
for  furnishing  the  same  or  engaged  in  the  manufacture 
thereof  in  the  manner  authorized  by  the  contract,  or  the 
agent  of  such  manufacturer,  shall  be  fined  not  more  than 
five  hundred  dollars  and  imprisoned  not  more  than  ten 
years. 

§  1465.  BreaJcing  into  and  entering  postoffice.  Sec.  192. 
Whoever  shall  forcibly  break  into  or  attempt  to  break 
into  any  postoffice,  or  any  building  used  in  whole  or  in 
part  as  a  postoffice,  with  intent  to  commit  in  such  post- 
office,  or  building,  or  part  thereof,  so  used,  any  larceny 
or  other  depredation,  shall  be  fined  not  more  than  one 
thousand  dollars  and  imprisoned  not  more  than  five 
years. 

§  1466.  Unlawfully  entering  postal  car,  etc.  Sec.  193. 
Whoever,  by  violence,  shall  enter  a  postoffice  car,  or  any 
apartment  in  any  car,  steamboat,  or  vessel,  assigned  to 
the  use  of  the  Mail  Service,  or  shall  wilfully  or  mali- 
ciously assault  or  interfere  with  any  postal  clerk  in  the 
discharge  of  his  duties  in  connection  with  such  car, 
steamboat,  vessel,  or  apartment  thereof,  or  shall  wilfully 


1102  Criminal  Law 

aid  or  assist  therein,  shall  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  three 
years,  or  both. 

§  1467.  Stealing,  secreting,  embezzling,  etc.,  mail  mat- 
ter or  contents.  Sec.  lO-l.  AVhoevcr  shall  steal,  take,  or 
abstract,  or  by  fraud  or  deception  obtain,  from  or  out  of 
any  mail,  postoffice,  or  station  thereof,  or  other  author- 
ized depository  for  mail  matter,  or  from  a.  letter  or  mail 
carrier,  any  letter,  postal  card,  package,  bag,  or  mail, 
or  shall  abstract  or  remove  from  any  such  letter,  package, 
bag,  or  mail,  any  article  or  thing  contained  therein,  or 
shall  secrete,  embezzle,  or  destroy  any  such  letter,  postal 
card,  package,  bag,  or  mail,  or  any  article  or  thing  con- 
tained therein;  or  whoever  shall  buy,  receive,  or  conceal, 
or  aid  in  buying,  receiving,  or  concealing,  or  shall  unlaw- 
fully have  in  his  possession,  any  letter,  postal  card, 
package,  bag,  or  mail,  or  any  article  or  thing  contained 
therein,  which  has  been  so  stolen,  taken,  embezzled,  or 
abstracted,  as  herein  described,  knowing  the  same  to 
have  been  so  stolen,  taken,  embezzled,  or  abstracted;  or 
whoever  shall  take  any  letter,  postal  card,  or  package, 
out  of  any  postoffice  or  station  thereof,  or  out  of  any 
authorized  depository  foi-  mail  matter,  or  from  any  letter 
or  mail  carrier,  or  wliicli  lias  l)eeu  in  any  postoflice  or 
slalidii  thereof,  or  ollici-  autlioiizod  depository,  or  in 
the  custody  of  any  letter  oi-  mail  carrier,  before  it  has 
1)0011  delivered  to  the  person  to  whom  it  was  directed, 
with  a  design  to  obstruct  tlie  correspondonce,  or  1o  ])ry 
into  the  husinoss  oi'  secrets  oi'  anothoi',  oi"  shall  o])on, 
secrete,  enibozzlo,  or  destroy  the  saiiio,  shall  bo  iiiiod  not 
more  than  two  thousand  dollars,  or  im])ris()ned  not  more 
than   live  years,  or  both. 

^  1468.  Postmaster  or  employee  of  postal  service  de- 
taining, destroying,  or  embezzling  letter,  etc.  See.  VMi'). 
Whoever,  lioing  a  postmastei-  or  dthcr  jioison  employed 


Offenses  Against  the  Postal  Service         1103 

in  any  department  of  the  postal  service,  shall  unlawfully 
detain,  delay,  or  open  any  letter,  postal  card,  package, 
bag,  or  mail  intrusted  to  him  or  which  shall  come  into 
his  possession,  and  which  was  intended  to  be  conveyed 
by  mail,  or  carried  or  delivered  by  any  carrier,  mes- 
senger, agent,  or  other  person  employed  in  any  depart- 
ment of  the  postal  servdce,  or  forwarded  through  or 
delivered  from  any  postoffice  or  station  thereof  estab- 
lished by  authority  of  the  Postmaster  General;  or  shall 
secrete,  embezzle,  or  destroy  any  such  letter,  postal  card, 
package,  bag,  or  mail;  or  shall  steal,  abstract,  or  remove 
from  any  such  letter,  jjackage,  bag,  or  mail,  any  article 
or  thing  contained  therein,  shall  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  five 
years,  or  both. 

§  1469.  Postmaster,  etc.,  detaining-  or  destroying-  news- 
papers. Sec.  196.  Whoever,  being  a  postmaster  or  other 
person  employed  in  any  department  of  the  postal  serv- 
ice, shall  improperly  detain,  delay,  embezzle,  or  destroy 
any  newspaper,  or  permit  any  other  person  to  detain, 
delay,  embezzle,  or  destroy  the  same,  or  open,  or  permit 
any  other  person  to  open,  any  mail  or  package  of  news- 
papers not  directed  to  the  office  where  he  is  employed; 
or  whoever  shall  open,  embezzle,  or  destroy  any  mail  or 
package  of  newspapers  not  being  directed  to  him,  and  he 
not  being  authorized  to  open  or  receive  the  same;  or 
whoever  shall  take  or  steal  any  mail  or  package  of  news- 
papers from  any  postoffice  or  from  any  person  having 
custody  thereof,  shall  be  fined  not  more  than  one  hundred 
dollars,  or  imprisoned  not  more  than  one  year,  or  both. 

§  1470.  Assaulting  mail  carrier  with  intent  to  rob,  and 
robbing  mail.  Sec.  197.  Whoever  shall  assault  any  per- 
son having  lawful  charge,  control,  or  custody  of  any 
mail  matter,  with  intent  to  rob,  steal,  or  purloin  such 
mail  matter  or  any  part  thereof,  or  shall  rob  any  such 


110-1:  Criminal  Law 

person  of  such  mail  or  any  part  thereof,  shall,  for  a  first 
offense,  be  miprisoned  not  more  than  ten  years;  and  if 
in  effecting  or  attempting  to  eifect  such  robbeiy,  he  shall 
wound  the  person  having  the  custody  of  the  mail,  or  put 
his  life  in  jeopardy  by  the  use  of  a  dangerous  weapon, 
or  for  a  subsequent  offense,  shall  be  imprisoned  twenty- 
five  years. 

§  1471.  Maliciously  opening  mail  or  letter  box.  Sec. 
198.  AVhoevcr  shall  wilfully  or  maliciously  injure,  tear 
down,  or  destroy  any  letter  box  or  other  receptacle  in- 
tended or  used  for  the  receipt  or  delivery  of  mail  on  any 
mail  route,  or  shall  break  open  the  same,  or  shall  wil- 
fully or  maliciously  injure,  deface,  or  destroy  any  mail 
deposited  therein,  or  shall  wilfully  take  or  steal  such 
mail  from  or  out  of  such  letter  box  or  other  receptacle, 
or  shall  willfully  aid  or  assist  in  any  of  the  aforemen- 
tioned offenses,  shall  for  eveiy  such  offense  be  punished 
by  a  fine  of  not  more  than  $1,000  or  by  imprisonment 
for  not  more  than  three  years. ^ 

§  1472.  Deserting  the  mail.  Sec.  199.  Whoever,  having 
taken  charge  of  any  mail,  shall  voluntarily  quit  or  desert 
the  same  before  he  has  delivered  it  into  the  postollice  at 
tlie  tennination  of  the  route,  or  to  some  known  mail 
carrier,  messenger,  agent,  or  other  ciiiidoycc  in  the  postal 
sei-vice  authorized  to  receive  the  same,  shall  be  lined  not 
more  than  live  hundi-ed  dollars,  or  imprisoned  not  more 
than  one  year,  or  both, 

§  1473.  Delivery  of  letters  by  master  of  vessel.  Sec. 
200.  ''j'iic  niaslci-  or  othci-  person  iiaving  cliargc  or  con- 
ti-ol  <>\'  any  slcamhiiat  or  other  vessel  j)assing  l)etween 
ports  oi-  places  in  ihc  I  iiitecl  Stales,  ai'riving  at  any 
such  port  or  ])laee  where  Iheie  is  a  poslofliee,  shall  de- 

1 — AiiioiiiliiiK    Hec.    198,    C.    Code, 
39  Stat.  418,  Act  July  28,  1916. 


Offenses  Against  the  Postal  Service         1105 

liver  to  the  postmaster  or  at  the  postoffice  within  three 
hours  after  his  arrival,  if  in  the  daytime,  and  if  at  night, 
within  two  hours  after  the  next  sunrise,  all  letters  and 
packages  brought  by  him  or  within  his  power  or  control 
and  not  relating  to  the  cargo,  addressed  to  or  destined 
for  such  port  or  place,  for  which  he  shall  receive  from 
the  postmaster  two  cents  for  each  letter  or  package  so 
delivered,  unless  the  same  is  carried  under  a  contract 
for  carrying  the  mail;  and  for  every  failure  so  to  deliver 
such  letters  or  packages,  the  master  or  other  person 
having  charge  or  control  of  such  steamboat  or  other 
vessel,  shall  be  fined  not  more  than  one  hundred  and 
fifty  dollars. 

§  1474.  Obstructing-  the  mall.  Sec.  201.  Whoever  shall 
knowingly  and  wilfully  obstruct  or  retard  the  passage 
of  the  mail,  or  any  carriage,  horse,  driver,  or  carrier,  or 
car,  steamboat,  or  other  conveyance  or  vessel  carrying 
the  same,  shall  be  fined  not  more  than  one  hundred  dol- 
lars, or  imprisoned  not  more  than  six  months,  or  both. 

§  1475.  Ferryman  delaying  the  mail.  Sec.  202.  Who- 
ever, being  a  ferryman,  shall  delay  the  passage  of  the 
mail  by  wilful  neglect  or  refusal  to  transport  the  same 
across  any  feriy,  shall  be  fined  not  more  than  one  hun- 
dred dollars. 

§  1476.  Letters  carried  in  a  foreign  vessel  to  be  de- 
posited in  a  postoffice.  Sec.  203.  All  letters  or  other  mail- 
able matter  conveyed  to  or  from  any  part  of  the  United 
States  by  any  foreign  vessel,  except  such  sealed  letters 
relating  to  such  vessel  or  any  part  of  the  cargo  thereof 
as  may  be  directed  to  the  owners  or  consignees  of  the 
vessel,  shall  be  subject  to  postage  charge,  whether  ad- 
dressed to  any  person  in  the  United  States  or  elsewhere, 
provided  they  are  conveyed  by  the  packet  or  other  ship 
of  a  foreign  country  imposing  postage  on  letters  or  other 

C.  L.— 70 


11U6  Criminal  Law 

mailable  matter  conveyed  to  or  from  such  comitiy  by 
any  vessel  of  the  United  States;  and  such  letters  or  other 
mailable  matter  carried  in  foreign  vessels,  except  such 
sealed  letters  relating  to  the  vessel  or  any  part  of  the 
cargo  thereof  as  may  be  directed  to  the  owners  or  con- 
signees, shall  be  delivered  into  the  United  States  post- 
office  by  the  master  or  other  person  having  charge  or 
control  of  such  vessel  when  arriving,  and  be  taken  from 
the  United  States  postoffice  when  departing,  and  the 
postage  justly  chargeable  by  law  paid  thereon;  and  for 
refusing  or  failing  to  do  so,  or  for  conveying  such  letters 
or  other  mailable  matter,  or  any  letters  or  other  mailable 
matter,  intended  to  be  conveyed  in  any  vessel  of  such 
foreign  countiy,  over  or  across  the  United  States,  or  any 
portion  thereof,  the  party  offending  shall  be  fined  not 
more  than  one  thousand  dollars. 

§  1477.  Vessels  to  deliver  letters  at  postoffice ;  oath. 
Sec.  204.  No  vessel  arriving  within  a  port  or  collection 
district  of  the  United  States  shall  be  allowed  to  make 
entry  or  break  bulk  until  all  letters  on  board  are  deliv- 
ered to  the  nearest  postoffice,  and  the  master  or  other 
person  having  charge  or  control  thereof  has  signed  and 
sworn  to  the  following  declaration  before  the  collector, 
or  other  proper  customs  officer: 

I,  A.  B.,  master ,  of  the   ,  arriving  from 

,  and  now  lying  in  the  port  of ,  do  solemnly 

swear  (or  affirm)  tliat  I  have  to  the  best  of  my  knowl- 
edge  and   belief   delivered    to   the   postoffice   at    

every  letter  and  every  bag,  })acket,  or  parcel  of  letters 
whicli  was  on  board  the  said  vessel  during  her  last 
voyage,  or  which  were  in  my  possession  or  under  my 
powci"  or  coiiti'ol. 

And  any  mastcT  or  other  person  liaving  charge  or 
control  of  sucli  vessel  who  shall  break  bulk  before  lie 
has  delivered  such  letters  shall  be  fined  not  more  than 
one  hundred  dollars. 


Offenses  Against  the  Postal  Service         1107 

§  1478.  Using,  selling,  etc.  cancelled  stamps;  removing 
cancellation  marks  from  stamps,  etc.  Sec.  205.  Whoever 
shall  use  or  attempt  to  use  in  payment  of  postage  any 
cancelled  postage  stamp,  whether  the  same  has  been 
used  or  not;  or  shall  remove,  attempt  to  remove,  or 
assist  in  removing,  the  cancelling  or  defacing  marks 
from  any  postage  stamp,  or  the  superscription  from  any 
stamped  envelope,  or  postal  card,  that  has  once  been  used 
in  payment  of  postage,  with  the  intent  to  use  the  same 
for  a  like  purpose,  or  to  sell  or  offer  to  sell  the  same,  or 
shall  knowingly  have  in  possession  any  such  postage 
stamp,  stamped  envelope,  or  postal  card,  with  intent  to 
use  the  same,  or  shall  knowingly  sell  or  offer  to  sell  any 
such  postage  stamp,  stamped  envelope,  or  postal  card, 
or  use  or  attempt  to  use  the  same  in  payment  of  postage; 
or  whoever  unlawfully  and  wilfully  shall  remove  from 
any  mail  matter  any  stamp  attached  thereto  in  pay- 
ment of  postage;  or  shall  knowingly  use  or  cause  to  be 
used  in  payment  of  postage,  any  postage  stamp,  postal 
card,  or  stamped  envelope,  issued  in  pursuance  of  law, 
which  has  already  been  used  for  a  like  purpose;  shall, 
if  he  be  a  person  employed  in  the  postal  service,  be  fined 
not  more  than  five  hundred  dollars,  or  imprisoned  not 
more  than  three  years,  or  both;  and  if  he  be  a  person 
not  employed  in  the  postal  service,  shall  be  fined  not 
more  than  five  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both. 

§  1479.  False  returns  to  increase  compensation.  Sec. 
206.  AVhoever,  being  a  postmaster  or  other  person  em- 
ployed in  any  branch  of  the  postal  service,  shall  make, 
or  assist  in  making,  or  cause  to  be  made,  a  false  return, 
statement,  or  account  to  any  officer  of  the  United  States, 
or  shall  make,  assist  in  making,  or  cause  to  be  made, 
a  false  entry  in  any  record,  book,  or  account,  required 
by  law  or  the  rules  or  regulations  of  the  Postoffice  De- 
partment to  be  kept  in  respect  of  the  business  or  opera- 


1108  Crimin.il.  Law 

tious  of  any  postoffice  or  other  branch  of  the  postal  serv- 
ice, for  the  purpose  of  fraudulently  increasing  his  com- 
pensation or  the  compensation  of  the  postmaster  or  any 
employee  in  a  postoffice ;  or  whoever,  being  a  postmaster 
or  other  person  employed  in  any  postoffice  or  station 
thereof,  shall  induce,  or  attempt  to  induce,  for  the  pur- 
pose of  increasing  the  emoluments  or  compensation  of 
his  office,  any  person  to  deposit  mail  matter  in,  or  for- 
ward in  any  manner  for  mailing  at,  the  ofiice  where  such 
postmaster  or  other  person  is  employed,  knowing  such 
matter  to  be  properly  mailable  at  another  postoffice, 
shall  be  lined  not  more  than  five  hundred  dollars,  or  im- 
prisoned not  more  than  two  years,  or  both. 

§  1480.  Collection  of  imlawful  postage  forbidden.  Sec. 
207.  AVhoever,  being  a  postmaster  or  other  person  author- 
ized to  receive  the  postage  of  mail  matter,  shall  fraudu- 
lently demand  or  receive  any  rate  of  postage  or  gratuity 
or  reward  otlier  than  is  provided  by  law  for  the  postage 
of  such  mail  matter,  shall  be  fined  not  more  than  one 
hundred  dollars,  or  imprisoned  not  more  than  six  months, 
or  both. 

§  1481.  Unlawful  pledging  or  sale  of  stamps.  Sec.  208. 
Whoever,  being  a  postmaster  or  otlier  person  employed 
in  any  branch  of  the  postal  service,  and  being  intrusted 
with  the  sale  or  custody  of  postage  stamps,  stamped  en- 
vehjpes,  or  postal  cards,  sliall  use  or  dispose  of  them  in 
the  payment  of  debts,  or  in  Hh'  purdiase  of  merchandise 
or  other  salable  articles,  or  ])ledge  or  liyi)()lliecate  the 
same,  or  sell  or  dispose  of  them  except  for  cash;  or  sell 
or  dispose  of  postage  stamps  or  postal  cards  for  any 
larger  or  less  sum  11i;iii  I  lie  values  indicated  on  their 
faces;  or  sell  or  dis])(>se  of  slampcd  etivolopes  for  a  larger 
or  less  suiii  Ihau  is  charged  therefor  by  the  Postoflice  De- 
partment for  like  (|uaiitities;  or  sell  or  dispose  of,  or 
cause  to  be  sold  oi-  disposed  of,  i)ostage  stamps,  stamped 


Offenses  Against  the  Postal  Service         1109 

envelopes,  or  postal  cards  at  any  point  or  place  outside  of 
the  delivery  of  the  ofifice  where  such  postmaster  or  other 
person  is  employed;  or  induce  or  attempt  to  induce,  for 
the  purpose  of  increasing  the  emoluments  or  compensa- 
tion of  such  postmaster,  or  the  emoluments  or  compensa- 
tion of  any  other  person  employed  in  such  postoffice  or 
any  station  thereof,  or  the  allowances  or  facilities  pro- 
vided therefor,  any  person  to  purchase  at  such  postoffice 
or  any  station  thereof,  or  from  any  employee  of  such 
postoffice,  postage  stamps,  stamped  envelopes,  or  postal 
cards;  or  sell  or  dispose  of  postage  stamps,  stamped  en- 
velopes, or  postal  cards,  otherwise  than  as  provided  by 
law  or  the  regulations  of  the  Postoffice  Department,  shall 
be  fined  not  more  than  five  hundred  dollars,  or  impris- 
oned not  more  than  one  year,  or  both. 

§  1482.  Failure  to  account  for  postage  and  to  cancel 
stamps,  etc.,  by  officials.  Sec.  209.  Whoever,  being  a  post- 
master or  other  person  engaged  in  the  postal  service, 
shall  collect  and  fail  to  account  for  the  postage  due  upon 
any  article  of  mail  matter  which  he  may  deliver,  without 
having  previously  affixed  and  canceled  the  special  stamp 
provided  by  law,  or  shall  fail  to  affix  such  stamp,  shall 
be  fined  not  more  than  fifty  dollars. 

§  1483.  Issuing-  money  order  without  payment.  Sec. 
210.  Whoever,  being  a  postmaster  or  other  person  em- 
ployed in  any  branch  of  the  postal  sei'vice,  shall  issue  a 
money  order  without  having  previously  received  the 
money  therefor,  shall  be  fined  not  more  than  five  hundred 
dollars. 

§  1484.  Excluding  obscene,  book,  pamphlet,  from  mail. 
Sec.  211.  Every  obscene,  lewd,  or  lascivious,  and  every 
filthy,  book,  pamphlet,  picture,  paper,  letter,  writing, 
print,  or  other  publication  of  an  indecent  character,  and 
every  article  or  thing  designed,  adapted,  or  intended  for 


1110  Criminal  Law 

preventing  conception  or  producing  abortion,  or  for  any 
indecent  or  immoral  use;  and  eveiy  article,  instrument, 
substance,  dnig,  medicine,  or  thing  which  is  advertised 
or  described  in  a  manner  calculated  to  lead  another  to 
use  or  apply  it  for  preventing  conception  or  producing 
abortion,  or  for  any  indecent  or  immoral  pui-poso,  and 
every  written  or  printed  card,  letter,  circular,  book, 
pamphlet,  advertisement,  or  notice  of  any  kind  giving 
information  directly  or  indirectly,  where,  or  how,  or 
from  whom,  or  by  what  means  any  of  the  hereinbefore- 
mentioned  matters,  articles  or  things  may  be  obtained 
or  made,  or  where  or  by  whom  any  act  or  operation  of 
any  kind  for  the  procuring  or  producing  of  abortion 
will  be  done  or  performed,  or  how  or  by  what  means 
conception  may  be  prevented  or  abortion  produced, 
whether  sealed  or  unsealed;  and  every  letter,  packet,  or 
package,  or  other  mail  matter  containing  any  lilthy,  vile, 
or  indecent  thing,  device,  or  substance ;  and  every  paper, 
writing,  advertisement,  or  representation  that  any  ar- 
ticle, instrument,  substance,  dnig,  medicine,  or  thing 
may,  or  can  be,  used  or  applied  for  preventing  concep- 
tion or  producing  abortion,  or  for  any  indecent  or  im- 
moral purpose;  and  every  description  calculated  to  in- 
duce or  incite  a  person  to  so  use  or  a]iply  any  such 
article,  instrument,  substance,  drug,  medicine,  or  thing, 
is  hereby  declared  to  be  nonmailal)k^  matter  and  sliall 
not  l)e  conveyed  in  llic  mails  oi'  (h'livci'cd  iVom  any  ])ost- 
ofTice  or  by  any  letter  carrier.  Whoever  sliall  knowingly 
deposit,  or  cause  to  be  deposited  for  mailing  oi-  delivery, 
anylliing  declared  by  this  section  to  be  nonmailable,  or 
sli.'ill  k-nowingly  take,  oi-  c.-nise  the  sain(>  to  be  taken, 
fi'oin  tiie  mails  for  the  purpose  of  circulating  or  disi)osing 
thereof,  or  of  aiding  in  the  circulation  or  disjjosition 
thereof,  shall  be  fined  not  more  than  five  thousand  dol- 
lars, OI-  inijjrisoned  not  more  1h;in  live  years,  or  both. 
And  the  tenn  "indecent"  williin  (lie  iiilendinent  of  this 


Ofp^enses  Against  the  Postal  Service        1111 

section  shall  include  matter  of  a  character  tending  to 
incite,  arson,  murder,  or  assassination.^ 

§  1485.  Libelous  and  indecent  envelopes  and  wrappers. 
Sec.  212.  All  matter  otherwise  mailable  by  law,  upon  the 
envelope  or  outside  cover  or  wrapper  of  which,  or  any- 
postal  card  upon  which  any  delineations,  epithets,  terms, 
or  language  of  an  indecent,  lewd,  lascivious,  obscene, 
libelous,  scurrilous,  defamatory,  or  threatening  character, 
or  calculated  by  the  terms  or  manner  or  style  of  display 
and  obviously  intended  to  reflect  injuriously  upon  the 
character  or  conduct  of  another,  may  be  written  or 
printed  or  otherwise  impressed  or  apparent,  are  hereby 
declared  nonmailable  matter,  and  shall  not  be  conveyed 
in  the  mails  nor  delivered  from  any  postoffice  nor  by 
any  letter  carrier,  and  shall  be  withdrawn  from  the  mails 
under  such  regulations  as  the  Postmaster  General  shall 
prescribe.  Whoever  shall  knowingly  deposit  or  cause  to 
be  deposited,  for  mailing  or  delivery,  anything  declared 
by  this  section  to  be  nonmailable  matter,  or  shall  know- 
ingly take  the  same  or  cause  the  same  to  be  taken  from 
the  mails  for  the  purpose  of  circulating  or  disposing  of 
or  aiding  in  the  circulation  or  disposition  of  the  same, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both. 

§  1486.  Lottery,  g-ift  enterprise,  etc.,  circidars,  etc.,  not 
mailable.  Sec.  213.  No  letter,  package,  postal  card,  or 
circular  concerning  any  lottery,  gift  enterprise,  or  simi- 
lar scheme  offering  prizes  dependent  in  whole  or  in  part 
upon  lot  or  chance;  and  no  lotterj"  ticket  or  part  thereof, 
or  paper,  certificate,  or  instrument  pui*porting  to  be  or 
to  represent  a  ticket,  chance,  share  or  interest  in  or  de- 
pendent upon  the  event  of  a  lottery,  gift  enterprise,  or 

2 — See.  211,  C.  Code,  amended 
Sec.  2,  Act  Mar.  4,  1911,  36  Stat. 
1339. 


1112  Criminal  Law 

similar  scheme  offering  prizes  dependent  in  whole  or  in 
part  upon  lot  or  chance;  and  no  check,  draft,  bill,  money, 
postal  note,  or  money  order,  for  the  purchase  of  any 
ticket  or  part  thereof,  or  of  any  share  or  chance  in  any 
such  lotteiy,  gift  enterprise,  or  scheme;  and  no  newspa- 
per, circular,  pamphlet,  or  publication  of  any  kind  con- 
taining any  advertisement  of  any  lottery,  gift  enterprise, 
or  scheme  of  any  kind  offering  prizes  dependent  in  whole 
or  in  part  upon  lot  or  chance,  or  containing  anj'-  list  of 
the  prizes  drawn  or  awarded  by  means  of  any  such  lot- 
tery, gift  enterprise,  or  scheme,  whether  said  list  con- 
tains any  part  or  all  of  such  prizes,  shall  be  deposited  in 
or  carried  by  the  mails  of  the  United  States,  or  be  de- 
livered by  any  postmaster  or  letter  carrier.  Whoever 
shall  knowingly  deposit  or  cause  to  be  deposited,  or  shall 
knowingly  send  or  cause  to  be  sent,  anything  to  be  con- 
veyed or  delivered  by  mail  in  violation  of  the  provisions 
of  this  section,  or  shall  knowingly  deliver  or  cause  to 
be  delivered  by  mail  anything  herein  forbidden  to  be 
carried  by  mail,  shall  be  lined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  two  years,  or 
both ;  and  for  any  subsequent  offense  shall  be  imprisoned 
not  more  than  five  years.  Any  person  violating  any 
provision  of  this  section  may  be  tried  and  punished 
either  in  tlie  district  in  which  the  unlawful  matter  or 
publication  was  mailed,  or  to  which  it  was  carried  by 
mail  for  deliveiy  according  to  the  direction  thereon,  or 
in  which  it  was  caused  to  be  delivered  by  mail  to  the 
person  to  whom  it  was  addressed. 

§  1487.  Postmasters  not  to  be  lottery  agents.  Sec.  214. 
Wlir)('V('i-,  l)('iiig  a  poslinastcr  or  other  pci'son  employed 
ill  Hie  jioslal  service,  slinll  ;icl  as  agent  t'oi"  any  lottery 
ofiice,  or  under  aAov  of  jjiircliase  or  otlierwise,  vend  lot- 
tei*y  tickets,  or  sJiail  iviiowiiigly  send  l)y  iiinil  or  deliver 
any  letter,  package,  postal  card,  ciiciilnr,  or  i)amphlet 
.•i(|\'er1ising     ;iiiy     lotlei\v,     git'i     entci-jji-ise,     or     siniil;n' 


Offenses  Against  the  Postal  Service        1113 

scheme,  offering  prizes  depoiideiit  in  whole  or  in  part 
upon  lot  or  chance,  or  any  ticket,  certificate,  or  instru- 
ment representing  any  chance,  share,  or  interest  in  or 
dependent  upon  the  event  of  any  lottery,  gift  enterprise, 
or  similar  scheme  offering  prizes  dependent  in  whole  or 
in  part  upon  lot  or  chance,  or  any  list  of  the  prizes 
awarded  by  means  of  any  such  scheme,  shall  be  fined  not 
more  than  one  hundred  dollars,  or  imprisoned  not  more 
than  one  year,  or  both. 

§  1488.  Use  of  mails  to  promote  frauds.  Sec.  215. 
Whoever,  having  devised  or  intending  to  devise  any 
scheme  or  artifice  to  defraud,  or  for  obtaining  money  or 
property  by  means  of  false  or  fraudulent  pretenses,  rep- 
resentations, or  promises,  or  to  sell,  dispose  of,  loan,  ex- 
change, alter,  give  away,  distribute,  supply,  or  furnish 
or  procure  for  unlawful  use  any  counterfeit  or  spurious 
coin,  bank  note,  paper  money,  or  any  obligation  or  securi- 
ty of  the  United  States,  or  of  any  state,  territory  munic- 
ipality, company,  corporation,  or  person,  or  anything 
represented  to  be  or  intimated  or  held  out  to  be  such 
counterfeit  or  spurious  article,  or  any  scheme  or  artifice 
to  obtain  money  by  or  through  correspondence,  by  what 
is  commonly  called  the  "saw-dust  swindle,"  or  "coun- 
terfeit-money fraud, ' '  or  by  dealing  or  pretending  to  deal 
in  what  is  commonly  called  "green  articles,"  "green 
coin,"  "green  goods,"  "bills,"  "paper  goods,"  "spuri- 
ous Treasury  notes,"  "United  States  goods,"  "green 
cigars,"  or  any  other  names  or  terms  intended  to  be 
understood  as  relating  to  such  counterfeit  or  spurious 
articles,  shall,  for  the  purpose  of  executing  such  scheme 
or  artifice  or  attempting  so  to  do,  place,  or  cause  to  be 
placed,  any  letter,  postal  card,  package,  writing,  circu- 
lar, pamphlet,  or  advertisement,  whether  addressed  to 
any  person  residing  within  or  outside  the  United  States, 
in  any  postoffice,  or  station  thereof,  or  street  or  other 
letter  box  of  the  United  States,  or  authorized  depository 


1114  Ceiminal  Law 

for  mail  matter,  to  be  sent  or  delivered  by  the  postoffice 
establishment  of  the  United  States,  or  shall  take  or  re- 
ceive any  such  therefrom,  whether  mailed  within  or  with- 
out the  United  States,  or  shall  knowingly  cause  to  be 
delivered  by  mail  according  to  the  direction  thereon,  or 
at  the  place  at  which  it  is  directed  to  be  delivered  by 
the  person  to  whom  it  is  addressed,  any  such  letter,  pos- 
tal card,  package,  writing,  circular,  pamphlet,  or  ad- 
vertisement, shall  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  five  years,  or  both. 

§  1489.  Fraudulently  assuming-  fictitious  address.  Sec. 
216.  Whoever,  for  the  purpose  of  conducting,  promoting, 
or  carrjdng  on,  in  any  manner,  by  means  of  the  postoffice 
establishment  of  the  United  States,  any  scheme  or  device 
mentioned  in  the  section  last  preceding,  or  any  other 
unlawful  business  whatsoever,  shall  use  or  assume,  or 
request  to  be  addressed  by,  any  fictitious,  false,  or  as- 
sumed title,  name,  or  address,  or  name  other  than  his 
own  proper  name,  or  shall  take  or  receive  from  any  post- 
office  of  the  United  States,  or  station  thereof,  or  any 
other  authorized  depositary  of  mail  matter,  any  letter, 
postal  card,  package,  or  other  mail  matter  addressed  to 
any  such  fictitious,  false,  or  assumed  title,  name,  or  ad- 
dress, or  name  other  than  his  own  proper  name,  shall 
be  punished  as  provided  in  tlie  section  last  preceding. 


AMENDING    SECTION    17    OF    CRIMINAL   CODE 

ClIAl'.  190.  AX  ACT  TO  AISIKXD  SECTION  217  OF  THE  ACT  EN- 
TITLED, 'S\X  ACT  TO  COUII  V,  ItKVISK,  AND  AMEND  'VllK  I'ENAL 
LAWS   OF   TIIK    UNITED   STATES,"   AIM'UOVED   MAUCII    4,    1909. 

ij  1490.  Section  217.  Be  it  enacted  by  the  senate  and 
house  of  representatives  of  the  United  States  of  America 
in  congress  assembled,  lliat    sccrKni  217  of  tlic  act  en- 


Offenses  Against  the  Postal  Service        1115 

titled,  ''An  act  to  codify,  revise,  and  amend  the  penal 
laws  of  the  United  States,  "approved  March  4,  1909. 
(Thirty-fifth  Statutes  at  Large,  page  1131),  is  hereby 
amended  to  read  as  follows: 

''Sec.  217.  That  all  kinds  of  poison,  and  all  articles 
and  compositions,  containing  poison,  and  all  poisonous 
animals,  insects,  and  reptiles  and  explosives  of  all  kinds, 
and  inflammable  materials,  and  infernal  machines,  and 
mechanical,  chemical,  or  other  devices  or  compositions 
which  may  ignite  or  explode,  and  all  disease  germs  or 
scabs,  and  all  other  natural,  or  artificial  articles,  com- 
positions, or  materials,  of  whatever  kind,  which  may 
kill  or  in  any^vise  hurt,  harm,  or  injure  another  or  dam- 
age, deface,  or  othenvise  injure  the  mails  or  other  prop- 
erty, whether  sealed  as  first-class  matter  or  not,  are 
hereby  declared  to  be  nonmailable  matter,  and  shall  not 
be  conveyed  in  the  mails  or  delivered  from  any  post- 
office  or  station  thereof,  nor  by  any  letter  carrier;  but 
the  Postmaster  General  may  permit  the  transmission  in 
the  mails,  from  the  manufacturer  thereof  or  dealer  there- 
in, to  licensed  physicians,  surgeons,  dentists,  pharma- 
cists, druggists,  and  veterinarians,  under  such  rules  and 
regulations  as  he  shall  prescribe,  of  any  articles  herein- 
fore  described  which  are  not  outwardly  or  of  their  own 
force  dangerous  or  injurious  to  life,  health,  or  property: 
Provided,  That  all  spirituous,  vinous,  malted,  fermented, 
or  other  intoxicating  liquors  of  any  kind  are  hereby  de- 
clared to  be  nonmailable,  and  shall  not  be  deposited  in 
or  carried  through  the  mails.  Whoever  shall  knowingly 
deposit  or  cause  to  be  deposited  for  mailing  or  deliver^^, 
or  shall  knowingly  cause  to  be  delivered  by  mail,  accord- 
ing to  the  direction  thereon  or  at  any  place  at  which  it 
is  directed  to  be  delivered  by  the  person  to  whom  it  is 
addressed,  anything  declared  by  this  section  to  be  non- 
mailable, unless  in  accordance  with  the  rules  and  regula- 
tions hereby  authorized  to  be  prescribed  by  the  Post- 
master General,  shall  be  fined  not  more  than  $1,000  or 


1116  Criminal  Law 

imprisoned  not  more  than  two  years,  or  both;  and  who- 
ever shall  knowingly  deposit  or  cause  to  be  deposited 
for  mailing  or  delivery,  or  shall  knowingly  cause  to  be 
delivered  by  mail,  according  to  the  direction  thereon  at 
any  place  to  which  it  is  directed  to  be  delivered  by  the 
person  to  whom  it  is  addressed,  anything  declared  by 
this  section  to  be  nonmailable,  whether  transmitted  in 
accordance  with  the  rules  and  regulations  authorized  to 
be  prescribed  by  the  Postmaster  General  or  not,  with 
the  design,  intent,  or  pui*pose  to  kill  or  in  anywise  hurt, 
harm,  or  injure  another,  or  damage,  deface,  or  other- 
wise injure  the  mails  or  other  property,  shall  be  fined 
not  more  than  $10,000  or  imprisoned  not  more  than 
twenty  years,  or  both. ' '  ^ 

§  1491.  Counterfeiting  money  orders.  Sec.  218.  Who- 
ever, with  intent  to  defraud,  shall  falsely  make,  forge, 
counterfeit,  engrave  or  print,  or  cause  or  procure  to  be 
falsely  made,  forged,  counterfeited,  engraved,  or  printed, 
or  shall  willingly  aid  or  assist  in  falsely  making,  forging, 
counterfeiting,  engraving,  or  printing,  any  order  in  imi- 
tation of  or  purporting  to  be  a  money  order  issued  by 
the  Postoffice  Department,  or  by  any  postmaster  or  agent 
thereof;  or  whoever  shall  forge  or  counterfeit  the  sig- 
nature of  any  postmaster,  assistant  postmaster,  chief 
clerk,  or  clerk,  ui)on  or  to  any  money  order,  or  postal 
note,  or  blank  therefor  provided  or  issued  by  or  under 
the  direction  of  the  Postoflice  Department  of  the  United 
States,  or  of  any  foreign  count ly,  aiul  payable  in  the 
United  Stales,  or  any  material  signature  or  indorsement 
tliereon,  or  any  material  signature  to  any  receipt  or  cer- 
tificate of  identification  thereon;  or  shall  falsely  alter, 
or  canse  or  procure  to  Ix'  falsely  altered  in  any  mate- 
rial ix'spect,  or  knowingly  aid  or  assist  in  falsely  so  alter- 
ing any  sucli  money  order  or  postal  note;  or  shall,  witii 

3— Act    May    25,    1920,    41    Stat. 
021. 


Offenses  Against  the  Postal  Service        1117 

intent  to  defraud,  pass,  utter,  or  publish  any  such  forged 
or  altered  money  order  or  postal  note,  knowing  any  ma- 
terial signature  or  indorsement  thereon  to  be  false, 
forged,  or  counterfeited,  or  any  material  alteration 
therein  to  have  been  falsely  made;  or  shall  issue  any 
money  or  postal  note  without  having  previouslj^  received 
or  paid  the  full  amount  of  money  payable  therefor,  with 
the  purpose  of  fraudulently  obtaining  or  receiving,  or 
fraudulently  enabling  any  other  person,  either  directly 
or  indirectly,  to  obtain  or  receive  from  the  United 
States,  or  any  officer,  employee,  or  agent  thereof,  any 
sum  of  money  whatever;  or  shall,  with  intent  to  defraud 
the  United  States,  or  any  person,  transmit  or  present  to, 
or  cause  or  procure  to  be  transmitted  or  presented  to, 
any  officer  or  employee  or  at  any  office  of  the  govern- 
ment of  the  United  States,  any  money  order  or  postal 
note,  knowing  the  same  to  contain  any  forged  or  coun- 
terfeited signature  to  the  same,  or  to  any  material  in- 
dorsement, receipt,  or  certificate  thereon,  or  material 
alteration  therein  unlawfully  made,  or  to  have  been  un- 
law^fully  issued  without  previous  payment  of  the  amount 
required  to  be  paid  upon  such  issue,  shall  be  fined  not 
more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both. 

§  1492.  Counterfeiting  postage  stamps.  Sec.  219.  Who- 
ever shall  forge,  or  counterfeit  any  postage  stamp,  or 
any  stamp  printed  upon  any  stamped  envelope,  or  pos- 
tal card,  or  any  die,  plate,  or  engraving  therefor;  or 
shall  make  or  print,  or  knowingly  use  or  sell,  or  have 
in  possession  with  intent  to  use  or  sell,  any  such  forged 
or  counterfeited  postage  stamp,  stamped  envelope,  pos- 
tal card,  die,  plate,  or  engraving;  or  shall  make,  or 
knowingly  use  or  sell,  or  have  in  possession  with  intent 
to  use  or  sell,  any  paper  bearing  the  watemiark  of  any 
stamped  envelope,  or  postal  card,  or  any  fraudulent  imi- 
tation thereof;  or  shall  make  or  print,  or  authorize  or 


1118  Criminal  Law 

procure  to  be  made  or  printed,  any  postage  stamp, 
stamped  envelope,  or  postal  card,  of  the  kind  authorized 
and  provided  by  the  Postoffice  Department,  without  the 
special  authority  and  direction  of  said  department;  or 
shall,  after  such  postage  stamp,  stamped  envelope,  or 
postal  card  has  been  jDrinted,  with  intent  to  defraud, 
deliver  the  same  to  any  person  not  authorized  by  an 
instrument  in  writing,  duly  executed  under  the  hand  of 
the  Postmaster-General  and  the  seal  of  the  Postoffice 
Department,  to  receive  it,  shall  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  five 
years,  or  both. 

§  1493.  Counterfeiting,  etc.,  foreign  stamps.  Sec.  220. 
AVhoever  shall  forge,  or  counterfeit,  or  knowingl}^  utter 
or  use  any  forged  or  counterfeited  postage  stamp  of  any 
foreign  govenmient,  shall  be  fined  not  more  than  five 
hundred  dollars,  or  imprisoned  not  more  than  five  years, 
or  both. 

§  1494.  Inclosing  higher-class  in  lower-class  matter. 
Sec.  221.  Matter  of  the  second,  third,  or  fourth  class  con- 
taining any  writing  or  printing  in  addition  to  the  orig- 
inal matter,  other  than  as  authorized  by  law,  shall  not 
be  admitted  to  the  mails,  nor  delivered,  except  upon  pay- 
ment of  postage  for  matter  of  the  first  class,  deducting 
tlicrefrom  any  amount  which  may  have  been  ])repaid 
by  stamps  affixed,  unless  by  direction  of  tlie  Postmaster 
General  such  postage  shall  be  i-ciniltcd.  Whoevoi-  shall 
knowingly  conceal  or  inclose  any  injittor  of  a  liigher 
chiss  in  tliat  of  a  lower  class,  and  deposit  or  cause  the 
same  to  )»e  deposited  for  conx  ("ynncc  l)y  mail,  af  a  less 
rate  than  would  ])c  cliargcd  Tor  sucli  higher  chass  mat- 
ter, sliall  l)e  fined  not  more  llian  one  linndrcd  dollars. 

§  1495.  Postmaster  illegally  approving  bond,  etc.  Sec. 
222.   W'hocvci-,    being   a    post mastei',   shall    affix    his   sig- 


Offenses  Against  the  Postal  Service        1119 

nature  to  the  approval  of  any  bond  of  a  bidder,  or  to 
the  certificate  of  sufficiency  of  sureties  in  any  contract, 
before  the  said  bond  or  contract  is  signed  by  the  bidder 
or  contractor  and  his  sureties,  or  shall  knowingly,  or 
without  the  exercise  of  due  diligence,  approve  any  bond 
of  a  bidder  with  insufficient  sureties,  or  shall  knowingly 
make  any  false  or  fraudulent  certificate,  shall  be  forth- 
with dismissed  from  office  and  be  thereafter  disqualified 
from  holding  the  office  of  postmaster;  and  shall  also  be 
fined  not  more  than  five  thousand  dollars,  or  imprisoned 
not  more  than  one  year,  or  both. 

§  1496.  False  evidence  as  to  second-class  mail  matter. 
Sec.  223.  AVhoever  shall  submit  or  cause  to  be  submitted 
to  any  postmaster  or  to  the  Postoffice  Department  or  any 
officer  of  the  postal  service,  any  false  evidence  relative 
to  any  publication  for  the  purpose  of  securing  the  ad- 
mission thereof  at  the  second-class  rate,  for  transporta- 
tion in  the  mails,  shall  be  fined  not  more  than  five  hun- 
dred dollars. 

§  1497.  Inducing  or  prosecuting  false  claims.  Sec.  224. 
Whoever  shall  make,  allege,  or  present,  or  cause  to  be 
made,  alleged,  or  presented,  or  assist,  aid,  or  abet  in 
making,  alleging,  or  presenting,  any  claim  or  applica- 
tion for  indemnity  for  the  loss  of  any  registered  letter, 
parcel,  package,  or  other  article  or  matter,  or  the  con- 
tents thereof,  knowing  such  claim  or  application  to  be 
false,  fictitious,  or  fraudulent;  or  whoever  for  the  pur- 
pose of  obtaining  or  aiding  to  obtain  the  payment  or 
approval  of  any  such  claim  or  application,  shall  make  or 
use,  or  cause  to  be  made  or  used,  any  false  statement, 
certificate,  affidavit,  or  deposition;  or  whoever  shall 
knowingly  and  wilfully  misrepresent,  or  misstate,  or,  for 
the  purpose  aforesaid  shall  knowingly  and  wilfully  con- 
ceal any  material  fact  or  circumstance  in  respect  of  any 
such  claim  or  application  for  indemnity,  shall  be  fined 


1120  Crimixal  Law 

not  more  than  five  hnnclred  dollars,  or  imprisoned  not 
more  than  one  year,  or  both. 

§  1498.   Misappropriation  of  postal  funds  or  property. 

Sec.  225.  Whoever,  being  a  postmaster  or  other  person 
employed  in  or  connected  with  any  branch  of  the  postal 
service,  shall  loan,  use,  pledge,  hypothecate,  or  convert 
to  his  own  use,  or  shall  deposit  in  any  bank,  or  exchange 
for  other  funds  or  property,  except  as  authorized  by  law, 
any  money  or  property  coming  into  his  hands  or  under 
his  control  in  any  manner  whatever,  in  the  execution  or 
under  color  of  his  office,  employment,  or  seiwice,  whether 
the  same  shall  be  the  money  or  property  of  the  United 
States  or  not;  or  shall  fail  or  refuse  to  remit  to  or  deposit 
in  the  Treasury  of  the  United  States  or  in  a  designated 
depository,  or  to  account  for  or  turn  over  to  the  proper 
officer  or  agent,  any  such  money  or  property,  when  re- 
quired so  to  do  by  law  or  the  regulations  of  the  Post- 
office  Department,  or  upon  demand  or  order  of  tlie  Post- 
master General,  either  directly  or  through  a  duly  au- 
thorized officer  or  agent,  shall  be  deemed  guilty  of 
embezzlement;  and  eveiy  such  person,  as  well  as  every 
other  person  advising  or  knowingly  participating  there- 
in, shall  be  fined  in  a  sum  equal  to  the  amount  or  value 
of  the  money  or  property  embezzled  or  imprisoned  not 
more  than  ten  years,  or  both.  Any  failure  to  produce  or 
to  pay  over  any  such  money  or  property,  when  required 
so  to  do  as  above  provided,  shall  be  taken  to  be  ]n-ima 
facie  evidence  of  such  embezzlement;  and  upon  the  I  rial 
of  any  indictment  against  any  person  for  such  embezzle- 
ment, it  shall  l)e  prima  facie  evidence  of  a  balance 
against  him  to  produce  a  transcript  from  the  account 
books  of  the  Audiloi-  for  the  Postoffice  Department.  P>nt 
nothing  herein  sliail  be  construed  to  i)rohil)it  any  post- 
master depositing,  under  the  direction  of  the  i^ostmaster 
(Jciicral,  in  a  national  hank  designated  by  the  Secretary 
of  the  Ti-e.'isnry   \'i<v  that    pnrj)ose,  to  his  own   credit  as 


Offenses  Against  the  Postal  Service        1121 

postmaster,  any  funds  in  liis  charge,  nor  prevent  his  ne- 
gotiating drafts  or  other  evidences  of  debt  through  such 
bank,  or  through  United  States  disbursing  officers,  or 
otherwise,  when  instructed  or  required  so  to  do  by  the 
Postmaster  General,  for  the  purpose  of  remitting  surplus 
funds  from  one  postoffice  to  another. 

§  1499.  Employees  not  to  become  interested  in  con- 
tracts. Sec.  226.  Whoever,  being  a  person  employed 
in  the  postal  service,  shall  become  interested  in  any  con- 
tract for  carrying  the  mail,  or  act  as  agent,  with  or  with- 
out compensation,  for  any  contractor  or  person  offering 
to  become  a  contractor  in  any  business  before  the  Depart- 
ment, shall  be  immediately  dismissed  from  office,  and  shall 
be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  one  year,  or  both. 

§  1500.  Fraudulent  use  of  official  envelopes.  Sec.  227. 
Whoever  shall  make  use  of  any  official  envelope,  label,  or 
indorsement  authorized  by  law,  to  avoid  the  payment  of 
postage  or  registry  fee  on  his  private  letter,  packet, 
package,  or  other  matter  in  the  mail,  shall  be  fined  not 
more  than  three  hundred  dollars. 

§1501.  Fraudulent  increase  of  weight  of  mail.    Sec. 

228.  Whoever  shall  place  or  cause  to  be  placed  any  mat- 
ter in  the  mails  during  the  regular  weighing  period,  for 
the  purpose  of  increasing  the  weight  of  the  mail  with  in- 
tent to  cause  an  increase  in  the  compensation  of  the  rail- 
road mail  carrier  over  whose  route  such  mail  may  pass, 
shall  be  fined  not  more  than  twenty  thousand  dollars,  or 
imprisoned  not  more  than  five  years,  or  both. 

§  1502.  Offenses  against  foreign  mail  in  transit.    Sec. 

229.  Every  foreign  mail  shall,  Avhile  being  transported 
across  the  territory  of  the  United  States,  under  authority 
of  law,  be  taken  and  deemed  to  be  a  mail  of  the  United 

C.  L.— 71 


1122  Criminal  Law 

States  so  far  as  to  make  any  violation  thereof,  or  depre- 
dation thereon,  or  offense  in  respect  thereto,  or  any  part 
thereof,  an  offense  of  the  same  grade,  and  punishable  in 
the  same  manner  and  to  the  same  extent  as  thongii  the 
mail  was  a  mail  of  the  United  States;  and  in  any  indict- 
ment or  information  for  any  such  offense,  the  mail,  or 
any  part  thereof,  may  be  alleged  to  be,*  and  on  the  trial 
of  any  such  indictment  or  information  it  shall  be  deemed 
and  held  to  be,  a  mail  or  part  of  a  mail  of  the  United 
States. 

§  1503.  Omission  to  take  oath.  Sec.  230.  Every  per- 
son employed  in  the  postal  service  shall  be  subject  to  all 
penalties  and  forfeitures  for  the  violation  of  the  laws 
relating  to  such  service,  whether  he  has  taken  the  oath 
of  office  or  not. 

§1504.  Definitions.  Sec.  231.  The  words  ''postal 
service, ' '  wherever  used  in  this  chapter,  shall  be  held  and 
deemed  to  include  the  "Postoffice  Department." 


CHAPTER  LXXVI 

PUBLIC  JUSTICE 

OFFENSES  AGAINST  PUBLIC  JUSTICE 

CHAPTER  SIX 


Penal  Code  Act,  March  4,  1909 


§  1507.  Perjury.  §  1518. 

§  1508.  Suboruation   of    perjury. 

§  1509.  Stealing  or  altering  process;       §  1519. 
procuring   false   bail,   etc.       §  1520. 

§  1510.  Destroying,  etc.,  public  rec- 
ords. §  1521. 

§  1511.  Destroying  records  by  officer 

in  charge.  §  1522. 

§  1512.  Forging  signature  of  judge, 

etc.  §  1523. 

§  1513.  Bribery  of  a  judge  or  ju- 
dicial   officer. 

§  1514.  Judge  or  judicial  officer  ac-       §  1524. 
cepting  a  bribe,  etc.  §  1525. 

§  1515.  Juror,  referee,  master,  etc.,       §  1526. 
or     judicial     officer,     etc., 
accepting  bribe.  §  1527. 

§  1516.  Witness  accepting  bribe.  §  1528, 

§  1517.  Intimidation  or  corruption 
of  witness,  or  grand  or 
petit  juror,   or   officer. 


§  1507.  Perjury.  Sec.  125.  Whoever,  having  taken  an 
oath  before  a  competent  tribunal,  officer,  or  person,  in 
any  case  in  which  a  law  of  the  United  States  authorizes 
an  oath  to  be  administered,  that  he  will  testify,  declare, 
depose,  or  certify  truly,  or  that  any  written  testimony, 
declaration,  deposition,  or  certificate  by  him  subscribed, 
is  true,  shall  wilfully  and  contrary  to  such  oath  state  or 

1123 


Conspiring  to  intimidate 
party,  witness  or  juror. 

Attempt  to   influence   juror. 

Allowing  prisoner  to  es- 
cape. 

Application  of  preceding 
section. 

Obstructing  process  or  as- 
saulting an  officer. 

Rescuing,  etc.,  prisoner; 
concealing,  etc.,  person  for 
whom  warrant  has  issued. 

Rescue   at   execution. 

Rescue  of  prisoner. 

Rescue  of  body  of  executed 
offender. 

Extortion  by  informer. 

Misprision  of   felony. 


1124  Criminal  Law 

subscribe  any  material  matter  which  he  does  not  believe 
to  be  tnie,  is  guilty  of  perjuiy,  and  shall  be  fined  not  more 
than  two  thousand  dollars  and  imprisoned  not  more  than 
five  years. 

§  1508.  Subornation  of  perjury.  Sec.  126.  AVhoever 
shall  procure  another  to  commit  any  perjury  is  guilty  of 
subornation  of  perjury,  and  punishable  as  in  the  pre- 
ceding section  prescribed. 

§  1509.  Stealing-  or  altering  process;  procuring  false 
bail,  etc.  Sec.  127.  Whoever  shall  feloniously  steal, 
take  away,  alter,  falsif j",  or  otherwise  avoid  any  record, 
writ,  process,  or  other  proceeding,  in  any  court  of  the 
United  States,  by  means  whereof  any  judgment  is  re- 
versed, made  void,  or  does  not  take  eifect;  or  whoever 
shall  acknowledge,  or  procure  to  be  acknowledged,  in  any 
such  court,  any  recognizance,  bail  or  judgment,  in  the 
name  of  any  other  person  not  privy  or  consenting  to  the 
same,  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  seven  years,  or  both;  but 
this  provision  shall  not  extend  to  the  acknowledgment  of 
any  judgment  by  an  attorney,  duly  admitted,  for  any 
person  against  Avhom  such  judgment  is  had  or  given. 

§  1510.  Destroying,  etc.,  public  records.  Sec.  128. 
Whoever  sliall  wilfully  and  unlawfully  conceal,  remove, 
mutilate,  obliterate,  or  destroy,  or  attempt  to  conceal, 
remove,  mutilate,  obliterate,  or  destroy,  or,  with  intent 
to  conceal,  remove,  mutilate,  obliterate,  destro}^  or  steal, 
shall  take  and  carry  away  any  record,  proceeding,  map, 
book,  paper,  document,  or  other  thing,  filed  or  dejiosited 
with  any  clerk  or  officer  of  any  court  of  the  United  States, 
or  in  any  public  office,  or  with  any  judicial  or  public 
officer  of  the  United  States,  shall  be  fined  not  more  than 
two  thousand  dollars,  or  imprisoned  not  more  than  three 
years,  or  both. 


Public  Justice  1125 

§  1511.  Destroying  records  by  officer  in  charge.  Sec. 
129.  Whoever,  having  the  custody  of  any  record,  pro- 
ceeding, map,  book,  document,  paper,  or  other  thing  spec- 
ified in  the  preceding  section,  shall  wilfully  and  unlaw- 
fully conceal,  remove,  mutilate,  obliterate,  falsify,  or 
destroy  any  such  record,  proceeding,  map,  book,  docu- 
ment, paper,  or  thing,  shall  be  fined  not  more  than  two 
thousand  dollars,  or  imprisoned  not  more  than  three 
years,  or  both;  and  shall  moreover  forfeit  his  office  and 
be  forever  afterward  disqualified  from  holding  any  office 
under  the  Government  of  the  United  States. 

§  1512.  Forging  signature  of  judge,  etc.  Sec.  130. 
Whoever  shall  forge  the  signature  of  any  judge,  register, 
or  other  officer  of  any  court  of  the  United  States,  or  of 
any  territory  thereof,  or  shall  forge  or  counterfeit  the  seal 
of  any  such  court,  or  shall  knowingly  concur  in  using 
any  such  forged  or  counterfeit  signature  or  seal,  for  the 
purpose  of  authenticating  any  proceeding  or  document, 
or  shall  tender  in  evidence  any  such  proceeding  or  docu- 
ment with  a  false  or  counterfeit  signature  of  any  such 
judge,  register,  or  other  officer,  or  a  false  or  counterfeit 
seal  of  the  court,  subscribed  or  attached  thereto,  know- 
ing such  signature  or  seal  to  be  false  or  counterfeit,  shall 
be  fined  not  more  than  five  thousand  dollars  and  impris- 
oned not  more  than  five  years. 

§  1513.  Bribery  of  a  judge  or  judicial  officer.  Sec.  131. 
Whoever,  directly  or  indirectly,  shall  give  or  offer,  or 
cause  to  be  given  or  offered,  any  money,  property  or 
value  of  any  kind,  or  any  promise  or  agreement  there- 
for, or  any  other  bribe,  to  any  judge,  judicial  officer,  or 
other  person  authorized  by  any  law  of  the  United  States 
to  hear  or  determine  any  question,  matter,  cause,  pro- 
ceeding or  controversy,  with  intent  to  influence  his  ac- 
tion, vote,  opinion,  or  decision  thereon,  or  because  of  any 
action,  vote,  opinion,  or  decision,  shall  be  fined  not  more 


1126  Criminal  Law 

than  twenty  thousand  dollars,  or  imprisoned  not  more 
than  fifteen  years,  or  both;  and  shall  forever  be  disquali- 
fied to  hold  any  office  of  honor,  trust,  or  profit  under  the 
United  States. 

§  1514.  Judge  or  judicial  officer  accepting  a  bribe,  etc. 
Sec.  132.  Whoever,  being  a  judge  of  the  United  States, 
shall  in  any  wise  accept  or  receive  anj^  sum  of  money, 
or  other  bribe,  present,  or  reward,  or  any  promise,  con- 
tract, obligation,  gift,  or  security  for  tlie  payment  of 
money,  or  for  the  deliveiy  or  conveyance  of  anything  of 
value,  with  the  intent  to  be  influenced  thereby  in  any 
opinion,  judgment,  or  decree  in  any  suit,  controversy, 
matter,  or  cause,  depending  before  him,  or  because  of  any 
such  opinion,  ruling,  decision,  judgment  or  decree  shall 
be  fined  not  more  than  twenty  thousand  dollars,  or  im- 
prisoned not  more  than  fifteen  years,  or  both;  and  shall 
be  forever  disqualified  to  hold  any  office  of  honor,  trust, 
or  profit  under  the  United  States. 

§  1515.  Juror,  referee,  master,  etc.,  or  judicial  officer, 
etc.,  accepting  bribe.  Sec.  183.  Whoever,  being  a  juror, 
referee,  arbitrator,  appraiser,  assessor,  auditor,  master, 
receiver.  United  States  commissioner,  or  other  person 
authorized  by  any  law  of  the  United  States  to  hear  or 
determine  any  (luestion,  mailer,  cansc,  conlrovei'sy,  or 
proceeding,  shall  ask,  receive  or  agree  to  receive,  any 
money,  property,  or  value  of  any  kind,  or  any  promise 
or  agreement  therefoi',  upon  any  agreenienl  or  under- 
standing that  his  vote,  oi)ini<)ii,  aelion,  jud^menl,  or  de- 
cision, shall  be  influenced  1  hereby,  or  l)ecause  of  any  such 
vote,  opinion,  aelion,  jud^nienl,  or  decision,  shall  be 
lined  not  more  llian  two  lh(»usini<l  (l<ill;ii's,  oi'  inijU'isoned 
not  nioi-e  Ihan  1  wo  years,  (tr  l)olh. 

§1516.  Witness  accepting  bribe.    Sec.   134.  Whoever, 

bein^,  or  ahoiil   1(»  he,  ;i  wilness  upon  a  Irial,  hearing',  or 


Puiihic  Justice  1127 

other  proceeding,  before  any  court  or  any  officer  author- 
ized by  the  laws  of  the  United  States  to  hear  evidence  or 
take  testimony,  shall  receive,  or  agree  or  offer  to  re- 
ceive, a  bribe,  upon  any  agreement  or  understanding 
that  his  testimony  shall  be  influenced  thereby,  or  that  he 
will  absent  himself  from  the  trial,  hearing,  or  other  pro- 
ceeding, or  because  of  such  testimony,  or  such  absence, 
shall  be  fined  not  more  than  two  thousand  dollars,  or 
imprisoned  more  than  two  years,  or  both. 

§  1517.  Intimidation  or  corruption  of  witness,  or  grand 
or  petit  juror,  or  officer.  Sec.  135.  Whoever  corruptly,  or 
by  threats  or  force,  or  by  any  threatening  letter  or  com- 
munication, shall  endeavor  to  influence,  intimidate,  or 
impede  any  witness,  in  any  court  of  the  United  States 
or  before  any  United  States  commissioner  or  officer  act- 
ing as  such  commissioner,  or  any  grand  or  petit  juror, 
or  officer  in  or  of  any  court  of  the  United  States,  or  offi- 
cer who  may  be  serving  at  any  examination  or  other  pro- 
ceeding before  any  United  States  commissioner  or  officer 
acting  as  such  commissioner,  in  the  discharge  of  his 
duty,  or  who  corruptly  or  by  threats  or  force,  or  by  any 
threatening  letter  or  threatening  communication,  shall 
influence,  obstruct,  or  impede,  or  endeavor  to  influence, 
obstruct,  or  impede,  the  due  administration  of  justice 
therein,  shall  be  fined  not  more  than  one  thousand  dol- 
lars, or  imprisoned  not  more  than  one  year,  or  both. 

§  1518.  Conspiring  to  intimidate  party,  witness,  or 
juror.  Sec.  136.  If  two  or  more  persons  conspire  to  de- 
ter by  force,  intimidation,  or  threat,  any  party  or  wit- 
ness in  any  court  of  the  United  States,  or  in  any  exam- 
ination, before  a  United  States  commissioner  or  officer 
acting  as  such  commissioner,  from  attending  such  court 
or  examination,  or  from  testifying  to  any  matter  pend- 
ing therein,  freely,  fully,  and  truthfully,  or  to  injure 
such  party  or  witness  in  his  person  or  property   on  ac- 


1128  Criminal  Law 

count  of  his  having  so  attended  or  testified,  or  to  influ- 
ence the  verdict,  presentment,  or  indictment  of  any  grand 
or  petit  juror  in  any  such  court,  or  to  injure  such  juror 
in  his  person  or  property  on  account  of  any  verdict, 
presentment,  or  indictment  lawfully  assented  to  by  him, 
or  on  account  of  his  being  or  having  been  such  juror, 
each  of  such  persons  shall  be  fined  not  more  than  five 
thousand  dollars,  or  imprisoned  not  more  than  six  years, 
or  both. 

§  1519.  Attempt  to  influence  juror.  Sec.  137.  Whoever 
shall  attempt  to  influence  the  action  or  decision  of  any 
grand  or  petit  juror  of  any  court  of  the  United  States 
ujDon  any  issue  or  matter  pending  before  such  juror,  or 
before  the  jury  of  which  he  is  a  member,  or  pertaining  to 
his  duties,  by  writing  or  sending  to  him  any  letter  or 
communication,  in  print  or  writing,  in  relation  to  such 
issue  or  matter,  shall  be  fined  not  more  than  one  thou- 
sand dollars,  or  imprisoned  not  more  than  six  months, 
or  both. 

§  1520.  Allowing  prisoner  to  escape.  Sec.  138.  When- 
ever any  marshal,  deputy  marshal,  ministerial  officer,  or 
other  person  has  in  his  custody  any  prisoner  by  virtue 
of  process  issued  under  the  laws  of  the  United  States 
by  any  court,  judge,  or  commissioner,  and  such  marshal, 
deputy  marshal,  ministerial  officer,  or  other  person  vol- 
untarily sLilTers  such  !)ris()ner  to  escape,  he  shall  be  lined 
n(jt  more- than  hvo  llionsand  dollars,  or  imprisoned  iiot 
ni()i-('  than  two  yeai's  or  both. 

§1521.  Application  of  preceding  section.  Sec.  139.  The 
preceding  section  shall  be  consli'ucd  to  ajjply  not  only 
to  cases  in  which  tlic  pi'isoner  who  escaped  was  charged 
or  found  guilty  of  an  olTense  against  the  laws  of  the 
United  States,  and  1o  cases  in  which  the  prisoner  may  be 
in   custody   charged   witli    offenses   against   any   foreign 


Public  Justice  1129 

government  with  which  the  United  States  have  treaties 
of  extradition,  but  also  to  cases  in  which  the  prisoner 
may  be  held  in  custody  for  removal  to  or  from  the  Philip- 
pine Islands  as  provided  by  law. 

§  1522.  Obstructing-  process  or  assaulting  officer.  Sec. 
140.  Wlioever  shall  knowingly  and  wilfully  obstruct, 
resist,  or  oppose  any  officer  of  the  United  States,  or  other 
person  duly  authorized,  in  serving,  or  attempting  to  serve 
or  execute,  any  mesne  process  or  warrant,  or  any  rule  or 
order,  or  any  other  legal  or  judicial  writ  or  process  of 
any  court  of  the  United  States,  or  United  States  commis- 
sioner, or  shall  assault,  beat,  or  wound  any  officer,  or 
other  person  duly  authorized,  knowing  him  to  be  such 
officer,  or  other  person  so  duly  authorized,  in  serving  or 
executing  any  such  writ,  rule,  order,  process,  warrant, 
or  other  legal  or  judicial  writ  or  process,  shall  be  fined 
not  more  than  three  hundred  dollars  and  imprisoned  not 
more  than  one  year. 

§  1523.  Rescuing,  etc.,  prisoner;  concealing,  etc.,  per- 
son for  whom  warrant  was  issued.  Sec.  141.  Whoever 
shall  rescue  or  attempt  to  rescue,  from  the  custody  of  any 
officer  or  person  lawfully  assisting  him,  any  person  ar- 
rested upon  a  warrant  or  other  process  issued  under  the 
provisions  of  any  law  of  the  United  States,  or  shall,  di- 
rectly or  indirectly,  aid,  abet,  or  assist  any  person  so 
arrested  to  escape  from  the  custody  of  such  officer  or 
other  person,  or  shall  harbor  or  conceal  any  person  for 
whose  arrest  a  warrant  or  process  has  been  so  issued,  so 
as  to  prevent  his  discovery  and  arrest,  after  notice  or 
knowledge  of  the  fact  that  a  warrant  or  process  has  been 
issued  for  the  apprehension  of  such  person,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  six  months,  or  both. 

§  1524.  Rescue  at  execution.  Sec.  142.  Whoever,  by 
force,  shall  set  at  liberty  or  rescue  any  person  found 


1130  Criminal  Law 

guilty  in  any  court  of  the  United  States  of  any  capital 
crime,  while  going  to  execution  or  during  execution,  shall 
be  fined  not  more  than  twentj^-five  thousand  dollars  and 
imprisoned  not  more  than  twenty-five  years. 

§  1525.  Rescue  of  prisoner.  Sec.  143.  Whoever,  by 
force,  shall  set  at  liberty  or  rescue  any  person,  who,  before 
conviction,  stands  committed  for  any  capital  crime;  or 
whoever,  by  force,  shall  set  at  liberty,  or  rescue  any  per- 
son, committed  for  or  convicted  of  any  offense  other  than 
capital,  shall  be  fined  not  more  than  five  hundred  dollars 
and  imprisoned  not  more  than  one  year. 

§  1526.  Rescue  of  body  of  executed  offender.  Sec.  144. 
Whoever,  by  force,  shall  rescue  or  attempt  to  rescue, 
from  the  custody  of  any  marshal  or  his  officers,  the  dead 
body  of  an  executed  offender,  while  it  is  being  conveyed 
to  a  place  of  dissection,  as  provided  by  section  331  hereof, 
or  by  force  shall  rescue  or  attempt  to  rescue  such  body 
from  the  place  Avhere  it  has  been  deposited  for  dissection 
in  pursuance  of  that  section,  shall  be  fined  not  more  than 
one  hundred  dollars,  or  imprisoned  not  more  than  one 
year  or  both. 

§  1527.  Extortion  by  internal  revenue  informers.  Sec. 
145.  Whoever  shall,  under  a  threat  of  infonning,  or  as 
a  consideration  for  not  infomiing,  against  any  violation 
of  any  law  of  the  United  Slates,  demand  or  receive  any 
money  or  other  valuable  thing,  shall  l>e  rnied  not  more 
than  two  thousand  dollars,  or  imprisoned  i'or  not  more 
than  one  year,  or  both. 

§1528.  Misprision  of  felony.  Sec  UG.  Whoever,  hav- 
ing knowledge  of  the  actual  commission  of  the  crime  of 
mnrder  or  other  felony  cognizable  by  the  courts  of  the 
United  States,  conceals  and  does  not  as  soon  as  may  be 


Public  Justice  1131 

disclosed  and  made  known  the  same  to  some  one  of  the 
judges  or  other  persons  in  civil  or  military  authority 
under  the  United  States,  shall  be  fined  not  more  than 
five  hundred  dollars,  or  imprisoned  not  more  than  three 
years,  or  both. 


CHAPTER  LXXVII 


OFFENSES  RELATING  TO  PUBLIC  LANDS 


§  1531.  Cutting  or  wantonly  de- 
stroying red  cedar  or 
hemlock  on  public  lands; 
punishment. 

§  1532.  Falsely  making  or  altering 
instrument  affecting  lands 
and  minerals  in  Califor- 
nia, punished  by  hard 
labor. 

§  1533.  Violation  of  Act  June  3, 
1878,  relating  to  cutting 
timber  on  mineral  lands, 
misdemeanor. 

§  1534.  No  person  by  force  or 
threats,  or  by  conspiring 
with  others  prevent  others 
from  settlement  on  public 
land. 

§  1535.  Penalty  for  preventing  set- 
tlement upon  public  land. 

§  153G.  Unlawful  to  procure  any 
person  to  settle  upon  land 
in  Oklahoma  with  intent 
to  acquire  title. 

§  1537.  Offenses  against  military 
and  national  pnrks;  pun- 
ishment. 

S  1538.  Defense   for  cutting  timber. 

8  15.T0.  Register  and  receiver  is  cm- 


powered  to  subpoena  wit- 
ness. 

§  1540.  "Witness  after  demand  and 
payment  of  witness  fee 
failure  to  testify  misde- 
meanor. 

§  1541.  Homestead  entrymen  and 
witness  making  false  affi- 
davit and  others  as  to  any 
material  matter,  guilty  of 
perjury. 

§  1542.  Punishment  for  destruction 
of  historic  or  prehistoric 
ruins  on  Government  land. 

§  1543.  Punishment  for  preventing 
others  from  settling  on 
public  lands  under  Act 
Feb.  25,  1885,  23  Stat. 
322. 

§  1544.  Unlawful  to  trap,  kill  or 
capture  animals  in  Grand 
Canyon  Forest  Reserve  ex- 
cept as  l)y  regulations. 

§  1545.  Punishment  for  hunting, 
catching,  wilfully  destroy- 
ing or  killing  birds  and 
animals  in  limits  as  pro- 
vided under  Act  August 
11.   1916. 


§  1531.  Cutting^  or  wantonly  destroying  red  cedar  or 
hemlock  on  public  lands — Punishment.  If  nny  ])ors()ii 
shall  ('111,  or  cause  or  ])i-()cnro  lo  Ix'  cul,  or  aid,  assist,  or 
be  employed  in  cutting  or  shall  wantonly  destroy,  or 
cause  or  procure  to  bo  wantonly  destroyed,  or  aid,  assist, 
or  bo  employed  in  wantonly  destroying  any  live-oak  or 

1132 


Offenses  Relating  to  Public  Lands  1133 

red-cedar  trees,  or  other  timber  standing,  growing,  or 
being  on  any  lands  of  the  United  States,  which,  in  pur- 
suance of  any  law  passed,  or  hereafter  to  be  passed,  have 
been  reserved,  or  purchased  for  the  use  of  the  United 
States,  for  supplying  or  furnishing  therefrom  timber  for 
the  navy  of  the  United  States ;  or  if  any  person  shall  re- 
move, or  cause  or  procure  to  be  removed,  or  aid  or  assist, 
or  be  employed  in  removing  from  any  such  lands  which 
have  been  reserved  or  purchased,  any  live-oak  or  red- 
cedar  trees,  or  other  timber,  unless  duly  authorized  so  to 
do,  by  order,  in  writing,  of  a  competent  officer,  and  for 
the  use  of  the  navy  of  the  United  States;  or  if  any  person 
shall  cut,  or  cause  or  procure  to  be  cut,  or  aid,  or  assist, 
or  be  employed  in  cutting  anj^  live-oak  or  red-cedar  trees 
or  other  timber  on,  or  shall  remove,  or  cause  or  procure 
to  be  removed,  or  aid,  or  assist,  or  be  employed  in  re- 
moving any  live-oak  or  red-cedar  trees  or  other  tim- 
ber, from  any  other  lands  of  the  United  States, 
acquired,  or  hereafter  to  be  acquired,  with  intent  to 
export,  dispose  of,  use,  or  employ  the  same  in  any  man- 
ner whatsoever,  other  than  for  the  use  of  the  Navy  of 
the  United  States ;  every  such  person  shall  pay  a  fine  not 
less  than  triple  the  value  of  the  trees  or  timber  so  cut, 
destroyed,  or  removed,  and  shall  be  imprisoned  not  ex- 
ceeding twelve  months.^ 

§  1532.  Falsely  making  or  altering  instrument  aifect- 
ing  lands  and  minerals  in  California— Punished  by  hard 
labor.  Every  person  who  falsely  makes,  alters,  forges, 
or  counterfeits,  or  causes  or  procures  to  be  falsely  made, 
altered,  forged,  or  counterfeited;  or  willingly  aids  and 
assists  in  the  false  making,  altering,  forging,  or  counter- 
feiting any  petition,  certificate,  order,  report,  decree,  con- 
cession, denouncement,  deed,  patent,  confinnation,  diseno, 
map,  expediente  or  part  of  an  expediente,  or  any  title- 

1— Act  Mar.  2,  1831,  E.  S.  2461, 
4  Stat.  472. 


1134  Criminal  Law 

paper,  or  evidence  of  right,  title,  or  claim  to  lands,  mines, 
or  minerals  in  California,  or  any  instrument  of  writing 
whatever  in  relation  to  lands  or  mines  or  minerals  in 
the  State  of  California,  for  the  purpose  of  setting  up  or 
establishing  against  the  United  States  any  claim,  right, 
or  title  to  lands,  mines,  or  minerals  within  the  State  of 
California,  or  for  the  purposes  of  enabling  any  person  to 
set  up  or  establish  any  such  claim;  and  every  person, 
who,  for  such  puipose,  utters  or  publishes  as  tnie  and 
genuine  any  such  false,  forged,  altered,  or  counterfeited 
petition,  certificate,  order,  report,  decree,  concession, 
denouncement,  deed,  patent,  confirmation,  diseno,  map, 
expediente  or  part  of  an  expediente,  title-paper,  evidence 
of  right,  title,  or  claim  to  lands  or  mines  or  minerals  in 
the  State  of  California,  or  any  instrument  of  writing 
whatever  in  relation  to  lands  or  mines  or  minerals  in  the 
State  of  California,  shall  be  punishable  by  imprisonment 
at  hard  labor  not  less  than  three  years  and  not  more 
than  ten  years,  and  by  a  fine  of  not  more  than  ten  thou- 
sand dollars.** 

§  1533.  Violation  of  Act  June  3,  1878,  relating  to  cut- 
ting timber  on  mineral  lands — Misdemeanor.  1.  That  all 
citi/A'iis  of  the  United  States  and  other  persons,  bona  fide 
residents  of  the  State  of  Colorado,  or  Nevada,  or  either 
of  the  Territories  of  New  ]\Iexico,  Arizona,  Utah,  Wyo- 
ming, Dakota,  Idaho,  or  Montana,  and  all  other  mineral 
districts  of  the  United  States,  sliall  be,  and  are  liereby, 
authorized  and  permitted  to  fell  and  remove,  for  build- 
ing, agricultural,  mining,  or  other  domestic  purposes, 
any  timber  or  otlier  trees  growing  or  being  on  the  public 
lands,  said  lands  being  mineral,  and  not  sul)ject  to  entry 
under  existing  laws  of  the  United  States,  Territories,  or 
districts  of  which  such  citizens  or  persons  may  be  at 
any  time  bona  fide  residents,  subject  to  such  rules  and 

2_Hoc».    1,   2   and    :?,    H.    S.    2471, 
Art    .M:iy    IS,  1858,   H    Htat.   2»0. 


Offenses  RELAnNG  to  Public  Lands  1135 

regulations  as  the  Secretaiy  of  the  Interior  may  pre- 
scribe for  the  protection  of  the  timber  and  of  the  under- 
growth growing  upon  such  lands,  and  for  other  purposes : 
Provided,  the  provisions  of  this  Act  shall  not  extend  to 
railroad  corporations. 

2.  That  it  shall  be  the  duty  of  the  register  and  the  re- 
ceiver of  any  local  land  office  in  whose  district  any  mineral 
land  may  be  situated  to  ascertain  from  time  to  time 
whether  any  timber  is  being  cut  or  used  upon  any  such 
lands,  except  for  the  purposes  authorized  by  this  Act, 
within  their  respective  land  districts;  and,  if  so,  they 
shall  immediately  notify  the  Commissioner  of  the  General 
Land  Office  of  that  fact;  and  all  necessary  expenses  in- 
curred in  making  such  proper  examination  shall  be  paid 
and  allowed  such  register  and  receiver  in  making  up  their 
next  quarterly  accounts. 

3.  Any  person  or  persons  who  shall  violate  the  pro- 
visions of  this  Act,  or  any  rules  and  regulations  in  pur- 
suance thereof  made  by  the  Secretary  of  the  Interior, 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  con- 
viction, shall  be  fined  in  any  sum  not  exceeding  five  hun- 
dred dollars,  and  to  which  may  be  added  imprisonment 
for  any  term  not  exceeding  six  months.^ 

~§  1534.  No  person  by  force  or  threats,  or  by  conspiring 
with  others  prevent  others  from  settlement  on  public 
land.  That  no  person,  by  force,  threats,  intimidation,  or 
by  any  fencing  or  inclosing,  or  any  other  unlawful  means, 
shall  prevent  or  obstruct,  or  shall  combine  and  con- 
federate with  others  to  prevent  or  obstruct,  any  person 
from  peaceably  entering  upon  or  establishing  a  settle- 
ment or  residence  on  any  tract  of  public  land  subject  to 
settlement  or  entry  under  the  public  laws  of  the  United 
States,  or  shall  prevent  or  obstruct  free  passage  or 
transit  over  or  through  the  public  lands :  Provided,  This 
section  shall  not  be  held  to  affect  the  right  or  title  of 

3— Act  June  3,  1878,  20  Stat.  88. 


1136  Ceimixal  Law 

persons,  who  have  gone  upon,  improved  or  occupied  said 
lands  under  the  land  laws  of  the  United  States,  claiming 
title  thereto,  in  good  faith.* 

§  1535.  Penalty  for  preventing"  settlement  upon  public 
land.  That  any  person  violating  any  provisions  hereof, 
whether  as  owner,  part  owner,  agent,  or  who  shall  aid, 
help,  counsel,  advise  or  assist  in  any  violation  hereof, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  fined  in  a 
sum  not  exceeding  one  thousand  dollars  and  be  impris- 
oned not  exceeding  one  year  for  each  offense.^ 

§  1536.  Unlawful  to  procure  any  person  to  settle  upon 
land  in  Oklahoma  with  intent  to  acquire  title.  That  it 
shall  be  unlawful  for  any  person,  for  himself  or  any 
company,  association,  or  corporation,  to  directly  or  in- 
directly procure  any  person  to  settle  upon  any  lands 
open  to  settlement  in  the  Territory  of  Oklahoma,  with 
intent  thereafter  of  acquiring  title  thereto;  and  any  title 
thus  acquired  shall  be  void;  and  the  parties  to  such 
fraudulent  settlement  shall  severally  be  guilty  of  a  mis- 
demeanor, and  shall  be  punished  upon  indictment,  by 
imprisonment  not  exceeding  twelve  months,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  by  both  such  fine 
and  imprisonment,  in  the  discretion  of  the  court.^ 

§  1537.  Offenses  against  military  and  national  parks. 
Punishment.  1'liat  evci-y  i)ers()n  who  wilfully  destroys, 
luutilales,  defaces,  injures,  or  removes  any  monument, 
statue,  marker,  guidepost,  or  other  structure,  or  who  will- 
fully destroys,  cuts,  breaks,  injures,  or  removes  any  tree, 
shrub,  or  plant  within  the  limits  of  any  national  parks 
shall  1m'  deemed  guilty  of  a  misdcincanor,  ))unislial)le  by 

4— Sec.  3,  Act  Feb.  25,  1885,  23  G— Hoc.  21,  Act  May  2,  1890,  26 

Htat.  322.  Stat.  92. 

5— Sec.  4,  Act  FuIj.   25,   1885,   23 
8Ut.   322. 


Offenses  Relating  to  Public  Lands  1137 

a  fine  of  not  less  than  ten  dollars  nor  more  than  one  thou- 
sand dollars,  for  each  monument,  statue,  marker,  guide- 
post,  or  other  structure,  tree,  shrub,  or  plant  destroyed, 
defaced,  injured,  cut,  or  removed,  or  by  imprisoimient  for 
not  less  than  fifteen  days  and  not  more  than  one  year,  or 
by  both  fine  and  imprisonment. 

Every  person  who  shall  trespass  upon  any  national 
parks  for  the  purpose  of  hunting  or  shooting,  or  who 
shall  hunt  any  kind  of  game  thereon  with  gun  or  dog,  or 
shall  set  trap  or  net  or  other  device  whatsoever  thereon 
for  the  purpose  of  hunting  or  catching  game  of  any  kind, 
shall  be  guilty  of  a  misdemeanor,  punishable  by  a  fine  of 
not  more  than  one  thousand  dollars  or  by  imprisonment 
for  not  less  than  five  days  or  more  than  thirty  days,  or  by 
both  fine  and  imprisonment.''' 

§  1538.  Defense  for  cutting  timber.  That  in  the  States 
of  Colorado,  Montana,  Idaho,  North  Dakota,  and  South 
Dakota,  Wyoming,  New  Mexico  and  Arizona,  and  the  Dis- 
trict of  Alaska,  and  the  gold  and  silver  regions  of  Nevada, 
California,  Oregon,  and  Washington  and  the  Territoiy  of 
Utah  in  any  criminal  prosecution  or  civil  action  by  the 
United  States  for  a  trespass  on  such  public  timber  lands 
or  to  recover  timber  or  lumber  cut  thereon  it  shall  be  a 
defense  if  the  defendant  shall  show  that  the  said  timber 
was  so  cut  or  removed  from  the  timber  lands  for  use  in 
such  State  or  Territory  by  a  resident  thereof  for  agricul- 
tural, mining,  manufacturing,  or  domestic  purposes  under 
rules  and  regulations  made  and  prescribed  by  the  Secre- 
taiy  of  the  Interior  and  has  not  been  transported  out  of 
the  same,  but  nothing  herein  contained  shall  operate  to 
enlarge  the  rights  of  any  railway  company  to  cut  timber 
on  the  public  domain;  Provided,  That  the  Secretary  of 
the  Interior  may  make  suitable  rules  and  regulations  to 
cany  out  the  provisions  of  this  Act,  and  he  may  desig- 
nate the  sections  or  tracts  of  land  where  timber  may  be 

7— Act  Mar.  3,  1897,  39  Stat.  621. 
C.  L.— 72 


1138  Criminal  Law 

cut,  and  it  shall  not  be  lawful  to  cut  or  remove  any  timber 
except  as  may  be  prescribed  by  such  rules  and  regula- 
tions, but  this  Act  shall  not  operate  to  repeal  the  Act  of 
June  third,  eighteen  hundred  and  seventy-eight,  provid- 
ing for  the  cutting  of  timber  on  mineral  lands.® 

§  1539.  Register  and  receiver  is  empowered  to  subpoena 
witness.  That  registers  and  receivers  of  the  land  office, 
or  either  of  them,  in  all  matters  requiring  a  hearing 
before  them,  are  authorized  and  empowered  to  issue  sub- 
poenas directing  the  attendance  of  witnesses,  which 
subpoenas  may  be  served  by  any  person  by  delivering  a 
true  copy  thereof  to  such  witness,  and  when  served,  wit- 
nesses shall  be  required  to  attend  in  obedience  thereto: 
Provided,  That  if  any  subpoena  be  served  under  the  pro- 
visions of  this  Act  by  any  person  other  than  an  officer 
authorized  by  the  laws  of  the  United  States,  or  of  the 
State  or  Territory  in  which  the  depositions  are  taken,  the 
service  thereof  shall  be  proved  by  the  affidavit  of  the 
person  sennng  the  same:  Provided  further,  That  said 
subpoenas  shall  be  sei*\^ed  within  the  county  in  which  at- 
tendance is  required,  and  at  least  five  days  before  attend- 
ance is  required.® 

§  1540.  Witness  after  demand  and  payment  of  witness 
fee  failure  to  testify  misdemeanor.  Tliat  any  person  will- 
i'liliy  neglecting  or  rd'usi ug  obedience  to  such  subpoena, 
or  neglecting  or  rel'nsing  to  ai)i)ear  and  testify  when  sub- 
poenaed, his  fees  liaving  l)een  ])ai(l  if  dcinaiided,  shall  be 
deemed  guilty  of  a  misdemeanor,  for  which  he  sliall  be 
})nnished  by  indictment  in  the  district  court  of  the  United 
States  or  in  tlie  district  courts  of  the  Territories  exer- 
cising the  jni-is(iictioii  of  cii-cuit  or  distiict  courts  of  the, 
Ti'nited  Slates,  Tlie  i)niiisliineiit  for  such  offense,  n])on 
conviclion,  shall  lie  a  (in<'  of  not  more  than  two  hnndred 

8— Act    Mar.    3,    1901,    .31    Stat.  9— Sc-c.    1.   Act  .Tail.   :n,    1903,  32 

1436.  Htat.  790. 


Offenses  Relating  to  Public  Lands  1139 

dollars,  or  imprisonment  not  to  exceed  ninety  days,  or 
both,  at  the  discretion  of  the  court:  Provided,  That  if 
such  witness  has  been  prevented  from  obeying  such 
subpoena  without  fault  upon  his  part  he  shall  not  be 
punished  under  the  provisions  of  this  Act.^® 

§  1541.  Homestead  entrymen  and  witness  making  false 
affidavit  and  others  as  to  any  material  matter.  Guilty  of 
perjury.  That  hereafter  all  proofs,  allidavits,  and  oaths 
of  any  kind  whatsoever  required  to  be  made  by  applicants 
and  entrymen  under  the  homestead,  preemption,  tim- 
ber-culture, desert-land,  and  timber  and  stone  Acts, 
may,  in  addition  to  those  now  authorized  to  take  such 
affidavits,  proofs,  and  oaths,  be  made  before  any  United 
States  commissioner  or  commissioner  of  the  court  exercis- 
ing Federal  jurisdiction  in  the  Territory  or  before  the 
judge  or  clerk  of  any  court  of  record  in  the  county,  parish, 
or  land  district  in  which  the  lands  are  situated:  Pro- 
vided, That  in  case  the  affidavits,  proofs,  and  oaths  here-. 
inbefore  mentioned  be  taken  out  of  the  county  in  which 
the  land  is  located  and  applicant  must  show  by  affidavit, 
satisfactoiy  to  the  Commissioner  of  the  General  Land 
Office,  that  it  was  taken  before  the  nearest  or  most  acces- 
sible officer  qualified  to  take  said  affidavits,  proofs,  and 
oaths  in  the  land  districts  in  which  the  lands  applied  for 
are  located;  but  such  showing  by  affidavit  need  not  be 
made  in  making  final  proof  if  the  proof  be  taken  in  the 
town  or  city  where  the  newspaper  is  published  in  which 
the  final  proof  notice  is  printed.  The  proof,  affidavit,  and 
oath,  when  so  made  and  duly  subscribed,  or  which  may 
have  heretofore  been  so  made  and  duly  subscribed,  shall 
have  the  same  force  and  effect  as  if  made  before  the  reg- 
ister and  receiver,  when  transmitted  to  them  with  the  fees 
and  commissions  allowed  and  required  by  law.  If  any 
witness  making  such  proof,  or  any  applicant  making  such 

10— Sec.  3,  Act  Jan.  31,  1903,  32 
Stat.   790. 


1140  Ckimixal  Law 

affidavit  or  oath,  shall  knowingly,  w^illfully,  or  corruptly 
swear  falsely  to  any  material  matter  contained  in  said 
proofs,  affidavits,  or  oaths  he  shall  be  deemed  guilty  of 
perjury,  and  shall  be  liable  to  the  same  pains  and  penal- 
ties as  if  he  had  sworn  falsely  before  the  register.  The 
fees  for  entries  and  for  final  proofs,  when  made  before 
any  other  officer  than  the  register  and  receiver,  shall  be 
as  follows.^^ 

§  1542.  Punishment  for  destruction  of  historic  or  pre- 
historic ruins  on  government  land.  That  any  person  who 
shall  apjDropriate,  excavate,  injure,  or  destroy  any  historic 
or  prehistoric  ruin  or  monument,  or  any  object  of  an- 
tiquity, situated  on  lands  owned  or  controlled  by  the 
Government  of  the  United  States,  without  the  pennission 
of  the  Secretary  of  the  Department  of  the  Goveniment 
having  jurisdiction  over  the  lands  on  which  said  antiqui- 
ties are  situated,  shall,  upon  conviction,  be  fined  in  a  sum 
of  not  more  than  five  hundred  dollars  or  be  imprisoned 
for  a  period  of  not  more  than  ninety  days,  or  shall  suffer 
both  fine  and  imprisonment,  in  the  discre^  .  of  the 
court." 

§  1543.  Punishment  for  preventing  others  from  settling 
on  public  lands  under  Act  February  25,  1885,  23  Stat.  322. 
Tliat  any  person  violating  any  of  the  provisions  hereof, 
whether  as  owner,  part  owner,  or  agent,  or  who  shall  aid, 
abet,  counsel,  advise,  or  assist  in  any  violation  hereof, 
shall  be  deemed  guilty  of  a  misdemeanor  and  fined  in  a 
sum  not  exceeding  one  thousand  dollars  or  be  imprisoned 
not  exceeding  one  year,  or  botii,  for  each  offense." 

§  1544.  Unlawful  to  trap,  kill  or  capture  animals  in 
Grand  Canyon  Forest  Reserve  except  as  by  regulations. 
Tiiat  tlie  J'resident  ol'  (lie  United  Stales  is  hereby  aulhor- 

n— Act.  Mar.  4,  1904,  R.  S.  2294,  13— Sec.  4,  Act  Mar.  10,  1908,  35 

33  Stat.  59.  St.at.  40. 

12— Sec.  1,  Act  Juno  8,  1900,  34 
Stat.  225. 


Offenses  Relating  to  Public  Lands  1141 

ized  to  designate  such  areas  in  the  Grand  Canyon  Forest 
Reserve  as  should,  in  his  opinion,  be  set  aside  for  the 
protection  of  game  animals  and  be  recognized  as  a  breed- 
ing place  therefor. 

That  when  such  areas  have  been  designated  as  pro- 
vided in  section  one  of  this  Act,  hunting,  trapping,  killing, 
or  capturing  of  game  animals  upon  the  lands  of  the  United 
States  within  the  limits  of  said  areas  shall  be  unlawful, 
except  under  such  regulations  as  may  be  prescribed  from 
time  to  time  by  the  Secretary  of  Agriculture;  and  any 
person  violating  such  regulations  or  the  provisions  of  this 
Act  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall, 
upon  conviction  in  any  United  States  court  of  competent 
jurisdiction,  be  fined  in  a  sum  not  exceeding  one  thou- 
sand dollars  or  by  imprisonment  for  a  period  not  exceed- 
ing one  year,  or  shall  suffer  both  fine  and  imprisonment, 
in  the  discretion  of  the  court. 

That  it  is  the  pui^ose  of  this  Act  to  protect  from  tres- 
pass the  public  lands  of  the  United  States  and  the  game 
animals  which  may  be  thereon,  and  not  to  interfere  with 
the  operation  of  the  local  game  laws  as  affecting  private. 
State,  or  Territorial  lands.^* 

§  1545.  Punishment  for  hunting,  catching,  willfully  de- 
stroying or  killing  birds  and  animals  in  limits  as  provided 
under  Act  August  11,  1916.  The  President  of  the  United 
States  is  hereby  authorized  to  designate  such  areas  on  any 
lands  which  have  been,  or  which  may  hereafter  be,  pur- 
chased by  the  United  States  under  the  provisions  of  the 
Act  of  March  first,  nineteen  hundred  and  eleven  (Thirty- 
sixth  Statutes  at  Large,  page  nine  hundred  and  sixty- 
one),  entitled  '*An  Act  to  enable  any  State  to  cooperate 
with  any  other  State  or  States,  or  with  the  United  States, 
for  the  protection  of  watersheds  of  navigable  streams,  and 
to  appoint  a  commission  for  the  acquisition  of  lands  for 

M— Sees.    1,    2,   3,   Act  June   29, 
1906,  34  Stat.  607. 


1142  Cri:mixal  Law 

the  purpose  of  conserving  the  navigability  of  navigable 
streams,"  and  Acts  supplementary  thereto  and  amenda- 
tory thereof,  as  should,  in  his  opinion,  be  set  aside  for  the 
protection  of  game  animals,  birds,  or  fish;  and  whoever 
shall  hunt,  catch,  trap,  willfully  disturb  or  kill  any  kind 
of  game  animal,  game  or  nongame  bird,  or  fish,  or  take 
the  eggs  of  any  such  bird  on  any  lands  so  set  aside,  or  in 
or  on  the  waters  thereof,  except  under  such  general  rules 
and  regulations  as  the  Secretaiy  of  Agriculture  may  from 
time  to  time  prescribe,  shall  be  fined  not  more  than  $500 
or  imprisoned  not  more  than  six  months,  or  both." 

15— Act  Aug.   11,  1916,  39  Stat. 
476. 


CHAPTER  LXXVIII 


VIOLATION   OF    QUARANTINE   LAWS 


§  1548.  Trespassing  upon  quarantine       §  1556. 
reservation     p  r  o  h  ibited ; 
punishment. 

§  1549.  In   cases   cholera   and   other 

certain  diseases  Secretary      §  1557. 
makes    rules    and    regula- 
tions to  prevent  spread  of 
disease;     punishment     for       §  1558. 
violation. 

§  1550.  Any  officer  or  agent,  etc., 
for  U.  S.  at  any  quaran- 
tine station  who  violates 
the  rules  and  regulations  §  1559. 
as  provided  in  Sec.  1  this 
Act,  guilty  of  misde- 
meanor. 

§  1551.  Common     carrier      viohiting 

quarantine  laws,  rules  and       §  15G0. 
regulations,     officers     and 
agents;    punishments. 

§  1552.  Punishment  for  moving  dis- 
eased  carcasses   from   one       §  1561. 
State  to  another,  penalty, 
Act  Mar.  3,  1891. 

§  1553.  Importing     diseased     cattle,       §  1562. 
etc. ;       punishment       for 
knowingly  doing  so. 

§  1554.  Master    or    owner    violating 

Act  Mar.  3,  1901,  or  any       §  1563. 
regulations   thereunder   in 
relation    to    inspection    of 
vessels   on  the   prevention       §  1564. 
of  diseases. 

§  1555.  Illegal  for  merchant  or  other 
vessel  from  foreign  port 
to  enter  U.  S.  port  except 
as  prescribed  by  Act  Feb. 
15,  1893. 

1143 


Secretary  of  Agriculture 
may  make  regulations  and 
quarantine  against  dis- 
eased stock. 

Violations  Act  Feb.  2,  1903, 
and  regulations  there- 
under. 

Violating  rules  of  Secretary 
of  Agriculture  in  shipping 
condemned  carcasses  of 
cattle,  etc.,  from  one  State 
to  another. 

Inspection  of  carcasses  of 
cattle  the  regulation  Agri- 
culture Department ;  de- 
facing stamp,  etc.;  pun- 
ishment. 

No  railroad  shall  receive  for 
shipment  cattle  from  one 
quarantined  State  to  an- 
other. 

Secretary  may  make  regu- 
lations for  shipping  cat- 
tle, etc. 

Cattle  may  be  moved  from 
quarantine  in  accordance 
with  regulations  of  Secre- 
tary of  Agriculture. 

Punishment  for  violating 
provisions  of  Act  of  Mar. 
3,  1905. 

Entering  or  departing  into 
or  from  any  quarantine 
grounds  in  violation  of 
law,  and  an  officer  making 
false  statement,  misde- 
meanor. 


1144  Ckimix.^  Law 

§  1548.  Trespassing  upon  quarantine  reservation  pro- 
hibited. Punishment.  That  whenever  any  person  shall 
trespass  upon  the  grounds  belonging  to  any  quarantine 
reser^^ation,  or  whenever  any  person,  master,  pilot,  or 
owner  of  a  vessel  entering  any  port  of  the  United  States, 
shall  so  enter  in  violation  of  section  one  of  the  xVct  entitled 
''  An  Act  to  prevent  the  introduction  of  contagious  or 
infectious  diseases  into  the  United  States,"  approved 
April  twenty-ninth,  eighteen  hundred  and  seventy-eight 
or  in  violation  of  the  quarantine  regulations  framed  under 
said  Act,  such  person,  trespassing,  or  such  master,  pilot, 
or  other  person  in  command  of  a  vessel  shall,  upon  con- 
viction thereof,  pay  a  fine  of  not  more  than  three  hundred 
dollars,  or  be  sentenced  to  imprisonment  for  a  period  of 
not  more  than  thirty  days,  or  shall  be  punished  by  both 
fine  and  imprisonment,  at  the  discretion  of  the  court.  And 
it  shall  be  the  duty  of  the  United  States  attorney  in  the 
district  where  the  misdemeanor  shall  have  been  com- 
mitted to  take  immediate  cognizance  of  the  offense,  upon 
report  made  to  him  by  any  medical  officer  of  the  IMarine- 
Ilospital  Sendee,  or  by  any  officer  of  the  customs  service, 
or  by  any  State  officer  under  authority  of  section  five  of 
.said  Act.* 

§  1549.  In  cases  cholera  and  other  certain  diseases  sec- 
retary makes  rules  and  regulations  to  prevent  spread  of 
disease.  Punishment  for  violation.  That  wlienever  it 
sliall  be  made  to  ai)])car  to  the  satisfaction  of  the  Presi- 
dent that  cholera,  yellow-fever,  smallpox,  or  plague  exists 
in  any  State  or  Territory,  or  the  District  of  Columbia,  and 
tliat  there  is  danger  of  tlie  spread  of  such  disease  into 
other  States,  Territories,  or  the  District  of  Columbia,  he 
is  hereby  authorized  to  cause  the  Sccretaiy  of  the  Treas- 
ury to  promulgate  such  rules  and  regulations  as  in  his 
judgment  may  be  necessary  to  prevent  the  spread  of  such 

1— See.    1,   Art    AuR.    1,   1888,   25 
fitat.    355. 


Violation  of  Quarantine  Laws  1145 

disease  from  one  State  or  Territory  into  another,  or  from 
any  State  or  Territory  into  the  District  of  Columbia,  or 
from  the  District  of  Columbia  into  any  State  or  Territory, 
and  to  employ  such  inspectors  and  other  persons  as  may 
be  necessary  to  execute  such  regulations  to  prevent  the 
spread  of  such  disease.  The  said  rules  and  regulations 
shall  be  prepared  by  the  Supervising  Surgeon-General  of 
the  Marine-Hospital  Service  under  the  direction  of  the 
Secretary  of  the  Treasury.  And  any  persons  who  shall 
willfully  violate  any  rule  or  regulation  so  made  and  pro- 
mulgated shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  punished  by  a  fine  of  not  more 
than  five  hundred  dollars  or  imprisonment  for  not  more 
than  two  years,  or  both,  in  the  discretion  of  the  court.^ 

§  1550.  Any  officer  or  agent,  etc.,  for  U.  S.  at  any  quar- 
antine station  who  violates  the  rules  and  regulations  as 
provided  in  section  one  this  act  guilty  of  misdemeanor. 

That  any  officer  or  person  acting  as  an  officer,  or  agent  of 
the  United  States  at  any  quarantine  station,  or  other  per- 
son employed  to  aid  in  preventing  the  spread  of  such 
disease,  who  shall  willfully  violate  any  of  the  quarantine 
laws  or  the  United  States,  or  any  of  the  rules  and  regula- 
tions made  and  promulgated  by  the  Secretaiy  of  the 
Treasury  as  provided  for  in  section  one  of  this  Act,  or  any 
lawful  order  of  his  superior  officer  or  officers,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  punished  by  a  fine  of  not  more  than  three  hundred 
dollars  or  imprisonment  for  not  more  than  one  year,  or 
both,  in  the  discretion  of  the  court.^ 

§  1551.  Common  carrier  violating  quarantine  laws, 
rules  and  regulations.  Officers  and  agents.  Punishments. 
That  when  any  common  carrier  or  officer,  agent,  or  em-' 
ployee  of  any  common  carrier  shall  willfully  violate  any 

2— See.  1,  Act  Mar.  27,  1890,  26  3— Sec.  2,  Act  Mar.  27,  1890,  26 
Stat.  31.  Stat.  31. 


1146  Criminal  Law 

of  the  quarantine  laws  of  the  United  States,  or  the  rules 
and  regulations  made  and  promulgated  as  provided  for  in 
section  one  of  this  Act,  such  common  carrier,  officer,  agent 
or  employee  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall,  on  conviction,  be  punished  by  a  fine  of  not  more 
than  five  hundred  dollars,  or  imprisonment  for  not  more 
than  two  years,  or  both,  in  the  discretion  of  the  court.* 

§  1552.  Punishment  for  moving-  diseased  carcasses  from 
one  state  to  another,  penalty,  Act  March  3,  1891.  That  it 
shall  be  unlawful  for  any  person  to  transport  from  one 
State  or  Territory  or  the  District  of  Columbia  into  any 
other  State  or  Territory  or  the  District  of  Columbia,  or 
for  any  person  to  deliver  to  another  for  transportation 
from  one  State  or  Territoiy  or  the  District  of  Columbia 
into  another  State  or  Territory  or  the  District  of  Colum- 
bia the  carcasses  of  any  cattle,  sheep,  or  swine,  or  the  food 
products  thereof,  which  have  been  examined  in  accord- 
ance with  the  provisions  of  sections  three  and  four  of  this 
Act  and  which  on  said  examination  have  been  declared  by 
the  inspector  making  the  same  to  be  unsound  or  diseased. 
Any  person  violating  the  provisions  of  this  section  shall 
be  deemed  guilty  of  a  misdemeanor  and  punished  for  each 
offense  as  provided  in  section  four  of  this  act.^ 

§  1553.  Importing  diseased  cattle,  etc.,  punishment  for 
knowingly  doing  so.  That  the  imporlatioii  of  neat  cattle, 
.shi'L'iJ,  and  otiicr  iiimiiiaiits,  and  swiiio,  whicli  aiT  diseased 
or  infected  willi  any  disease,  or  wliicli  shall  have  been 
exposed  to  such  infection  within  sixty  days  next  before 
their  exportation,  is  hcrel)y  prohibited;  and  any  person 
wlio  shall  knowingly  violate  the  foregoing  provision  shall 
be  deemed  guilty  of  a  luisdeiiieanoi-,  and  shall,  on  convic- 
tion, be  punished  by  a  tine  not  exceeding  live  thousand 
dollars,  or  by  imprisonment  not  exceeding  three  years, 

4— Sec.  3,  Act  Mar.   27,   1890,  2G  5— Sec.   T),   Act   Mar.   3,   1891,   26 

Htflt.  32.  Htnt.   1090. 


\'i()i.A'ri().\  OK  Quarantine  Ijaws  1147 

and  any  vessel  or  vehicle  used  in  such  unlawful  importa- 
tion with  the  knowledge  of  the  master  or  owner  of  said 
vessel  or  vehicle  that  such  importation  is  diseased  or 
has  been  exposed  to  infection  as  herein  described,  shall 
be  forfeited  to  the  United  States.^ 

§  1554.  Master  or  owner  violating  Act  March  3,  1901, 
or  any  reg-ulations  thereunder  in  relation  to  inspection  of 
vessels  on  the  prevention  of  diseases.  The  Supervising 
Surgeon-General,  with  the  approval  of  the  Secretary  of 
the  Treasury,  is  authorized  to  designate  and  mark  the 
boundaries  of  the  quarantine  grounds  and  quarantine 
anchorages  for  vessels  which  are  reserved  for  use  at  each 
United  States  quarantine  station;  and  any  vessel  or  officer 
of  any  vessel  or  other  person,  other  than  State  or  munici- 
pal health  or  quarantine  officers,  trespassing  or  otherwise 
entering  upon  such  grounds  or  anchorages  in  disregard, 
of  the  quarantine  rules  and  regulations,  or  without  per- 
mission of  the  officer  in  charge  of  such  station,  shall  be 
deemed  guilty  of  a  misdemeanor  and  subject  to  arrest, 
and  upon  conviction  thereof  be  punished  by  a  fine  of  not 
more  than  three  hundred  dollars  or  imprisonment  for  not 
more  than  one  year,  or  both,  in  the  discretion  of  the  court. 
Any  master  or  owner  of  any  vessel,  or  any  person  violat- 
ing any  provision  of  this  Act  or  any  rule  or  regulation 
made  in  accordance  with  this  Act,  relating  to  inspection 
of  vessels  or  relating  to  the  owner,  or  agent  of  any  vessel 
making  a  false  statement  relative  to  the  sanitary  condi- 
tion of  said  vessel  or  its  contents  or  as  to  the  health  of  any 
passenger  or  person  thereon,  shall  be  deemed  guilty  of  a 
misdemeanor  and  subject  to  arrest,  and  upon  conviction 
thereof  be  punished  by  a  fine  of  not  more  than  five  hun- 
dred dollars  or  imprisonment  for  not  more  than  one  year, 
or  both,  in  the  discretion  of  the  court.'' 

6— See.   6,  Act  Aug.  30,  1890,  26  7— Sec.   10,  Act  Mar.   3,   1901,  31 

Stat.  416.  Stat.    1086. 


1148  Ceiminax,  Law 

§  1555.  Illegal  for  merchant  or  other  vessel  from  for- 
eigTi  port  to  enter  U.  S.  port  except  as  prescribed  by  Act 
Feb.  15,  1893.  It  shall  be  unlawful  for  any  merchant  ship 
or  other  vessel  from  any  foreign  port  or  place  to  enter 
any  port  of  the  United  States  except  in  accordance  with 
the  provisions  of  this  Act  and  with  such  rules  and  regula- 
tions of  State  and  municipal  health  authorities  as  may  be 
made  in  pursuance  of,  or  consistent  with  this  Act ;  and  any 
such  vessel  which  shall  enter,  or  attempt  to  enter,  a  port 
.of  the  United  States  in  violation  thereof  shall  forfeit  to 
the  United  States  a  sum,  to  be  awarded  in  the  discretion 
of  the  court,  not  exceeding  five  thousand  dollars,  which 
shall  be  a  lien  upon  said  vessel,  to  be  recovered  by  pro- 
ceedings in  the  proper  district  court  of  the  United  States. 
In  all  such  proceedings  the  United  States  district  attor- 
ney for  such  district  shall  appear  on  behalf  of  the  United 
States;  and  all  such  proceedings  shall  be  conducted  in 
accordance  with  the  rules  and  laws  governing  cases  of 
seizure  of  vessels  for  violation  of  the  revenue  laws  of  the 
United  States.' 

§  1556.  Secretary  of  Agriculture  may  make  regulations 
and  quarantine  against  diseased  stock.  That  the  Secre- 
tary of  Agriculture  shall  have  authority  to  make  sucli 
regulations  and  take  such  measures  as  he  may  deem 
proper  to  prevent  the  introduction  or  dissemination  of  the 
contagion  of  any  contagious  infections,  or  communicable 
disease  of  animals  from  a  foreign  country  into  the  United 
States  or  from  one  State  or  Territory  of  the  United  States 
or  the  District  of  Columbia  to  another,  and  to  seize,  quar- 
antine, and  dispose  of  any  hay,  straw,  forage,  or  simihir 
material,  or  any  meats,  liides,  or  other  animal  products 
coming  fi-oiii  an  infected  foreign  country  to  the  United 
States,  or  from  one  State  or  Territory  or  the  District  of 
Cohnnbia  in  transit  to  another  State  or  Territory  or  the 

8— Si-c.    1,   Act  Feb.   15,   1893,   27 
Stat.  449. 


Violation  of  Quarantine  Laws  1149 

District  of  Columbia  whenever  in  his  judgment  such 
action  is  advisable  in  order  to  guard  against  the  introduc- 
tion or  spread  of  such  contagion.® 

§  1557.  Violations  Act  Feb.  2,  1903,  and  regulations 
thereunder.  That  any  person,  company,  or  corporation 
knowingly  violating  the  provisions  of  this  Act ,  or  the 
orders  or  regulations  made  in  pursuance  thereof  shall  be 
guilty  of  a  misdemeanor,  and  on  conviction  shall  be  pun- 
ished by  a  fine  of  not  less  than  one  hundred  dollars  nor 
more  than  one  thousand  dollars,  or  by  imprisonment  not 
more  than  one  year,  or  by  both  such  fine  and  imprison- 
ment.^° 

§  1558.  Violating  rules  of  Secretary  of  Agriculture  in 
shipping  condemned  carcasses  of  cattle,  etc.,  from  one 
state  to  another.  The  Secretary  of  Agriculture  is  hereby 
authorized  to  make  such  rules  and  regulations  as  he  may 
decide  to  be  necessary  to  prevent  the  transportation  from 
one  State  or  Territory  or  the  District  of  Columbia  into 
any  other  State  or  Territory  or  the  District  of  Columbia, 
or  to  any  foreign  country,  of  the  condemned  carcasses  or 
parts  of  carcasses  of  cattle,  sheep,  and  swine,  which  have 
been  inspected  in  accordance  with  the  provisions  of  this 
Act.  Any  person,  company,  or  corporation  owning  or  op- 
erating any  such  slaughter-house,  abattoir,  or  meat 
curing,  packing,  or  canning  establishment,  or  any  em- 
ployee of  the  same,  that  shall  willfully  violate  any 
provision  of  this  Act  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished  for 
each  offense  by  a  fine  not  exceeding  one  thousand  dollars 
or  imprisonment  not  exceeding  one  year,  or  by  both 
said  punishments,  in  the  discretion  of  the  court.^^ 

9— Sec.   2,   Act  Feb.   2,   1903,  32  11— Sec.  4,  Act  Mar.  2,  1895,  28 

Stat.   792.  Stat.    732,    Amendment. 

10— Sec.  3,  Act  Feb.  2,  1903,  32 
Stat.  792. 


1150  Crimixal  Law 

§  1559.  Inspection  of  carcasses  of  cattle  the  regulation 
Agriculture  Department,  defacing  stamp,  etc. — Punish- 
ment. That  said  exainination  shall  be  made  in  the  man- 
ner provided  by  rules  and  regulations  to  be  prescribed 
by  the  Secretary"  of  Agriculture,  and  after  said  examina- 
tion the  carcasses  and  products  of  all  cattle,  sheep,  and 
swine  found  to  be  free  of  disease  and  wholesome,  sound, 
and  fit  for  human  food  shall  be  marked,  stamped,  or 
labeled  for  identification  as  may  be  provided  by  said 
rules  and  regulations  of  the  Secretary  of  Agriculture. 
Any  person  who  shall  forge,  counterfeit,  simulate,  imi- 
tate, falsely  represent,  or  use  without  authority,  or  know- 
ingly and  wrongfully  alter,  deface,  or  destroy  any  of 
the  marks,  stamps,  or  other  devices  provided  for  in  the 
regulations  of  the  Secretary  of  Agriculture,  of  any  such 
carcasses  or  their  products,  or  who  shall  forge,  counter- 
feit, simulate,  imitate,  falsely  represent,  or  use  without 
authority,  or  knowingly  and  wrongfully  alter,  deface,  or 
destroy  any  certificate  or  stamp  provided  in  said  regu- 
lations, shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof  shall  be  punished  by  a  fine  not 
exceeding  one  thousand  dollars,  or  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the 
discretion  of  the  court.^^ 

§  1560.  No  railroad  shall  receive  for  shipment  cattle 
from  one  quarantined  State  to  another.  Tliai  no  rail- 
road company  or  llic  owners  or  masters  of  any  steam 
or  sailing  or  other  vessel  or  l)oat  shall  receive  for  trans- 
])ortation  or  transport  from  any  quarantined  State  or 
Territoiy  or  tlie  District  of  Columbia,  or  from  tlie  quaran- 
tined portion  of  any  State  or  Territory  or  District  of 
("oluml)ia,  into  any  otlicr  State  or  Territory  or  the  Dis- 
trict of  Cohinil)ia,  any  calth*  or  other  live  stock,  except 
as  hereinafter  jji-ovided;  nor  shall  any  person,  company, 

12— Sec.    4,    Act    Mar.    1895,    28 
Htnt.   732,   Amcndniont. 


Violation  of  Quarantine  Laws  1151 

or  corporation  deliver  for  such  transportation  to  any 
railroad  company,  or  to  the  master  or  owner  of  any 
boat  or  vessel,  any  cattle  or  other  live  stock,  except  as 
hereinafter  provided;  nor  shall  any  person,  company,  or 
corporation  drive  on  foot,  or  cause  to  be  driven  on  foot, 
or  transport  in  private  conveyance  or  cause  to  be  trans- 
ported in  private  conveyance,  from  a  quarantined  State 
or  Territoiy  or  the  District  of  Columbia,  or  from  the 
quarantined  portion  of  any  State  or  Territory  or  the 
District  of  Columbia,  into  any  other  State  or  Territory 
or  the  District  of  Columbia,  any  cattle  or  other  live 
stock,  except  as  hereinafter  provided. ^^ 

§  1561.  Secretary  may  make  regulations  for  shipping 
cattle,  etc.  That  it  shall  be  the  duty  of  the  Secretary  of 
Agriculture,  and  he  is  hereby  authorized  and  directed, 
when  the  public  safety  will  permit,  to  make  and  promul- 
gate rules  and  regulations  which  shall  permit  and  gov- 
ern the  inspection,  disinfection,  certification,  treatment, 
handling,  and  method  and  manner  of  delivery  and  ship- 
ment of  cattle  or  other  live  stock  from  a  quarantined 
State  or  Territory  or  the  District  of  Columbia,  and  from 
the  quarantined  portion  of  any  State  or  Territoiy  or 
the  District  of  Columbia,  into  any  other  State  or  Terri- 
toiy or  the  District  of  Columbia;  and  the  Secretary  of 
Agriculture  shall  give  notice  of  such  rules  and  regula- 
tions in  the  manner  provided  in  section  two  of  this  Act 
for  notice  of  establishment  of  quarantine." 

§  1562.  Cattle  may  be  moved  from  quarantine  in  ac- 
cordance with  regulations  of  Secretary  of  Agriculture. 
That  cattle  or  other  live  stock  may  be  moved  from  a 
quarantined  portion  of  any  State  or  Territoiy  or  the 
District  of  Columbia,  into  any  other  State  or  Territory 
or  the  District  of  Columbia,  under  arid  in  compliance 

13— See.  2,  Act  Mar.  3,  1905,  33  14— Sec.  3,  Act  Mar.  3,  1905,  33 

Stat.   1264.  Stat.   1265. 


1152  Ceimixal  Law 

witli  the  rules  and  regulations  of  the  Secretary  of  Agri- 
culture, made  and  promulgated  in  pursuance  of  the  pro- 
visions of  section  three  of  this  Act;  but  it  shall  be  un- 
lawful to  move,  or  to  allow  to  be  moved,  any  cattle  or 
other  live  stock  from  any  quarantined  State  or  Territory 
or  the  District  of  Columbia,  or  from  the  quarantined 
portion  of  any  State  or  Territory  or  the  District  of  Co- 
lumbia, into  any  other  State  or  Territory  or  the  District 
of  Columbia,  in  manner  or  method  or  under  conditions 
other  than  those  prescribed  by  the  Secretary  of  Agri- 
culture.^'^ 

§  1563.  Punishment  for  violating  provision  of  Act  of 
March  3,  1905.  That  any  person,  company,  or  coi'pora- 
tion  violating  the  provisions  of  sections  two  or  four  of 
this  Act  shall  be  guilty  of  a  misdemeanor,  and  on  con- 
viction shall  be  punished  by  a  fine  of  not  less  than  one 
hundred  dollars  nor  more  than  one  thousand  dollars,  or 
by  imprisonment  not  more  than  one  year,  or  by  both 
such  fine  and  imprisonment.^^ 

§  1564.  Entering  or  departing  into  or  from  any  quaran- 
tine grounds  in  violation  of  law — And  an  officer  maJcing 
false  statement — Misdemeanor.  That  any  vessel,  or  any 
officer  of  any  vessel,  or  other  person  other  than  State 
health  or  quarantine  officers,  entering  within  the  limits 
of  any  quarantine  grounds  and  anclioragcs,  or  any 
quarantine  station  and  anchorage,  or  departing  there- 
from, in  disregard  of  the  quarantine  rules  and  regula- 
tions or  without  the  permission  of  the  officer  in  charge 
of  such  quarantine  ground  and  anchorage,  or  of  such 
quarantine  station  and  anchorage,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be 
punished  by  a  fine  of  not  more  tlian  three  hundred  dol- 
lars or  by  imprisonment  for  not  more   than  one  year, 

15— Sec.  4,  Act  Mar.  3,  1905,  33  16— Sec.  6,  Act  Mar.  3,  1905,  33 

Stat.  1265.  Stat.  1265. 


Violation  of  Quarantine  Laws  1153 

or  both,  in  the  discretion  of  the  court.  That  any  master 
or  owner  of  any  vessel  violating  any  provision  of  this 
Act,  or  any  provision  of  an  Act  entitled  ''An  Act  grant- 
ing additional  powers  and  imposing  additional  duties  on 
the  Marine-Hospital  Service,  approved  February  fif- 
teenth, eighteen  hundred  and  ninety-three,  or  violating 
any  rule  or  regulation  made  in  accordance  with  this  Act 
or  said  Act  of  February  fifteenth,  eighteen  hundred  and 
ninety-three,  relating  to  the  inspection  of  vessels  or  to 
the  prevention  of  the  introduction  of  contagious  or  in- 
fectious diseases  into  the  United  States,  or  any  master, 
owner,  or  agent  of  any  vessel  making  a  false  statement 
relative  to  the  sanitary  condition  of  such  vessel  or  its 
contents,  or  as  to  the  health  of  any  passenger  or  person 
thereon  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  be  punished  by  a  fine  of  not  more  than 
five  hundred  dollars  or  imprisonment  for  not  more  than 
one  year,  or  both,  in  the  discretion  of  the  court.^'' 

17— See.  4,  Act  June  19,  1906,  34 
Stat.  300. 


C.  K— 73 


CHAPTER  LXXVIX 

VIOLATIONS   OF   INTEKNAL   REVENUE 


§  1566. 


§1567. 


1568. 
1569. 


§  1570. 


§  1571. 


§  1572. 


§  1573. 


§  1574. 


8  1575. 


I  1576. 


Income  tax  provisions,  pun-       §  1577. 

ishment    for    violation    of 

revenue   laws   and   regula- 
tions. 
Produce  sale  for  future  de- 
livery;     punishment      for       §  1578. 

delivery    without    stamped 

bill,  produce,  sales  of,  on       §  1579. 

exchange. 
Stamps    must    be    cancelled. 
Fraudulently  using,  cutting,      §  1580. 

and  attaching  and  affixing 

adhesive  stamp  or  impres- 
sions of  stamps. 
Schedule  "A"  stamp  taxes,       §  1581. 

punishment  for  sale,  etc., 

without  affixing  stamp. 
Statement  intended  to  make       §  1582. 

one  believe  that  the  price 

is    part    of    tax    imposed,       §  1583. 

punished. 
Making,   signing,   or  accept- 
ing    instruments     without 

stamps;    punishment.  §  1584. 

Unlawful    for    any    deputy, 

or    collector,    or    employee 

to      divulge      information,       §  1585. 

etc. 
Punishment  for  refusing  the 

inspection    of    mine,    etc.,       §  1586. 

under    cliild    labor    provi- 

Hion. 
The  price  of  ticket  and  name       8  1587. 

of   vendor  must  be  stamped 

on    face.  S  1588. 

Title  IV,  Act  Feb.  24,  1910. 

I  1  r)4 


Provisions  imposing  addi- 
tional tax  on  liquors, 
purifying  and  rectifying 
within  meaning  of  Sec. 
3244,   E.   S. 

For  failing  to  pay  tax  and 
make  return,  etc. 

Fraudulently  executing  doc- 
imients  relating  to  revenue 
laws. 

Defrauding  or  attempting 
to  defraud  U.  S.  Govern- 
ment in  carrying  on  dis- 
tillery. 

General  revenue  Act  July  20, 
1868,  fraudulent  gauging, 
etc. 

Meaning  of  words  ' '  white 
phosphorus. ' ' 

One  tiiousand  dollars  fine 
for  failing  to  conduct 
business  according  to  reg- 
ulations. 

Penalty  for  failing  to  affix, 
etc.,  stamp  according  to 
Government   regulations. 

Collector  shall  furnish 
staiiijis  to  lie  sold  manu- 
facturer. 

Packages  of  matches  found 
without  stamps  shall  bo 
forfeited  to  the  U.   S. 

Penalty  for  defacing  stamps 
on  matches. 

Penalty  for  insufficient 
stamps. 


Violations  of  Internal  Revenue 


1155 


§  1589.  Penalty  for  failing  to  use 
stamps  on  matches. 

§  1590.  Manner  of  packing  matches, 
must  be  stamped. 

§  1591.  Penalty  for  match  manufac- 
turer who  fails  to  register. 

§  1592.  Tobacco  manufacturer  must 
secure  certificate  showing 
machines,  etc. ;  punishment 
for   failure. 

§  1593.  Manufacturer  of  tobacco 
must  post  sign  on  build- 
ing. 

§  1594.  A  tobacco  peddler  must  ex- 
hibit certificate  on  demand 
of  revenue  agent;  penalty 
for  failure. 

§  1596.  Eelanding  tobacco,  snuff,  or 
cigars  with  intent  to  de- 
fraud. 

§  1597.  Manufacturer  of  cigars  fail- 
ing to  give  bond;  penalty. 

§  1598.  Manufacturer  must  keep 
sign   posted. 

§  1599.  Wilful  neglect  in  making 
true  inventory  and  ab- 
stracts, by  manufacturer 
of  cigars. 

§  1600.  Cigars  not  weighing  more 
than  three  pounds  per 
thousand  must  be  packed 
in  boxes  not  used  before. 

§  1601.  Penalty  for  failure  to  put 
notice  on  each  box  cigars. 

§  1602.  Cigars  must  not  be  removed 
from  manufactory  with- 
out boxing. 

§  1603.  The  actual  maker  of  cigars 
upon  commission  contract 
must  affix  stamp  before 
the  same  are  removed. 

§  1604.  Cigars  imported,  must  pay 
import  duties  and  tax  re- 
quired of  manufacturer  in 
U.    S. 


§  1605.  Imported  cigars  must  be 
properly  packed  and 
stamped  before  sale. 

§  1606.  Penalty  for  purchasing  or 
receiving  unbranded  and 
unstamped  cigars. 

§  1607.  Washed  or  restored  revenue 
stamp;  penalty  under  Act 
Aug.    27,    1894. 

§  1608.  Oleomargarine  must  be  sold 
in  wooden  or  paper  pack- 
ages; penalty  for  viola- 
tion. 

§  1609.  Putting  on  a  counterfeit  or 
used  stamp,  etc.,  on  pack- 
age of  tobacco,  a  felony. 

§  1610.  Wilfully  refusing  to  cancel 
stamp  after  package  or 
box  is  emptied  is  a  crime. 

§  1611.  Taxes  in  addition  to  import 
duties  on  tobacco  must  be 
paid,  or  officer  permitting 
same  to  pass  without  com- 
pliance with  provisions  is 
guilty  of  crime. 

§  1612.  A  dealer  in  leaf  tobacco 
who  wilfully  neglects  or 
wilfully  refuses  to  keep 
books  as  required. 

§  1613.  Punishment  for  selling  or 
offering  to  sell  snuff  or 
manufactured  tobacco  not 
put  up  in  packages  and 
stamped. 

§  1614.  Unlawful  to  purchase  or  se- 
cure tobacco  for  sale  not 
branded  or  marked;  pun- 
ishment. 

§  1615.  Manufacturing  tobacco  for 
another  on  commission, 
tax  must  be  paid  by  the 
actual  maker;  fraud; 
punishment. 

§  1616.  Selling  or  removing  without 
payment  of  the  stamp  de- 
noting ta^  unlawful. 


1156 


Criminal  Law 


§  1617.  Eemoving  from  any  manu- 
factory any  tobacco  or 
snuff  without  being 
stamped  in  proper  pack- 
ages. 

§  1618.  The  kind  or  brand  that  must 
be  put  upon  package  of 
flour,  penalty  for  viola- 
tion. 

§  1619.  Falsely  marking  unbranded 
packages  of  flour,  penalty. 

§  1620.  Failure  to  label  packages  of 
flour,  penalty. 

§  1621.  Tax  stamps  must  be  put  up- 
on all  barrels  or  packages, 
penalty. 

§  1622.  Imported  mixed  flour 
marked,  etc.,  and  stamped 
as  such  flour  made  and 
packed  in  U.  S.,  penalty 
for  violation. 

S  1623.  Stamp  on  empty  package  of 
mixed  flour  must  be  de- 
stroyed, penalty. 

§  1624.  Purchasing  or  securing  for 
sale  flour  upon  which  tax 
has  not  been  paid,  penalty. 

§  1625.  Penalty  for  subsequent  of- 
fenses  is  imprisonment. 

FILLED  CHEESE 

§  1626.  All  retail  and  wholesale 
dealers  must  display  sign, 
penalty. 

§  1627.  Stamp  on  empty  packages 
of  filled  clieese  must  be 
destroyed. 

§  1628.  Manufacturer  of  filled  cheese 
Hhall  post  notice  on  pack- 
age, penalty. 

S  1629.  Retailers  in  filled  cheese 
Hhall  sell  from  original 
stamped  packages,  viola- 
tion. 

S  1630.  Manufacturer  of  filled 
cheese,  regulations  and 
penalties. 


§  1631.  Manufacturer  of  oleomar- 
garine defrauding  or  at- 
tempting to  defraud  Gov- 
ernment of  tax. 

§  1632.  Wilfully  removing  or  defac- 
ing stamps  on  oleomargar- 
ine, misdemeanor. 

§  1633.  Stamps  on  emptied  pack- 
ages of  oleomargarine 
must  be  destroyed,  penalty 
for  violation. 

§  1634.  Customs  officer  permitting 
imported  oleomargarine  to 
pass  out  of  his  possession, 
etc.,  without  complying 
with  law. 

§  1635.  Notice  by  manufacturer  of 
oleomargarine  must  be 
posted   on   every  package. 

§  1636.  Violating  the  act  of  Aug. 
2,  1886,  relating  to  oleo- 
margarine. 

§1637.  Definition  of  "butter"  and 
affixing  penalties  Act  May 
9,  1902. 

§  1638.  Kenovatcd  butter,  h  o  w 
marked. 

§  1639.  Wholesale  dealer  in  oleomar- 
garine must  keep  book  as 
required  by  commission  of 
internal  revenue. 

FOOD    AND    DRUGS 

§  1640.  Food     and     Drugs     Act     of 

.Tune  30,  1906,  not  affected 

by  opium  act. 
S  1041.  Agents  appointed  to  enforce 

law    regarding    opium. 
§  1642.  Penalty    for    violation, 
ji  1()4;!.  Only    registcrod    person    ciin 

possess  drugs. 
§  1044.  Special    taxes    imposed    by 

this    Act   not   inconsistent 

with   revised  statutes. 
§  1645.  Provisions   of    this    Act    not 

to     apply     to     medicinal 

pro  pa  rat  ions. 


Violations  of  Internal  Revenue  1157 

§  1646.  Collector  to  furnish  certified  §  1649.  Written    order    from    physi- 

copies  of  statements  to  be  cian,  etc.,  required  to  ob- 

filed   in  his  office.  tain   drugs. 

§  1647.  Unlawful  for  any  person  to  §  1650.  Any    person    must    pay    tax 

ship  or  deliver  drugs  with-  to     manufacture,     import, 

out    being    registered    and  etc.,     opium     and     cocoa 

paying  tax.  leaves. 

§  1648.  Must    render   true   and    cor-  §  1651.  General  revenue  act  July  20, 

rect  statement  to  collector  1868,  fraudulent  gauging, 

concerning  drugs.  etc. 


INCOME  TAX  PROVISIONS 

§  1566.  Punishment  for  violation  of  revenue  laws  and 
regulations,  (a)  Any  person  required  under  Titles  V, 
VI,  VII,  VIII,  IX,  X,  or  XII,  to  pay,  or  to  collect,  account 
for  and  pay  over  any  Tax,  as  required  by  law  or  regula- 
tions made  under  authority  thereof,  to  make  a  return  or 
supply  any  information  for  the  purpose  of  computation, 
assessments  or  collection  of  any  such  tax  who  fails  to  pay, 
collect,  or  truly  account  for  and  pay  over  any  such  tax, 
make  any  return  or  supply  any  such  information  at  the 
time  or  times  required  by  law  or  regulation,  shall  in 
addition  to  any  penalties  provided  by  law  be  subject  to 
a  penalty  of  not  more  than  $1,000. 

(b)  Any  person  who  refuses  to  pay,  collect  or  truly 
account  for,  and  pay  over  any  such  tax,  make  any  such 
return  or  supply  such  information  at  such  time  or  times 
required  by  law"  or  regulation,  or  who  wilfully  attempts  in 
any  manner  to  evade  such  tax  shall  be  guilty  of  a  misde- 
meanor and  in  addition  to  other  penalties  provided  by  law 
shall  be  fined  not  more  than  $10,000  or  imprisoned  not 
more  than  one  year,  or  both,  together  with  the  costs  of 
prosecution. 

(c)  Any  person  who  wilfully  refuses  to  pay,  collect  or 
truly  account  for  and  pay  over  any  such  tax,  shall  in 
addition  to  other  penalties  provided  by  law  be  liable  to  a 
penalty  of  the  amount  of  the  tax  evaded,  or  not  paid. 


1158  Ckimixal  Law 

collected,  or  not  accounted  for  and  paid  over,  to  be 
assessed  and  collected  in  the  same  manner  as  taxes  are 
assessed  and  collected.  Provided,  further.  That  no  pen- 
alty shall  be  assessed  under  this  subdivision  for  any 
offense  for  which  a  penalty  has  been  recovered  under 
section  3256  of  the  revised  statutes. 

(d)  The  ''Term"  person  as  used  in  this  section  in- 
cludes any  officer  or  employee  of  a  coi-poration,  or  any 
member  or  employee  of  a  partnership,  who  as  such  officer, 
employee  or  member  is  under  a  duty  to  perform  the  act 
in  respect  of  which  such  violation  occurs.^ 

§  1567.  Produce  sale  for  future  delivery  punishment  or 
delivery  without  stamped  bill — Produce,  sales  of,  on  ex- 
change. Upon  each  sale,  agreement  of  sale,  or  agreement 
to  sell  (not  including  so-called  transferred  or  scratch 
sales),  any  products  or  merchandise  at,  or  under  the  rules 
or  usages  of,  any  exchange,  or  board  of  trade,  or  other 
similar  place,  for  future  delivery,  for  each  $100  in  value 
of  the  merchandise  covered  by  said  sale  or  agreement  of 
sale  or  agreement  to  sell,  2  cents,  and  for  each  additional 
$100  or  fractional  part  thereof  in  excess  of  $100,  2  cents: 
'Provided,  That  on  every  sale  or  agreement  of  sale  or 
agreement  to  sell  as  aforesaid  there  shall  be  made  and 
delivered  by  the  seller  to  the  buyer  a  bill,  memorandum, 
agreement,  or  other  evidence  of  such  sale,  agreement  of 
sale,  or  agreement  to  sell,  to  which  tliere  shall  be  affixed  a 
lawful  stamp  or  stamps  in  value  equal  to  the  amount  of 
the  tax  on  such  sale.  Provided  further.  That  sellers  of 
commodities  described  herein,  having  paid  the  tax  pro- 
vided by  tliis  subdivision,  may  transfer  such  contracts  to 
a  ch'aring-liouse  corporation  or  association,  and  such 
transfer  shall  not  be  deemed  to  be  a  sale,  or  agreement  of 
sale,  or  an  agreement  to  sell  within  tlic  ))rovisions  of  this 

l—Act   Feb.   24,   1019,   Sec.    1308, 
40  Stat,  at  Large  1143. 


Violations  of  Internal  Revenue  1159 

Act,  provided  that  such  transfer  shall  not  vest  any  benefi- 
cial interest  in  such  clearing-house  association  but  shall 
be  made  for  the  sole  purpose  of  enabling  such  clearing- 
house association  to  adjust  and  balance  the  accounts  of 
the  members  of  such  clearing-house  association  on  their 
several  contracts.  Eveiy  such  bill,  memorandum,  or  other 
evidence  of  sale  or  agreement  to  sell  shall  show  the  date 
thereof,  the  name  of  the  seller,  the  amount  of  the  sale,  and 
the  matter  or  thing  to  which  it  refers;  and  any  person 
liable  to  pay  the  tax  as  herein  provided,  or  anyone  who 
acts  in  the  matter  as  agent  or  broker  for  such  person,  who 
makes  any  such  sale  or  agreement  of  sale,  or  agreement  to 
sell,  or  who,  in  pursuance  of  any  such  sale,  agreement  of 
sale,  or  agreement  to  sell,  or  who,  in  pursuance  of  any 
such  sale,  agreement  of  sale,  or  agreement  to  sell,  delivers 
any  such  products  or  merchandise  without  a  bill,  memo- 
randum, or  other  evidence  thereof  as  herein  required,  or 
who  delivers  such  bill,  memorandum,  or  other  evidence 
of  sale,  or  agreement  to  sell,  without  having  the  proper 
stamps  affixed  thereto,  with  intent  to  evade  the  foregoing 
provisions,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  pay  a  fine  of  not  exceeding 
$1,000  or  be  imprisoned  not  more  than  six  months,  or 
both.2 

§  1568.  Stamps  must  be  canceled.  That  whenever  an 
adhesive  stamp  is  used  for  denoting  any  tax  imposed  by 
this  title,  except  as  herein  provided,  the  person  using 
or  affixing  the  same  shall  write  or  stamp  or  cause  to  be 
written  or  stamped  thereupon  the  initials  of  his  or  its 
name,  and  the  date  upon  which  it  is  attached  or  used,  so 
that  the  same  may  not  again  be  used ;  Provided,  That  the 
Commissioner  may  prescribe  such  other  method  for  the 
cancellation  of  such  stamps  as  he  may  deem  expedient.^ 

2— See.  5,  Act  Feb.  24,  1919,  40  3— Act  Feb.  24,  1919,  Sec.  1104, 
Stat.  1136.  40  Stat,  at  Large  1134. 


1160  Criminal  Law 

§  1569.  Fraudulently  using,  cutting-,  and  attaching  and 
affixing  adhesive  stamp  or  impressions  of  stamps,  (a) 
That  whoever  fraudulently  cuts,  tears,  or  removes  from 
any  vellum,  parchment,  paper,  instrument,  writing,  pack- 
age, article,  upon  which  a  tax  is  imposed  by  this  title, 
any  adhesive  stamp,  or  the  impression  of  a  stamp  die, 
plate,  or  other  article  provided,  made  or  used,  m  pursu- 
ance with  this  title; 

(b)  Fraudulent  uses,  joins,  fixes,  or  places  to,  with  or 
upon  any  vellum,  parchment,  paper,  instrument,  writing, 
package,  or  article,  upon  w^iich  any  tax  is  imposed  by 
this  title  (1),  any  adhesive  stamp,  or  the  impression  of 
any  stamp,  die,  plate,  or  other  article,  which  has  been 
cut,  torn,  or  removed,  from  any  other  vellum,  parchment, 
paper,  instrument,  writing,  package,  or  article,  upon 
which  any  tax  is  imposed,  by  this  title;  or  (2)  any  adhe- 
sive stamp  or  the  impression  of  any  stamp,  die,  plate,  or 
other  article  of  insufficient  value;  or  (3)  any  forged  or 
counterfeit  stamp,  or  the  impression  of  a  forged  or  coun- 
terfeited stamp,  die,  plate  or  other  article; 

(c)  Wilfully  removes  or  alters  the  cancellation,  or  de- 
facing marks  of,  or  otherwise  prepares  any  adhesive 
stamp,  with  intent  to  use,  or  cause  the  same  to  be  used, 
after  it  has  already  been  used,  or  knowingly  or  wilfully 
buys,  sells  or  offers  for  sale,  or  gives  away,  any  washed 
or  restored  stamp  to  any  person  for  use,  or  knowingly 
uses  the  same; 

(d)  Knowingly  and  without  lawful  excuse  (the  bur- 
den of  proof  of  such  excuse  being  on  the  accused)  has 
any  washed  and  restored  stamp  or  altered  stamp,  which 
has  been  removed  from  any  vellum,  parchment,  paper, 
instrument,  writing,  package  or  article;  is  guilty  of  a 
misdemeanor,  and  upon  conviction  shall  be  punished  by 
a  fine  not  more  than  $1,000,  or  by  inii)risonmcnt  for  not 
more  tlian  five  years,  or  l)oth,  aiHl  any  reused,  cancelled 
or  counterfeit  stamp  and  the  vellum,  parchment,  docu- 


Violations  of  Internal  Revenue  1161 

ment,  paper,  package  or  article  upon  which  it  is  placed 
or  impressed  shall  be  forfeited  to  the  United  States.* 

§1570.  Schedule  "A"  stamp  taxes,  punishment  for 
sale,  etc.,  without  affixing  stamp.  On  all  sales,  or  agree- 
ments to  sell,  or  memoranda  of  sales  or  deliveries  of,  or 
transfers  of  legal  title  to  shares  or  certificates  of  stock 
or  of  profits  or  of  interest  in  property  or  accumula- 
tions in  any  corporation,  or  to  rights  to  subscribe  for 
or  to  receive  such  shares  or  certificates,  whether  made 
upon  or  shown  by  the  books  of  the  coi*poration,  or  by 
any  assignment  in  blank,  or  by  any  delivery,  or  by  any 
paper  or  agreement  or  memorandum  or  other  evidence 
of  transfer  or  sale,  whether  entitling  the  holder  in  any 
manner  to  the  benefit  of  such  stock,  interest,  or  rights, 
or  not,  on  each  $100  of  face  value  or  fraction  thereof, 
2  cents,  and  where  such  shares  are  without  par  or  face 
value,  the  tax  shall  be  2  cents  on  the  transfer  or  sale 
or  agreement  to  sell  on  each  share,  unless  the  actual  value 
thereof  is  in  excess  of  $100  per  share,  in  which  case 
the  tax  shall  be  2  cents  on  each  $100  of  actual  value  or 
fraction  thereof:  Provided,  That  it  is  not  intended  by 
this  title  to  impose  a  tax  upon  an  agreement  evidencing 
a  deposit  of  certificates  as  collateral  security  for  money 
loaned  thereon,  which  certificates  are  not  actually  sold, 
nor  upon  the  delivery  or  transfer  for  such  purpose  of 
certificates  so  deposited.  Provided  further.  That  the  tax 
shall  not  be  imposed  upon  deliveries  or  transfers  to  a 
broker  for  sale,  nor  upon  deliveries  or  transfers  by  a 
broker  to  a  customer  for  whom  and  upon  whose  order  he 
has  purchased  same,  but  such  deliveries  or  transfers  shall 
be  accompanied  by  a  certificate  setting  forth  the  facts: 
Provided,  further,  That  in  case  of  sale  where  the  evidence 
of  transfer  is  shown  only  by  the  books  of  the  corporation 
the  stamp  shall  be  placed  upon  such  books;  and  where  the 

4— Act  Feb.  24,  1919,  Sec.  1103, 
40  Stat,  at  Large  1134. 


1162  Ckimixal  Law 

change  of  ownership  is  by  transfer  of  the  certificate  the 
stamp  shall  be  placed  upon  the  certificate;  and  in  cases  of 
an  agreement  to  sell  or  where  the  transfer  is  by  delivery 
of  the  certificate  assigned  in  blank  there  shall  be  made 
and  delivered  by  the  seller  to  the  buyer  a  bill  or  memo- 
randum of  such  sale,  to  which  the  stamp  shall  be  affixed; 
and  ever}''  bill  or  memorandum  of  sale  or  agreement  to 
sell  before  mentioned  shall  show  the  date  thereof,  the 
name  of  the  seller,  the  amount  of  the  sale,  and  the  matter 
or  thing  to  which  it  refers.  Any  person  liable  to  pay  the 
tax  as  herein  provided,  or  anyone  who  acts  in  the  matter 
as  agent  or  broker  for  such  person,  who  makes  any  such 
sale,  or  who  in  pursuance  of  any  such  sale  delivers  any 
certificate  or  evidence  of  the  sale  of  any  stock,  interest 
or  right,  or  bill  or  memorandum  thereof,  as  herein  re- 
quired, without  having  the  proper  stamps  affixed  thereto 
with  intent  to  evade  the  foregoing  provisions,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  pay  a  fine  of  not  exceeding  $1,000,  or  be  im- 
prisoned not  more  than  six  months,  or  both.^ 

§  1571.  Statement  intended  to  make  one  believe  that 
the  price  is  part  of  tax  imposed — Punished.  That  who- 
ever in  coniicelion  with  the  sale  or  lease,  or  the  offer  of 
sale  or  release,  of  any  article,  or  for  the  purpose  of  mak- 
ing such  sale  or. lease,  makes  any  statement  written  or 
oral,  (1)  intended  or  cnlculated  to  lead  any  person  to  be- 
lieve that  any  part  of  price  at  which  such  article  is  sold  or 
leased  or  offered  for  sale  or  lease,  consists  of  a  tax  im- 
posed by  authority  of  the  United  States  or  (2)  ascribing 
any  particnlar  part  of  such  price  to  a  tax  imposed  under 
the  autlioi'ily  of  tlie  United  States,  knowing  tiiat  such 
statement  is  false  or  that  the  tax  is  not  so  great  as  th(^ 
portion  of  sucli  price  ascrilx'd  to  sneli  tax,  shall  be 
guilty   of  ;l  misdemeanor  and    nixni   conviction   thereof 

5— Sec.  4,  Act  Feb.  24,  1919,  40 
8Ut.  1135. 


Violations  of  Internal  Revenue  1163 

shall  be  punished  by  a  fine  of  not  more  than  $1,000,  or 
by  imprisonment  for  one  year,  or  both.^ 

§  1572.  Making,  signing,  or  accepting  instruments, 
without  stamps — Punishment.  That  whoever  makes, 
signg,  issues  or  accepts,  or  causes  to  be  made,  signed,  is- 
sued or  accepted,  any  instrument,  document  or  paper 
of  any  kind  or  description,  whatever,  without  the  full 
amount  of  the  tax  thereon  being  duly  paid ; 

(b)  Consigns,  or  ships,  or  causes  to  be  consigned  or 
shipped  by  parcel  post,  package  or  article  without  the 
full  amount  of  tax  being  fully  paid; 

(c)  Manufactures,  or  imports  and  sells,  or  offers  for 
sale,  or  causes  to  be  manufactured  or  imported  and  sold, 
or  offered  for  sale  any  playing  cards,  package  or  other 
article,  without  the  full  amount  of  tax  being  duly  paid; 

(d)  Makes  use  of  any  adhesive  stamps  to  denote  and 
any  tax  imposed  by  this  title,  without  canceling  or  oblit- 
erating such  stamp  as  prescribed  by  section  1104;  is  guilty 
of  a  misdemeanor  and  upon  conviction  thereof  shall  pay 
a  fine  of  not  more  than  one  hundred  dollars  for  each 
offense.'' 

§  1573.  Unlav^rful  for  any  deputy,  or  collector,  or  em- 
ployee to  divulge  information,  etc.  It  shall  be  unlawful 
for  any  collector,  deputy  collector,  or  agent,  clerk,  or 
other  officer  or  employee  of  the  United  States  to  divulge 
or  to  make  known  in  any  manner  whatever  not  provided 
by  law  to  any  person  the  operations,  style  of  work,  or 
apparatus  of  any  manufacturer  of  producer  visited  by 
him  in  the  discharge  of  his  official  duties,  or  the  amount 
or  source  of  income,  profits,  losses,  expenditures,  or  any 
particular  thereof,  set  forth  or  disclosed  in  any  income 
return,  or  to  permit  any  income  return  or  copy  thereof  or 
any  book  containing  an  abstract  or  particulars  thereof  to 

6— Act  Feb.  24,  1919,  Sec.  1319,     7— Act  Feb.  24,  1919,  Sec.  1102, 
40  Stat,  at  Large  1148.  40  Stat.  1133. 


1164  Criminal  Law 

be  seen  or  examined  by  any  person  except  as  provided 
by  law;  and  it  shall  be  unlawful  for  any  person  to  print 
or  to  publish  in  any  manner  whatever  not  provided  by  law 
any  income  return,  or  any  part  thereof  or  source  of  in- 
come, profits,  losses,  or  expenditures,  appearing  in  any 
income  return.  And  any  offense  against  the  foregoing 
provision  shall  be  a  misdemeanor  and  be  punished  by  a 
fine  not  exceeding  $1,000,  or  by  imprisonment  not  exceed- 
ing one  year,  or  both,  at  the  discretion  of  the  court;  and 
if  the  offender  to  be  an  officer  or  employee  of  the  United 
States  he  shall  be  dismissed  from  ofiice  or  discharged 
from  employment.' 

§  1574.  Punishment  for  refusing  the  inspection  of 
mine,  etc.,  under  child  labor  provision.  That  for  the 
purpose  of  this  act,  the  commissioner  or  any  other  person 
duly  authorized  by  him,  shall  have  the  authority  to 
enter,  and  inspect  at  any  time,  any  mine,  quariy,  mill, 
cannery,  w^orkshop,  factory,  or  manufacturing  establish- 
ment. The  Secretary  of  Labor,  or  any  person  duly  au- 
thorized by  him,  shall,  for  the  purpose  of  complying 
with  request,  of  the  commissioner  to  make  such  inspec- 
tion, have  like  authority,  and  shall  make  report  to  the 
commissioner  of  inspections,  made  under  such  authority 
in  such  for  as  may  be  prescribed  by  the  Commissioner 
with  the  approval  of  the  secretary  of  the  treasury. 

Any  person  who  refuses  or  obstructs  entry  or  inspec- 
tion authorized  by  this  section  shall  be  punished  by  a 
fine  of  not  more  than  $1,000,  or  by  imprisonment  for  not 
more  than  one  year,  or  both  such  fine  and  imprison- 
ment.® 

§  1575.  The  price  of  ticket  and  name  of  vendor  must 
be  stamped  on  face,  (c)  The  term  "Admission"  as 
used  in  this  title  includes  scats  and  tables,  reserved  or 

8— Act  Feb.  24,  1919,  Sec.  1317,  9— Act  Feb.  24,  1919,  Sec.   1206, 

40   Stat,   at  Largo    1146,  amending      40  Stat.   1140. 
Sec.  3167,  Rev.  Stat.,  39  Stat.  773. 


Violations  of  Internal  Revenue  1165 

otherwise,  and  other  similar  accommodations,  and  the 
charges  made  therefor. 

(d)  The  price  (exclusive  of  the  tax  to  be  paid  by  the 
person  paying  for  the  admission)  at  which  every  admis- 
sion ticket  or  card  is  sold  shall  be  conspicuously  and 
indelibly  printed,  stamped  or  written  on  the  face  or 
back,  thereof,  together  with  the  name  of  the  vendor,  if 
sold  other  than  at  the  ticket  office  of  the  theater,  opera, 
or  other  place  of  amusement.  Whoever  sells  an  admis- 
sion ticket  or  card  on  which  the  name  of  the  vendor  and 
the  price  is  not  so  printed,  stamped  and  written  thereon, 
is  guilty  of  a  misdemeanor  and  upon  conviction  thereof 
shall  be  fined  not  more  than  $100.^° 

§  1576.  Title  IV:  Act  Feb.  24,  1919,  revenue,  estate 
tax,  penalty.  That  whoever  knowingly  makes  a  false 
statement  in  any  notice,  or  return,  required  to  be  filed 
under  this  title  shall  be  liable  to  a  penalty  of  not  exceed- 
ing $5,000,  or  imprisonment  not  exceeding  one  year,  or 
both." 

§  1577.  Provisions  imposing  additional  tax  on  liquors, 
purifying  and  rectifying  within  meaning  of  §  3244  Rev. 
Stat.  That  in  addition  to  the  tax  now  imposed  by  this 
Act  on  distilled  spirits  there  shall  be  levied,  assessed, 
collected,  and  paid  a  tax  of  15  cents  on  each  proof  gallon 
and  a  proportionate  tax  at  a  like  rate  on  all  fractional 
parts  of  such  proof  gallon  on  all  distilled  spirits  or  wines 
hereafter  rectified,  purified,  or  refined  in  such  manner, 
and  on  all  mixtures  hereafter  produced  in  such  manner, 
that  the  person  so  rectifying,  purifying,  refining,  or 
mixing  the  same  is  a  rectifier  within  the  meaning  of  sec- 
tion thirty-two  hundred  and  forty-four,  Revised  Stat- 
utes, as  amended,  and  on  all  such  articles  in  the  possession 
of  the  rectifier  on  the  day  this  Act  is  passed:  Provided, 

10_Act   Feb.    24,   1919,   40    Stat.  11— Act  Feb.   24,   1919,  Sec.   410, 

112L  40   Stat.   1101. 


1166  Criminal  Law 

That  this  tax  shall  not  apply  to  gin  produced  by  the 
redistillation  of  a  pure  spirit  over  juniper  berries  and 
other  aromatics. 

"When  the  process  of  rectification  is  completed  and  the 
tax  prescribed  by  this  section  has  been  paid,  it  shall  be 
unlawful  for  the  rectifier  or  other  dealer  to  reduce  in 
proof  or  increase  in  volume  such  sports  or  wine  by  the 
addition  of  water  or  other  substance;  nothing  herein 
contained  shall,  however,  prevent  a  rectifier  from  using 
again  in  the  process  of  rectification  spirits  already  rec- 
tified and  upon  which  the  tax  has  theretofore  been  paid. 

The  tax  imposed  by  this  section  shall  not  attach  to  cor- 
dials or  liqueurs  on  which  a  tax  is  imposed  and  paid 
under  the  Act  entitled  "An  Act  to  increase  the  revenue, 
and  for  other  purposes,"  approved  September  eight, 
nineteen  hundred  and  sixteen,  nor  to  the  mixing  and 
blending  of  wines,  where  such  blending  is  for  the  sole 
purpose  of  perfecting  such  wines  according  to  commer- 
cial standards,  nor  to  blends  made  exclusively  of  two  or 
more  pure  straight  whiskies  aged  in  wood  for  a  period 
not  less  than  four  years  and  without  the  addition  of  color- 
ing or  flavoring  matter  or  any  other  substance  than  pure 
water  and  if  not  reduced  below  ninety  proof:  Provided, 
That  such  blended  whiskies  shall  be  exempt  from  tax 
under  this  section  only  when  compounded  under  the 
immediate  supervision  of  a  revenue  officer,  in  such  tanks 
and  under  such  conditions  and  supervision  as  the  Com- 
missioner of  Internal  Kevcnue,  with  the  approval  of  the 
Secretary  of  the  Treasury,  may  prescribe. 

All  distilled  spii-ils  Inxablc  uiidcr  IJiis  section  sliall  Ix' 
sn]),j('ct  to  iinifoi'iii  I'cgulatioiis  concern iiii;-  the  use  tiiercof 
in  the  manufacture,  blending,  compounding,  mixing, 
marking,  branding,  and  sale  of  whisky  and  rectified  spir- 
its, and  no  discrimination  whatsoever  shall  be  made  by 
reason  of  a  difference  in  the  character  of  the  material 
from  which  same  may  have  been  produced. 

The  business  of  a  rectifier  of  spirits  shall  be  carried  on 


Violations  of  Internal  Revenue  1167 

and  the  tax  on  rectified  spirits  shall  be  paid,  under  such 
rules,  regulation,  and  bonds  as  may  be  prescribed  by 
the  Commissioner  of  Internal  Revenue,  with  the  approval 
of  the  Secretary  of  the  Treasury. 

Any  person  violating  any  of  the  provisions  of  this 
section  shall  be  deemed  to  be  guilty  of  a  misdemeanor  and, 
upon  conviction,  shall  be  fined  not  more  than  $1,000  or 
imprisoned  not  more  than  two  years.  He  shall,  in  addi- 
tion, be  liable  to  double  the  tax  evaded  together  with  the 
tax,  to  be  collected  by  assessment  or  on  any  bond  given. ^^ 

§  1578.  For  failing  to  pay  tax  and  make  return,  etc. 
That  any  individual,  corporation,  or  partnership  required 
under  this  title  to  pay  or  collect  any  tax,  to  make  a  return 
or  to  supply  information,  who  fails  to  pay  or  collect  such 
tax,  to  make  such  return,  or  to  supply  such  information 
at  the  time  or  times  required  under  this  title,  shall  be 
liable  to  a  penalty  of  not  more  than  $1,000.  Any  individ- 
ual, corporation,  or  partnership,  or  any  officer  or  employee 
of  any  corporation  or  member  or  employee  of  a  partner- 
ship, who  willfully  refuses  to  pay  or  collect  such  tax, 
to  make  such  return,  or  to  supply  such  information  at 
the  time  or  times  required  under  this  title,  or  who  will- 
fully attempts  in  any  manner  to  defeat  or  evade  the  tax 
imposed  by  this  title,  shall  be  guilty  of  a  misdemeanor  and 
shall  be  fined  not  more  than  $10,000  or  imprisoned  for 
not  more  than  one  year,  or  both,  together  with  the  costs 
of  prosecution.^® 

§  1579.  Fraudulently  executing  documents  relating  to 
revenue  laws.  Every  person  who  simulates  or  falsely 
or  fraudulently  executes  or  signs  any  bond,  permit,  entry, 
or  other  document  required  by  the  provisions  of  this  act 
(internal-revenue  laws),  or  by  any  regulation  made  in 
pursuance   thereof,   or  who   procures    the    same   to   be 

12_Sec.  304,  Title  III,  Act  Oct.  13— Sec.    253,   Act   Feb.    6,    1919, 

3,  1917,  40  Stat.  310.  40  Stat.  1085. 


1166 


Criminal  Law 


That  this  tax  shall  not  apply  to  gin  produced  by  the 
redistillation  of  a  pure  spirit  over  juniper  berries  and 
other  aromatics. 

When  the  process  of  rectification  is  completed  and  the 
tax  prescribed  by  this  section  has  been  paid,  it  shall  be 
unlawful  for  the  rectifier  or  other  dealer  to  reduce  in 
proof  or  increase  in  volume  such  sports  or  wine  by  the 
addition  of  water  or  other  substance;  nothing  herein 
contained  shall,  however,  prevent  a  rectifier  from  using 
again  in  the  process  of  rectification  spirits  already  rec- 
tified and  upon  which  the  tax  has  theretofore  been  paid. 

The  tax  imposed  by  this  section  shall  not  attach  to  cor- 
dials or  liqueurs  on  which  a  tax  is  imposed  and  paid 
under  the  Act  entitled  "An  Act  to  increase  the  revenue, 
and  for  other  purposes,"  approved  September  eight, 
nineteen  hundred  and  sixteen,  nor  to  the  mixing  and 
blending  of  wines,  where  such  blending  is  for  the  sole 
purpose  of  perfecting  such  wines  according  to  commer- 
cial standards,  nor  to  blends  made  exclusively  of  two  or 
more  pure  straight  whiskies  aged  in  wood  for  a  period 
not  less  than  four  years  and  without  the  addition  of  color- 
ing or  flavoring  matter  or  any  other  substance  than  pure 
water  and  if  not  reduced  below  ninety  proof:  Provided, 
That  such  blended  whiskies  shall  be  exempt  from  tax 
under  this  section  only  when  compounded  under  the 
immediate  supervision  of  a  revenue  officer,  in  such  tanks 
and  under  such  conditions  and  supervision  as  the  Com- 
missioner of  Internal  Kevcnue,  with  the  approval  of  the 
Secretary  of  tlie  Treasury,  may  prescribe. 

All  distilled  spirits  Inxablc  under  this  section  shall  be 
subject  to  uniform  regulations  concerning  the  use  thereof 
in  tlic  manufacture,  blending,  compounding,  mixing, 
marking,  branding,  and  sale  of  whisky  and  rectified  spir- 
its, and  no  disci'imination  whatsoever  shall  be  made  by 
reason  of  a  difTcrence  in  the  character  of  the  material 
from  which  same  may  have  been  produced. 

'i'lic  business  of  a  rectifier  of  spirits  shall  be  carried  on 


Violations  of  Internal  Revenue  1169 

the  nonpoisonous  compounds  of  white  or  yellow  phos- 
phorus." 

§  1583.  One  thousand  dollars  fine  for  failing  to  conduct 
business  according  to  regulations.  That  if  any  manu- 
facturer of  white  phosphorus  matches,  or  any  importer 
or  exporter  of  matches,  shall  omit,  neglect,  or  refuse  to 
do  or  cause  to  be  done  any  of  the  things  required  by  law 
in  carrying  on  or  conducting  his  business,  or  shall  do 
anything  by  this  Act  prohibited,  if  there  be  no  specific 
penalty  or  punishment  imposed  by  any  other  section  of 
this  Act  for  the  neglecting,  omitting,  or  refusing  to  do, 
or  for  the  doing  or  causing  to  be  done,  the  thing  required 
or  prohibited,  he  shall  be  fined  one  thousand  dollars  for 
each  offense,  and  all  the  white  phosphorus  matches  owned 
by  him  or  in  which  he  has  any  interest  as  owner  shall  be 
forfeited  to  the  United  States." 

§  1584.  Penalty  for  failing  to  affix,  etc.,  stamp  accord- 
ing to  government  regulations.  That  every  manufacturer 
of  matches  shall  mark,  brand,  affix,  stamp,  or  print,  in 
such  manner  the  Commissioner  of  Internal  Revenue  shall 
prescribe,  on  every  package  of  white  phosphorus  matches 
manufactured,  sold,  or  removed  by  him,  the  factoiy  num- 
ber required  under  section  two  of  this  Act.  Every  such 
manufacturer  who  omits  to  mark,  brand,  affix,  stamp,  or 
print  such  factory  number  on  such  package  shall  be  fined 
not  more  than  fifty  dollars  for  each  package  in  respect 
of  which  such  offense  is  committed.  Every  manufacturer 
of  white  phosphorus  matches  shall  securely  affix  by  past- 
ing on  each  original  package  containing  stamped  pack- 
ages of  white  phosphorus  matches  manufactured  by  him 
a  label,  on  which  shall  be  printed,  besides  the  number  of 
the  manufactoiy  and  the  district  in  which  it  is  situated, 
these  words:  ''Notice. — The  manufacturer  of  the  white 

17_Sec.  1,  Act  Apr.  9,  1912,  37  18— Sec.  13,  Act  Apr.  9,  1912,  37 

Stat.  81.  Stat.  83. 

C.  L.— 74 


1170  Criminal  Law 

phosphorus  matches  herein  contained  has  complied  with 
all  the  requirements  of  law.  Every  person  is  cautioned 
not  to  use  again  the  stamps  on  the  packages  herein  con- 
tained under  the  penalty  provided  by  law  in  such  cases." 
Ever}''  manufacturer  of  white  phosphorus  matches  who 
neglects  to  affix  such  label  to  any  original  package  con- 
taining stamped  packages  of  white  phosphorus  matches 
made  by  him  or  sold  or  removed  by  or  for  him,  and  every 
person  who  removes  any  such  label  so  affixed  from  any 
such  original  package,  shall  be  fined  not  more  than  fifty 
dollars  for  each  package  in  respect  of  which  such  offense 
is  committed.^® 

§  1585.  Collector  shall  furnish  stamps  to  be  sold  manu- 
facturer. That  the  Commissioner  of  Internal  Revenue 
shall  cause  to  be  prepared  suitable  and  special  stamps  for 
payment  of  the  tax  on  white  phosphorus  matches  pro- 
vided for  by  this  Act.  Such  stamps  shall  be  furnished 
to  collectors,  who  shall  sell  the  same  only  to  duly  qualified 
manufacturers.  Every  collector  shall  keep  an  account 
of  the  number  and  denominate  values  of  the  stamps  sold 
by  him  to  each  manufacturer.  All  the  provisions  and  pen- 
alties of  existing  laws  governing  tlie  engraving,  issuing, 
sale,  affixing,  cancellation,  accountability,  effacement,  de- 
struction, and  forgery  of  stamps  provided  for  internal 
revenue  are  hereby  made  to  apply  to  stamps  provided 
for  by  this  Act.''" 

§  1586.  Packag-es  of  matches  found  without  stamps 
shall  be  forfeited  to  the  U.  S.  That  every  manuracturor 
(»r  wliile  j»li()s])li()rus  matches  who  defrauds  or  attempts 
to  defraud  Ujo  United  Slates  of  the  tax  imposed  by  this 
Act,  or  any  pait  tlici-cof,  shall  I'orrcit  the  factory  and 
inaiiur.Mcluriiig  :ii)i);ii-;itus  used  by  him  and  all  the  white 

iy_Sfc.   113,  Act  Apr.  '.),  191J,  37  20— Sec.  8,  Act  Apr.   D,   I'Jli:,  37 

Stnt.  8.3.  Stat.  82. 


Violations  of  Internal  Revenue  1171 

phosphorus  matches  and  all  raw  material  for  the  produc- 
tion of  white  phosphorus  matches  found  in  the  factory 
and  on  the  factory  premises,  or  owned  by  him,  and  shall 
be  fined  not  more  than  five  thousand  dollars  or  be  im- 
prisoned not  more  than  three  years,  or  both.  All  pack- 
ages of  white  phosphorus  matches  subject  to  tax  under 
this  Act  that  shall  be  found  without  stamps  as  herein  pro- 
vided shall  be  forfeited  to  the  United  States.^^ 

§  1587.  Penalty  for  defacing  stamps  on  matches.  That 
every  person  who  removes,  defaces,  or  causes  or  permits 
or  suffers  the  removal  or  defacement  of  any  such  stamp, 
or  who  uses  any  stamp  or  any  package  to  which  an/ 
stamp  is  affixed  to  cover  any  other  white  phosphorus 
matches  than  those  originally  contained  in  such  package 
with  such  stamp  when  first  used,  to  evade  the  tax  imposed 
by  this  Act,  shall  for  every  such  package  in  respect  to 
which  any  such  offense  is  committed  be  fined  fifty  dol- 
lars, and  all  such  matches  shall  also  be  forfeited.^'' 

§  1588.  Penalty  for  insufficient  stamps.  That  every 
person  who  affixes  a  stamp  on  any  package  of  white 
phosphorus  matches  denoting  a  less  amount  of  tax  than 
that  required  by  law  shall  for  each  offense  be  fined  not 
more  than  one  thousand  dollars  or  be  imprisoned  not 
more  than  two  years,  or  both.^^ 

§  1589.  Penalty  for  failing  to  use  stamps  on  matches. 
That  every  manufacturer  of  matches  who  manufactures, 
sells,  removes,  distributes,  or  offers  to  sell  or  distribute 
white  phosphorus  matches  without  there  being  affixed 
thereto  an  adhesive  stamp,  denoting  the  tax  required  by 

21— Sec.   7,  Act  Apr.   9,  1912,  37  23— Sec.   5,  Act  Apr.   9,   1912,  37 

Stat.  82.  Stat.  82. 

22— Sec.   6,  Act  Apr.  9,   1912,  37 
Stat,  82. 


1172  Ckimixal  Law 

this  Act,  effectually  canceled  as  provided  by  the  preced- 
ing section,  shall  for  each  offense  be  fined  not  more  than 
one  thousand  dollars  and  be  imprisoned  not  more  than 
two  years.  Every  manufacturer  of  matches  who,  to 
evade  the  tax  chargeable  thereon  or  any  part  thereof 
hides  or  conceals,  or  causes  to  be  hidden  or  concealed, 
or  removes  or  conveys  away,  or  deposits  or  causes  to  be 
removed  or  conveyed  away  from  or  deposited  in  any  place 
any  white  phosphorus  matches,  shall  for  each  offense  be 
fined  not  more  than  one  thousand  dollars  and  be  impris- 
oned not  more  than  two  years,  or  both,  and  aU  such 
matches  shall  be  forfeited.^* 

§  1590.  Manner  of  packing  matches,  must  be  stamped. 
That  all  white  phosphorus  matches  shall  be  packed  by 
the  manufacturer  thereof  in  packages  containing  one  hun- 
dred, two  hundred,  five  hundred,  one  thousand,  or  one 
thousand  five  hundred  matches  each,  which  shall  then 
be  packed  by  the  manufacturer  in  packages  containing 
not  less  than  fourteen  thousand  four  hundred  matches, 
and  upon  white  phosphorus  matches  manufactured,  sold, 
or  removed  there  shall  be  levied  and  collected  a  tax  at 
the  rate  of  two  cents  per  one  hundred  matches,  which 
shall  be  represented  by  adhesive  stamps,  and  this  tax 
shall  be  paid  by  the  manufacturer  thereof,  who  shall  aflix 
to  every  package  containing  one  hundred,  two  hundred, 
five  hundred,  one  thousand,  or  one  thousand  five  hundred 
niatf'lies  such  stamp  of  the  required  value  and  shall  place 
thereon  the  initials  of  his  name  and  the  date  on  which 
such  stamp  is  affixed,  so  that  the  same  may  not  again  be 
used.  Every  person  who  fraudiilciilly  makes  use  of  an 
adhesive  stamp  to  denote  any  tax  imposed  by  this  section 
without  so  effectually  canceling  such  stamp  shall  forfeit 
the  sum  of  fifty  dollars  for  every  slain]»  in  respect  to 
whieh  such  offense  is  connnitted.'^^ 

24— S.-C.   ■»,    Act   Apr.  9,   1912,   37  LT)— Hoc.   ,'1,   Act   Apr.   9,    191L',   37 

Stat.     82.  Stilt.  81. 


Violations  of  Internal  Revenue  1173 

§  1591.  Penalty  for  match  manufacturer  who  fails  to 
register.  That  eveiy  manufacturer  of  white  phosphorus 
matches  shall  register  with  the  collector  of  internal  rev- 
enue of  the  district  his  name  or  style,  phice  of  manu- 
factory, and  the  place  where  such  business  is  to  be  car- 
ried on;  and  a  failure  to  register  as  herein  provided  and 
required  shall  subject  such  person  to  a  penalty  of  not 
more  than  five  hundred  dollars.  Every  manufacturer  of 
white  phosphorus  matches  shall  file  with  the  collector 
of  internal  revenue  of  the  district  in  which  his  manu- 
factory is  located,  such  notices,  inventories,  and  bonds, 
shall  keep  such  books  and  render  such  returns  in  relation 
to  the  business,  shall  put  up  such  signs  and  affix  such 
number  to  his  factory,  and  conduct  his  business  under 
such  surveillance  of  officers  and  agents  as  the  Commis- 
sioner of  Internal  Revenue,  with  the  approval  of  the 
Secretary  of  the  Treasury,  may,  by  regulation,  require. 
The  bond  required  of  such  manufacturer  shall  be  with 
sureties  satisfactory  to  the  collector  of  internal  revenue 
and  in  the  penal  sum  of  not  less  than  one  thousand  dol- 
lars; and  the  sum  of  said  bond  may  be  increased  from 
time  to  time  and  additional  sureties  required  at  the  dis- 
cretion of  the  collection  or  under  instructions  of  the  Com- 
missioner of  Internal  Revenue.^^ 

§  1592.  Tobacco  manufacturer  must  secure  certificate 
showing-  machines,  etc.,  punishment  for  failure.  Every 
person,  before  commencing,  or,  if  he  has  already  com- 
menced, be'fore  continuing,  the  manufacture  of  tobacco  or 
snuff,  shall  furnish,  without  previous  demand  therefor, 
to  the  collector  of  the  district  where  the  manufacture  is  to 
be  carried  on,  a  statement  in  duplicate,  subscribed  under 
oath,  setting  forth  the  place,  and  if  in  a  city,  the  street 
and  number  of  cutting-machines,  presses,  snuif  mills,  hand 
mills,  or  other  machines;  the  name,  kind,  and  quality  of 

26— Sec.  2,  Act  April  9,  1912,  37 
Stat.   81. 


ll<-i  Ckimix.^l  Law 

the  article  manufactured  or  proposed  to  be  manufactured; 
and  when  the  same  is  manufactured  by  him  as  agent  for 
any  other  person,  or  to  be  sold  and  delivered  to  any  other 
person  under  a  special  contract,  the  name  and  residence 
and  business  or  occupation  of  the  person  for  whom  the 
said  article  is  to  be  manufactured,  or  to  whom  it  is  to  be 
delivered ;  and  he  shall  give  a  bond,  to  be  approved  by  the 
collector  of  the  district,  in  the  sum  of  not  less  than  two 
thousand  nor  more  than  twenty  thousand  dollars,  to  be 
fixed  by  the  collector  of  the  district,  according  to  the 
quantum  of  business  proposed  to  be  done  by  the  manu- 
facturer, with  right  of  appeal  by  the  manufacturer  to  the 
Commissioner  of  Internal  Revenue  in  respect  to  the 
amount  of  said  bond,  conditioned  that  he  shall  not  engage 
in  any  attempt,  by  himself  or  by  collusion  with  others,  to 
defraud  the  government  of  any  tax  on  his  manufactures; 
that  he  shall  render  truly  and  completely  all  the  returns, 
statements,  and  inventories  prescribed  by  law  or  regula- 
tions that  whenever  he  adds  to  tlie  number  of  cutting-ma- 
chines, presses,  snuff  mills,  hand  mills,  or  other  mills  or 
machines  as  aforesaid,  he  shall  immediately  give  notice 
thereof  to  the  collector  of  the  district;  that  he  shall  stamp, 
in  accordance  with  law,  all  tobacco  and  snuff  manu- 
factured by  him  before  he  removes  any  part  thereof  from 
the  place  of  nninufacturc;  that  he  shall  not  knowingly 
sell,  purchase,  expose,  or  receive  for  sale,  any  manu- 
factured tobacco  or  snuff  which  has  not  been  stamped  as 
required  by  law;  and  that  he  sliall  comply  witli  all  the 
reciuiremcnts  of  law  relating  to  the  manufacture  of  to- 
bacco or  snulT.  Additional  snrcties  may  be  required  by 
the  collector  from  time  to  time.  And  every  manufacturer 
sliall  obtain  a  certificate  from  the  collector  of  the  district, 
wlii>  is  hereby  diiccted  to  issue  the  same,  setting  forth  the 
kind  and  number  of  machines,  presses,  snuff  mills,  hand 
mills,  or  other  mills  and  machines  as  aforesaid;  which 
certificate  shall  be  posted  in  a  conspicuous  place  within 
the  manufactory.    And  eveiy  tobacco-manufacturer  who 


Violations  of  Internal  Revenue  1175 

neglects  or  refuses  to  obtain  such  certificate,  or  to  keep 
the  same  posted  as  hereinbefore  provided,  shall  be  fined 
not  less  than  one  hundred  dollars,  nor  more  than  five  hun- 
dred. And  every  person  who  manufactures  tobacco  or 
snuff  of  any  description  without  first  giving  bond,  as 
herein  required,  shall  be  fined  not  less  than  one  thousand 
dollars  nor  more  than  five  thousand  dollars,  and  impris- 
oned for  not  less  than  one  nor  more  than  five  years." 

§  1593.  Manufacturer  of  tobacco  must  post  sign  on 
building".  Every  manufacturer  of  tobacco  and  snuff  shall 
place  and  keep  on  the  side  or  end  of  the  building  wherein 
his  business  is  carried  on,  so  that  it  can  be  distinctly  seen, 
a  sign,  with  letters  thereon  not  less  than  three  inches  in 
length,  painted  in  oil-colors  or  gilded,  giving  his  full 
name  and  business.  And  eveiy  person  who  neglects  to 
comply  with  the  requirements  of  this  section  shall  be  fined 
not  less  than  one  hundred  dollars"  or  more  than  five  hun- 
dred dollars.^® 

§  1594.  A  tobacco  peddler  must  exhibit  certificate  on 
demand  of  revenue  agent,  penalty  for  failure.  Eveiy 
person  who  is  found  peddling  tobacco,  snuff,  or  cigars, 
without  having  given  the  bond,  or  without  having  pre- 
viously obtained  the  collector's  certificate  as  herein  pro- 
vided, or  who  sells  tobacco,  snuff,  or  cigars  otherwise  than 
in  original  and  full  packages  as  put  up  by  the  manu- 
facturer; or  who  has  in  his  possession  any  internal-rev- 
enue stamp  which  has  been  removed  from  any  box  or 
other  package  of  tobacco,  snuff,  or  cigars,  or  any  empty 
or  partially  emptied  box  or  other  package  which  has  been 
used  for  tobacco,  snuff,  or  cigars,  the  stamp  or  stamps  on 
which  have  not  been  destroyed-;  or  who  fails  to  have 
affixed  to  his  wagon,  in  a  conspicuous  place,  a  sign, 
painted  in  oil-colors,  or  gilded,  giving  his  full  name,  busi- 

27— Act  March  1,   1879,   Sec.   14,  28— Act   July   20,   18G8,   15   Stat. 

20   Stat.   344.  154. 


1176  Criminal  Law 

ness,  and  collection-district,  shall  for  each  snch  offense, 
be  fined  not  less  than  one  hundred  dollars  nor  more  than 
five  hundred  dollars,  or  imprisoned  not  less  than  six 
months  nor  more  than  one  year,  or  both,  at  the  discretion 
of  the  court.  And  any  collector  or  deputy  collector  find- 
ing such  peddler  in  the  act  of  offending  as  to  either  of  the 
offenses  mentioned  in  this  section,  may  seize  the  horse  or 
horses,  mule  or  mules,  wagon  and  contents,  or  pack, 
bundle,  or  basket,  of  any  such  person;  and  the  collector 
shall  thereupon  proceed  upon  such  seizure  as  provided  in 
section  thirty-three  hundred  and  eighty-three.^^ 

§  1596.  Relanding  tobacco,  snuff,  or  cigars  with  intent 
to  defraud.  Manufactured  tobacco,  snuff,  and  cigars  in- 
tended for  immediate  exportation  may,  after  being  prop- 
erly inspected,  marked  and  branded,  bo  removed  from  the 
manufactory  in  bond  without  having  affixed  thereto  the 
stamps  indicating  the  payment  of  the  tax  thereon.  The 
removal  of  such  tobacco,  snuff,  and  cigars  from  the  manu- 
factory shall  be  made  under  such  regulations,  and  after 
making  such  entries,  and  executing  and  filing  with  the 
collector  of  the  district  from  which  the  removal  is  to  be 
made  such  bonds  and  bills  of  lading,  and  giving  such 
other  additional  security  as  may  be  prescribed  by  the 
Commissioner  of  Internal  Revenue  and  approved  by  the 
Secretary  of  the  Treasury.  There  shall  be  affixed  to  each 
package  of  tobacco,  snuff,  and  cigars  intended  for  innne- 
diate  export,  before  it  is  removed  from  the  manufactory, 
an  engraved  stamp  indicative  of  such  intention.  Such 
stamps  shall  be  provided  and  furnished  to  the  several  col- 
lectors as  in  the  case  of  other  stamps,  and  charged  to  them 
and  accounted  in  tlie  same  manner  and  for  the  expense 
attciuliiig  tlic  j)i'ovi(rnig  and  aflixing  llicreof,  ten  cents  for 
cacli  package  so  slainpcd  shall  \k\  paid  to  the  colloclor, 
on  making  the  entry  for  such  transportation.    When  the 

1.9_\,.,    f,,.,      ]     -1890,    26    Stat, 
r.lft. 


Violations  of  Internal  Revenue  1177 

manufacturer  has  made  the  proper  entries,  filed  the  bonds 
and  otherwise  complied  with  all  the  requirements  of 
the  law  and  regulations  as  herein  provided,  the  collector 
shall  issue  to  him  a  permit  for  the  removal,  accurately 
describing  the  tobacco,  snuff,  and  cigars  to  be  shipped, 
the  number  and  kind  of  packages,  the  number  of  pounds, 
the  amount  of  tax,  the  marks  and  brands,  the  State  and 
collection  district  from  which  the  same  are  shipped,  the 
number  of  the  manufactory  and  the  manufacturer's  name,- 
the  port  from  which  the  said  tobacco,  snuff,  and  cigars  are 
to  be  exported,  and  the  route  or  routes  over  which  the 
same  are  to  be  sent  to  the  port  of  shipment.  Upon  the 
presentation  to  the  collector  of  internal  revenue  of  a  de- 
tailed report  from  the  inspectors  of  customs,  and  a  cer- 
tificate of  the  collector  of  customs  at  the  port  from  which 
the  goods  are  to  be  exported  that  the  goods  removed  from 
the  manufactory  under  bond  and  described  in  the  permit 
of  the  collector  of  internal  revenue  have  been  received  by 
the  said  collector  of  customs,  and  that  the  said  goods  were 
duly  laden  on  board  of  a  foreign-bound  vessel,  naming  the 
vessel,  and  that  the  said  merchandise  was  entered  on  the 
outward  manifest  of  said  vessel,  and  that  the  said  vessel 
and  cargo  were  duly  cleared  from  said  port,  and  on  the 
payment  of  the  tax  or  deficiency,  if  any,  the  bonds,  which 
have  been  given  or  shall  hereafter  be  required  to  be  given 
under  the  provisions  of  this  section  shall  be  canceled. 
But  when  the  goods  are  exported  to  an  adjacent  foreign 
territory,  by  vessel  or  otherwise,  said  bonds  shall  be  can- 
celed upon  such  proofs  of  exportation  as  may  be  pre- 
scribed by  the  Commissioner  of  Internal  Revenue,  with 
the  approval  of  the  Secretary  of  the  Treasury. 

Every  person  who,  with  the  intent  to  defraud  the 
revenue  laws  of  the  United  States,  relands  or  causes 
to  be  relanded  within  the  jurisdiction  of  the  United 
States,  any  manufactured  tobacco,  snuff,  or  cigars 
which  have  been  shipped  for  exportation  under  the 
provisions  of  this  Act,  without  properly  entering  such 


1178  Criminal  Law 

tobacco,  snuff,  or  cigars  at  tlie  custom-house,  and  paving 
the  proper  customs  and  internal-revenue  tax  thereon,  or 
who  receives  such  relanded  tobacco,  snuif,  or  cigars,  and 
every  person  who  aids  or  abets  in  such  relanding  or  receiv- 
ing such  tobacco,  snuff  or  cigars,  shall,  on  conviction,  be 
fined  not  exceeding  five  thousand  dollars,  or  imprisoned 
not  more  than  three  years ;  and  all  tobacco,  snuff,  or  cigars 
so  relanded  shall  be  forfeited  to  the  United  States.^" 

§  1597.  Manufacturer  of  cigars  failing  to  give  bond, 
penalty.  And  every  person  who  manufactures  cigars  ol; 
any  description,  without  first  giving  bond  as  herein  re- 
quired, shall  be  fined  not  less  than  one  hundred  dollars, 
nor  more  than  five  thousand  dollars,  and  imprisoned  not 
less  than  three  months  nor  more  than  five  years.  Ciga- 
rettes and  cheroots  shall  be  held  to  be  cigars  under  the 
meaning  of  this  chapter.^^ 

§  1598.  Manufacturer  must  keep  sign  posted.  Every 
cigar  manufacturer  shall  place  and  keep  on  the  side  or 
end  of  the  building  within  which  his  business  is  carried 
on,  so  that  it  can  be  distinctly  seen,  a  sign,  with  letters 
thereon  not  less  than  three  inches  in  length,  painted  in  oil- 
colors  or  gilded,  giving  his  full  name  and  business.  Any 
person  neglecting  to  comply  with  the  requirements  of  this 
section  shall,  on  conviction,  be  fined  not  less  tlian  one  hun- 
dred dollars  nor  more  than  five  hundred  dollars.^'^ 

§  1599.  Willful  neglect  in  making  true  inventory  and 
abstracts;  by  manufacturer  of  cigars.  I^lvery  jierson  now 
or  hereal'ter  engaged  iii  the  nianufaclnre  of  cigars  sliall 
make  and  deliver  to  tlie  collector  of  llie  district  a  true 
inventory,  in  such  form  ;is  nmy  be  prescribed  by  the  Com- 

r-O—Act    .I:m.    l.'J,    1883,    22    Stat.  ;t2— Act    .July    21),    ]8C8,    15    Stat. 

402.  ICO. 

31_A<-t    Oct.    1,    1890,    26    Stnt. 
620. 


Violations  or  Inteexal  Revenue  1179 

missioner  of  Internal  Revenue,  of  the  quantity  of  leaf 
tobacco,  cigars,  stems,  scraps,  clippings,  and  waste,  and 
of  the  number  of  cigar-boxes  and  the  capacity  of  each  box, 
held  or  owned  by  him  on  the  first  day  of  January  of  each 
year,  or  at  the  time  of  commencing  and  at  the  time  of 
concluding  business,  if  before  or  after  the  first  of  January; 
setting  forth  what  portion  and  kinds  of  said  goods  were 
manufactured  or  produced  by  him,  and  what  were  pur- 
chased from  others,  and  shall  verify  said  inventory  by  his 
oath  indorsed  thereon.  The  collector  shall  make  personal 
examination  of  the  stock  sufficient  to  satisfy  himself  as 
to  the  correctness  of  the  inventory;  and  shall  verify  the 
fact  of  such  examination  by  oath  to  be  indorsed  on  the 
inventory.  Every  such  person  shall  also  enter  daily  in  a 
book,  the  form  of  which  shall  be  prescribed  by  the  Com- 
missioner of  Internal  Revenue,  an  accurate  account  of  all 
the  articles  aforesaid  purchased  by  him,  the  quantity  of 
leaf-tobacco,  cigars,  stems,  or  cigar-boxes,  of  whatever 
description,  manufactured,  sold,  consumed,  or  removed 
for  consumption  or  sale,  or  removed  from  the  place  of 
manufacture;  and  shall,  on  or  before  the  tenth  day  of 
each  and  every  month,  furnish  to  the  collector  of  the  dis- 
trict a  true  and  accurate  abstract  from  such  book,  verified 
by  his  oath,  of  all  such  purchases,  sales,  and  removals 
made  during  the  month  next  preceding.  In  case  of  re- 
fusal or  willful  neglect  to  deliver  the  inventory  or  keep 
the  account,  or  furnish  the  abstract  aforesaid,  he  shall 
be  fined  not  less  than  five  hundred  dollars  nor  more  than 
five  thousand  dollars,  and  imprisoned  not  less  than  six 
months  nor  more  than  three  years.^^ 

§  1600.  Cigars  not  weighing  more  than  three  pounds 
per  thousand  must  be  packed  in  boxes  not  used  before. 

All  cigars  shall  be  packed  in  boxes  not  before  used  for 
that  purpose  containing,  respectively,  five,  ten,  twelve, 

33— E.    S.    3390,    Act    July    20, 
1868,  15  Stat.  161. 


1180  Criminal  Law 

thirteen,  twenty-five,  fifty,  one  hundred,  two  hundred,  two 
hundred  and  fifty,  or  five  hundred  cigars  each;  and  every 
person  who  sells,  or  offers  for  sale,  or  delivers,  or  offers 
to  deliver,  any  cigars  in  any  other  form  than  in  new  boxes 
as  above  described,  or  who  packs  in  any  box  any  cigars  in 
excess  of  or  less  than  the  number  provided  by  law  to  be 
put  in  each  box,  respectively,  or  who  falsely  brands  any 
box,  or  affixes  a  stamp  on  any  box  denoting  a  less  amount 
of  tax  than  that  required  by  law,  shall  be  fined  for  each 
offense  not  more  than  one  thousand  dollars,  and  be  impris- 
oned not  more  than  two  years :  Provided,  That  nothing  in 
this  section  shall  be  construed  as  preventing  the  sale  of 
cigars  at  retail  by  retail  dealers  from  boxes  packed, 
stamped,  and  branded  in  the  manner  prescribed  by  law: 
And  provided  further,  That  every  manufacturer  of  ciga- 
rettes shall  put  up  all  the  cigarettes  that  he  manufactures 
or  has  manufactured  for  him  and  sells  or  removes  for  con- 
sumption or  use  in  packages  or  parcels  containing  five, 
eight,  ten,  fifteen,  twenty,  fifty,  or  one  hundred  cigarettes 
each,  and  shall  securely  affix  to  each  of  said  packages  or 
parcels  a  suitable  stamp  denoting  the  tax  thereon,  and 
shall  properly  cancel  the  same  prior  to  such  sale  or  re- 
moval for  consumption  or  use,  under  such  regulations  as 
the  Commissioner  of  Internal  Revenue  shall  prescribe; 
and  all  cigarettes  imported  from  a  foreign  country  shall 
be  packed,  stamped,  and  the  stamps  canceled  in  like  man- 
ner, in  addition  to  the  import  stamp  indicating  inspection 
of  the  custom-house  before  they  are  withdrawn  there- 
from.^* 

§  1601.  Penalty  for  failure  to  put  notice  on  each  box 
cigars.  Every  maiiul'actni'cr  of  cigars  shall  securely  allix, 
by  pasting  on  each  box  containing  cigars  manufactured 

34 — U.  S.  3392,  Act  Aug.  5,  1909, 
3«  Htnt.  109  and  110. 


Violations  of  Internal  Revenue  1181 

by  or  for  him,  a  label,  on  which  shall  be  printed,  besides 
the  number  of  the  manufactory  and  the  district  and  State 
in  which  it  is  situated,  these  words: 

Notice. — The  manufacturer  of  the  cigars  herein  con- 
tained has  complied  with  all  the  requirements  of  law. 
Every  person  is  cautioned  not  to  use  either  this  box  for 
cigars  again,  or  the  stamp  thereon  again,  nor  to  remove 
the  contents  of  this  box  without  destroying  said  stamp, 
under  the  penalties  provided  by  law  in  such  cases. 

Every  manufacturer  of  cigars  who  neglects  to  affix  such 
label  to  any  box  containing  cigars  made  by  or  for  him; 
or  sold  or  offered  for  sale  by  or  for  him,  and  every  person 
who  removes  any  such  label,  so  affixed,  from  any  such 
box,  shall  be  fined  fifty  dollars  for  each  box  in  respect  to 
which  such  offense  is  committed.^^ 

§  1602.  Cigars  must  not  be  removed  from  manufactory 
without  boxing.  Whenever  any  cigars  are  removed  from 
any  manuf  actoiy,  or  place  where  cigars  are  made,  without 
being  packed  in  boxes  as  required  by  the  provisions  of 
this  chapter,  or  without  the  proper  stamp  thereon  denot- 
ing the  tax,  or  without  stamping,  indenting,  burning,  or 
impressing  into  each  box,  in  a  legible  and  durable  manner, 
the  number  of  the  cigars  contained  therein,  the  number  of 
the  manufactoiy,  and  the  number  of  the  district  and  the 
State,  or  without  properly  affixing  thereon  and  canceling 
the  stamp  denoting  the  tax  on  the  same,  or  are  sold,  or 
offered  for  sale,  not  properly  boxed  and  stamped,  they 
shall  be  forfeited  to  the  United  States.  And  every  person 
who  commits  any  of  the  above-described  offenses  shall  be 
fined  for  each  such  offense  not  less  than  one  hundred  dol- 
lars nor  more  than  one  thousand  dollars,  and  imprisoned 
not  less  than  six  months  nor  more  than  two  years.  And 
every  person  who  packs  cigars  in  any  box  bearing  a  false 

35— E.    S.    3393,    Act    March    1, 
1879,  20  Stat.  348. 


1182  Criminal  Law 

or  fraudulent  or  counterfeit  stamp,  or  who  affixes  to  any 
box  containing  cigars  a  stamp  in  the  similitude  or  likeness 
of  any  stamp  required  to  be  used  by  the  laws  of  the  United 
States,  whether  the  same  be  a  customs  or  internal-revenue 
stamp;  or  who  buys,  receives,  or  has  in  his  possession  any 
cigars  on  which  the  tax  to  which  they  are  liable  have  not 
been  paid,  or  who  removes,  or  causes  to  be  removed,  from 
any  box  any  stamp  denoting  the  tax  on  cigars,  with  intent 
to  use  the  same,  or  who  uses,  or  permits  any  other  person 
to  use,  any  stamp  so  removed,  or  who  receives,  buys,  sells, 
gives  away,  or  has  in  his  possession  any  stamp  so  re- 
moved, or  who  makes  any  other  fraudulent  use  of  any 
stamp  intended  for  cigars,  or  who  removes  from  the  place 
of  manufacture  any  cigars  not  properly  boxed  and 
stamped  as  required  by  law,  shall  be  deemed  guilty  of  a 
felony,  and  shall  be  fined  not  less  than  one  hundred  dollars 
nor  more  than  one  thousand  dollars,  and  imprisoned  not 
less  than  six  months  nor  more  than  three  years:  Provided, 
That  cigars  packed  expressly  for  export,  and  which  shall 
be  exported  to  a  foreign  country  under  the  restrictions 
and  regulations  prescribed  by  the  Commissioner  of  Inter- 
nal Eevenue,  and  approved  by  the  Secretary  of  the  Treas- 
ury, shall  be  exempt  from  the  provisions  of  this  section, 
and  also  from  the  provision  of  section  thirty-three  hun- 
dred and  ninety-three  of  the  Revised  Statutes,  requiring 
a  hil)ol  to  bo  affixed  to  each  box.^® 

i<  1603.  The  actual  maker  of  cig-ars  upon  commission 
contract  must  affix  stamp  before  the  same  are  removed. 

The  absence  of  the  ])roper  rovenuc-stani])  on  any  box  of 
cigars  sold,  or  offered  for  sale,  or  kcjil  for  sah\  sliall  be 
notice  to  jdl  persons  that  the  tax  has  not  Ixmmi  ])ai(l  there- 
on, and  sli;ill  Ix'  pi'ima-facie  evidence  of  the  non-payment 
tlici-cof,  and  sncli  cigars  sliall  bo  forfeited  to  tho  TnitcHl 
>Stat<'s.37 

30— R.  8.  3:507,  Art  Mil  nil   I,  lH7tt.  .',7-U.    S.    .-{.'{'.tH,    .Inly    20,    1H68, 

20   Stnt.   34R.  IH   Rt.at.   103. 


Violations  of  Internal  Revenue  1183 

§  1604.  Cig-ars  imported  must  pay  import  duties  and 
tax  required  of  manufacturer  in  United  States.  All  cigars 
imported  from  foreign  countries  shall  pay,  in  addition  to 
the  import  duties  imposed  thereon,  the  tax  prescribed  by 
law  for  cigars  manufactured  in  the  United  States,  and 
shall  have  the  same  stamps  affixed.  The  stamps  shall  be 
affixed  and  canceled  by  the  owner  or  importer  of  the  cigars 
while  they  are  in  the  custody  of  the  proper  custom-house 
officers,  and  the  cigars  shall  not  pass  out  of  the  custody  of 
such  officers  until  the  stamps  have  been  so  affixed  and  can- 
celed, but  shall  be  put  up  in  boxes  containing  quantities 
as  prescribed  in  this  chapter  for  cigars  manufactured  in 
the  United  States,  before  the  stamps  are  affixed.  And  the 
owner  or  importer  of  such  cigars  shall  be  liable  to  all  the 
penal  provisions  of  this  Title  prescribed  for  manufac- 
turers of  cigars  manufactured  in  the  United  States. 
Whenever  it  is  necessary  to  take  any  cigars  so  imported 
to  any  place  other  than  the  public  stores  of  the  United 
States,  for  the  purpose  of  affixing  and  canceling  such 
stamps,  the  collector  of  customs  of  the  port  where  such 
cigars  are  entered  shall  designate  a  bonded  warehouse  to 
which  they  shall  be  taken,  under  the  control  of  such  cus- 
toms officer  as  such  collector  may  direct.  And  every 
officer  of  customs  who  permits  any  such  cigars  to  pass  out 
of  his  custody  or  control,  without  compliance  by  the  owner 
or  importer  thereof  with  the  provisions  of  this  section 
relating  thereto,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall  be  fined  not  less  than  one  thousand  dollars  nor 
more  than  five  thousand  dollars,  and  imprisoned  not  less 
than  six  months  nor  more  than  three  years.'' 

§  1605.  Imported  cigars  must  be  properly  packed  and 
stamped  before  sale.  Every  person  who  sells  or  offers  for 
sale  any  imported  cigars,  or  cigars  purporting  or  claimed 
to  have  been  imported,   not  put  up   in  packages   and 

38— E.  S.  3402,  Act  July  20,  1868, 
15  Stat.  163. 


1184  Criminal  Law 

stamped  as  provided  by  this  chapter,  shall  be  fined  not 
less  than  five  hundred  dollars  nor  more  than  five  thousand 
dollars,  and  be  imprisoned  not  less  than  six  months  nor 
more  than  two  years.^^ 

§  1606.  Penalty  for  purchasing  or  receiving-  unbranded 
and  unstamped  cigars.  Every  person  who  purchases  or 
receives  for  sale  any  cigars  which  have  not  been  branded 
or  stamped  according  to  law,  shall  be  liable  to  a  penalty 
of  fifty  dollars  for  each  such  offense." 

§  1607.  Washed  or  restored  revenue  stamp — Penalty 
under  act  August  27,  1894.  If  any  person  shall  forge  or 
counterfeit,  or  cause  or  procure  to  be  forged  or  counter- 
feited, any  stamp,  die,  plate,  or  other  instrument,  or  any 
part  of  any  stamp,  die,  plate,  or  other  instrument  which 
shall  have  been  provided  or  may  hereafter  be  provided, 
made,  or  used  in  pursuance  of  the  provisions  of  this  Act 
or  of  any  previous  provisions  of  law  on  the  same  subjects, 
or  shall  forge,  counterfeit,  or  resemble,  or  cause  or  pro- 
cure to  be  forged,  counterfeited,  or  resembled  the  impres- 
sion or  any  part  of  the  impression  of  any  such  stamp,  die, 
plate,  or  other  instrument,  as  aforesaid,  upon  any  paper, 
or  shall  stamp  or  mark  or  cause  or  procure  to  be  stamped 
or  marked  any  paper  with  any  such  forged  or  counter- 
feited stamp,  die,  plate,  or  other  instrument  or  part  of  any 
stamp,  die,  plate,  or  otlier  instrument,  as  aforesaid,  with 
intent  to  defraud  the  United  States  of  any  of  the  taxes 
hereby  imposed  or  any  part  thereof;  or  if  any  person  shall 
utter,  or  sell,  or  expose  to  sale  any  paper,  article,  or  thing 
having  thereupon  the  impression  of  any  such  counter- 
feited stamp,  die,  plate,  or  other  instrument,  or  any  part 
of  any  stamp,  die,  plate,  or  other  instrument,  or  any  such 
forged,  counterfeited  or  resembled  impression,  or  part  of 
impression,  as  aforesaid,  knowing  tlie  same  to  be  forged, 

39— R.  S.  3403,  Act  July  20,  1868,  40— R.  S.  3404,  Act  .Inly  20,  1868, 

15  Stat.  164.  l-'i  Stat.  162. 


Violations  of  Inteenal  Revenue  1185 

counterfeited,  or  resembled;  or  if  any  person  shall  know- 
ingly use  or  permit  the  use  of  any  stamp,  die,  plate,  or 
other  instrument  which  shall  have  been  so  provided, 
made,  or  used,  as  aforesaid,  with  intent  to  defraud  the 
United  States;  or  if  any  person  shall  fraudulently  cut, 
tear,  or  remove,  or  cause  or  procure  to  be  cut,  torn,  or 
removed,  the  impression  of  any  stamp,  die,  plate,  or  other 
instrument,  which  shall  have  been  provided,  made,  or  used 
in  pursuance  of  this  Act,  or  of  any  previous  provisions  of 
law  on  the  same  subjects,  from  any  paper,  or  any  instru- 
ment or  writing  charged  or  chargeable  with  any  of  the 
taxes  imposed  by  law;  or  if  any  person  shall  fraudulent- 
ly use,  join,  fix,  or  place,  or  cause  to  be  used,  joined,  fixed, 
or  placed,  to,  with,  or  upon  any  paper,  or  any  instrument 
or  writing  charged  or  chargeable  with  any  of  the  taxes 
hereby  imposed,  any  adhesive  stamp,  or  the  impression 
of  any  stamp,  die,  plate,  or  other  instrument,  which  shall 
have  been  provided,  made,  or  used  in  pursuance  of  law, 
and  which  shall  have  been  cut,  torn,  or  removed  from  any 
other  paper  or  any  instrument  or  writing  charged  or 
chargeable  with  any  of  the  taxes  imposed  by  law;  or  if 
any  person  shall  willfully  remove  or  cause  to  be  removed, 
alter  or  cause  to  be  altered,  the  canceling  or  defacing 
marks  on  any  adhesive  stamp,  with  intent  to  use  the  same, 
or  to  cause  the  use  of  the  same,  after  it  shall  have  been 
once  used,  or  shall  knowingly  or  willfully  sell  or  buy  such 
washed  or  removed  stamps  or  offer  the  same  for  sale, 
or  give  or  expose  the  same  to  any  person  for  use  or 
knowingly  use  the  same,  or  prepare  the  same  with  intent 
for  the  further  use  thereof;  or  if  any  person  shall  know- 
ingly and  without  lawful  excuse  (the  proof  whereof  shall 
lie  on  the  person  accused)  have  in  his  possession  any 
washed,  restored,  or  altered  stamps,  which  have  been 
removed  from  any  article,  paper,  instrument,  or  writing, 
then,  and  in  every  such  case,  every  person  so  offending, 
and  every  person  knowingly  and  willfully  aiding,  abet- 
ting, or  assisting  in  committing  any  such  offense  as 
c.  L.— 75 


1186  Criminal  Law 

aforesaid,  shall,  on  conviction  tliereof,  forfeit  the  said 
counterfeit,  washed,  restored,  or  altered  stamps  and  thev 
articles  upon  which  they  are  placed  and  be  punished  by 
fine  not  exceeding  one  thousand  dollars,  or  by  imprison- 
ment and  confinement  to  hard  labor  not  exceeding  five 
years,  or  both,  at  the  discretion  of  the  court.  And  the 
fact  that  any  adhesive  stamp  so  bought,  sold,  offered  for 
sale,  used,  or  had  in  possession  as  aforesaid,  has  been 
washed  or  restored  by  removing  or  altering  the  canceling 
or  defacing  marks  thereon,  shall  be  jDrima-facie  proof 
that  such  stamp  has  been  once  used  and  removed  by  the 
possessor  thereof  from  some  paper,  instrument,  or  writ- 
ing charged  with  taxes  imposed  by  law,  in  violation  of 
the  provisions  of  this  section.*^ 

§  1608.  Oleomargarine  must  be  sold  in  wooden  or  paper 
packages,  penalty  for  violation.  Tliat  all  oleomargarine 
shall  be  packed  by  the  manufacturer  thereof  in  firkins, 
tubs,  or  other  wooden  packages  not  before  used  for  that 
purpose,  each  containing  not  less  than  ten  pounds,  and 
marked,  stamped,  and  branded  as  the  Commissioner  of 
Internal  Revenue,  with  the  approval  of  the  Secretaiy  of 
the  Treasury,  shall  prescribe;  and  all  sales  made  by  manu- 
facturers of  oleomargarine,  and  wholesale  dealers  in  oleo- 
margarine shall  be  in  original  stamped  packages.  Retail 
dealers  in  oleomargarine  must  sell  only  from  original 
stamped  packages,  in  quantities  not  exceeding  ten 
pounds  and  shall  pack  the  oleomargarine  sold  by  them 
in  suitable  wooden  or  paper  packages,  which  shall  be 
marked  and  branded  as  the  rommissioncr  of  Internal  Rev- 
enue, with  tlie  approval  of  the  Secretary  of  the  Treasury, 
shall  prescribe.  Every  person  who  knowingly  sells  or 
offers  for  sale,  or  delivers  or  offers  to  deliver,  any  oleo- 
margarine in  any  other  form  than  in  new  wooden  or  paper 
packages  as  above  described,  or  wlio  packs  in  any  package 

41_Sec.    42,    28    RInt.    ■'^fil,    Act 
AtiR.    27.    1R94. 


Violations  of  Internal  Revenue  1187 

any  oleomargine  in  any  manner  contrary  to  law,  or  who 
falsely  brands  any  package  or  affixes  a  stamp  on  any  pack- 
age denoting  a  less  amount  of  tax  than  that  required  by 
law,  shall  be  fined  for  each  offense  not  more  than  one  thou- 
sand dollars,  and  be  imprisoned  not  more  than  two  years.*^ 

§  1609.  Putting  on  a  counterfeit  or  used  stamp,  etc.,  on 
a  package  of  tobacco,  a  felony.  Every  person  who  affixes 
to  any  package  containing  tobacco  or  snuff,  any  false, 
forged,  fraudulent,  spurious,  or  counterfeit  stamp,  or  a 
stamp  which  has  been  before  used,  shall  be  deemed  guilty 
of  a  felony,  and  shall  be  fined  not  less  than  one  thousand 
dollars  nor  more  than  five  thousand  dollars,  and  be  im- 
prisoned not  less  than  two  years  nor  more  than  five 
years.*^ 

§  1610.  Willfully  refusing  to  cancel  stamp  after  pack- 
age or  box  is  emptied  is  a  crime.  Whenever  any  stamped 
box,  bag,  vessel,  wrapper,  or  envelope  of  any  kind,  con- 
taining tobacco  or  snuff,  is  emptied,  the  stamp  or  stamps 
thereon  shall  be  destroyed  by  the  person  in  whose  hands 
the  same  may  be.  And  every  person  who  willfully 
neglects  or  refuses  so  to  do  shall,  for  each  such  offense, 
be  fined  fifty  dollars,  and  imprisoned  not  less  than  ten 
days  nor  more  than  six  months.  And  every  person  who 
sells  or  gives  away,  or  who  buys  or  accepts  from  another 
any  such  empty  stamped  box,  bag,  vessel,  wrapper,  or  en- 
velope of  any  kind,  or  the  stamp  or  stamps  taken  from 
any  such  empty  box,  bag,  vessel,  wrapper,  or  envelope 
of  any  kind,  shall,  for  each  such  offense,  be  fined  one  hun- 
dred dollars  and  imprisoned  for  not  less  than  twenty 
days,  and  not  more  than  one  year.  And  every  manu- 
facturer or  other  person  who  puts  tobacco  or  snuff  into 
any  such  box,  bag,  vessel,  wrapper,  or  envelope,  the  same 
having  been  either  emptied  or  partially  emptied,  or  who 

42— Sec.  6,  Act  Aug.  2,  1886,  24  43— Eev.  Stat.  3375,  Act  July  20, 

Stat.   210.  1868,  15  Stat.  156. 


1188  Ckimixal  Law 

has  in  his  possession,  or  affixes  to  any  box  or  other  pack- 
age, any  stamp  which  has  been  previously  nsed,  or  who 
sells,  or  offers  for  sale,  any  box  or  other  package  of 
tobacco,  snnff,  or  cigars,  having  affixed  thereto  any 
fraudulent,  spurious,  imitation,  or  counterfeit  stamp,  or 
stamp  that  has  been  previously  used,  or  sells  from  any 
such  fraudulently  stamped  box  or  package,  or  has  in 
his  possession  any  box  or  package  as  aforesaid,  know- 
ing the  same  to  be  fraudulently  stamped,  shall,  for  each 
such  offense,  be  fined  not  less  than  one  hundred  dollars 
nor  more  than  five  hundred  dollars,  and  imprisoned  for 
not  less  than  one  year  nor  more  than  three  years.** 

§  1611.  Taxes  in  addition  to  import  duties  on  tobacco 
must  be  paid,  or  officer  permitting  same  to  pass  without 
compliance  with  provisions  is  guilty  of  crime.  That  all 
manufactured  tobacco  and  snuff  (not  including  cigars) 
imported  from  foreign  countries  shall,  in  addition  to  the 
import  duties  imposed  on  the  same,  pay  the  tax  imposed 
by  law  on  like  kinds  of  tobacco  and  snuff  manufactured 
in  the  United  States,  and  have  the  same  stamps  respec- 
tively affixed.  Such  stamps  shall  be  affixed  and  canceled 
on  all  such  articles  so  imported  by  the  owner  or  importer 
thereof  while  they  are  in  the  custody  of  the  proper  cus- 
toms-house officers,  and  such  articles  shall  not  pass  out 
of  the  custody  of  said  officers  until  the  stamps  have  been 
affixed  and  canceled.  Such  tobacco  and  snuff  shall  be 
]n\i  up  ill  packages,  as  prescribed  by  law  for  like  articles 
iiiaiMifactured  in  the  .United  States  before  the  stamps  are 
affixed,  and  the  owner  or  importer  sliall  be  liable  to  all 
tlie  penal  provisions  prescribed  for  manufactures  of  to- 
bacco and  snuff  manufactured  in  tlie  United  States. 
AVIiciif'ver  it  is  necessary  to  take  any  such  articles,  so 
imported,  to  any  place  for  the  purpose  of  repacking, 
affixing,  and  canceling  such  stamps,  other  than  the  public 

44 — Rev.  Stat.  3376,  Act  June  6, 
)H72.  17  Stat.  253. 


Violations  of  Inteenal  Revenue  1189 

stores  of  the  United  States,  the  collector  of  customs  of  the 
port  where  they  are  entered  shall  designate  a  bonded 
warehouse  to  which  they  shall  be  taken,  under  the  control 
of  such  customs  officers  as  he  may  direct.  And  every  officer 
of  customs  who  permits  any  such  articles  to  pass  out  of 
his  custody  or  control  without  compliance  by  the  owner 
or  importer  thereof  with  the  provisions  of  this  section 
relating  thereto,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall  be  fined  not  less  than  one  thousand  dollars  nor 
more  than  five  thousand  dollars,  and  imprisoned  not  less 
than  six  months  nor  more  than  three  years.  Provided, 
That  scraps,  cuttings,  and  clippings  of  tobacco  imported 
from  any  foreign  country  may,  after  the  proper  customs 
duty  has  been  paid  thereon,  be  withdrawn  in  bulk  without 
the  payment  of  the  internal-revenue  tax,  and  transferred 
as  material  directly  to  the  factory  of  a  manufacturer  of 
tobacco  or  snuff,  or  of  a  cigar-manufacturer,  under  such 
restrictions  and  regulations  as  shall  be  prescribed  by  the 
Commissioner  of  Internal  Revenue  and  approved  by  the 
Secretary  of  the  Treasury.*^ 

§  1612.  A  dealer  in  leaf  tobacco  who  willfully  neg-lects 
or  willfully  refuses  to  keep  books  as  required.  Every 
dealer  in  leaf  tobacco  shall  make  daily  entries  in  two 
books  kept  for  that  purpose,  one  book  to  be  furnished 
by  the  goveniment,  under  such  regulations  as  the  Com- 
missioner of  Internal  Revenue  shall  prescribe,  of  the 
number  of  hogsheads,  cases,  and  pounds  of  leaf  tobacco 
purchased  or  received  by  him  on  assignment,  consign- 
ment, transfer,  or  otherwise,  and  of  whom  purchased  or 
received,  and  the  number  of  hogsheads,  cases,  or  pounds 
sold  by  him,  with  the  name  and  residence,  in  each  in- 
stance, or  the  person  to  whom  sold,  and,  if  shipped,  to 
whom  shipped,  and  to  what  district;  one  of  these  books 
shall  be  kept  at  his  place  of  business,  and  shall  be  open 

45— Eev.   Stat.   3377,   Act   March 
1879,  20  Stat.  346. 


1190  Criminal  Law 

at  all  hours  to  the  inspection  of  any  internal-revenue 
officer  or  agent,  and  the  other  shall,  at  the  end  of  each 
and  eveiy  year,  and  upon  the  discontinuance  of  business 
of  any  leaf  dealer  during  any  year,  be  handed  over  to 
the  collector  of  his  district  for  the  use  of  the  government. 
And  every  dealer  in  leaf  tobacco  who  willfully  neglects 
or  refuses  to  keep  the  books  herein  provided  for,  and  in 
the  manner  which  shall  be  prescribed  by  the  Commis- 
sioner of  Internal  Revenue,  or  to  transfer  to  the  collector 
of  his  district,  as  herein  provided,  the  duplicate  copy 
containing  his  daily  transactions,  as  aforesaid,  shall  be 
fined  not  less  than  one  hundred  dollars  nor  more  than 
five  thousand  dollars,  and  imprisoned  not  more  than  one 
year.*^ 

§  1613.  Punishment  for  selling  or  offering  to  sell  snuff 
or  manufactured  tobacco  not  put  up  in  packages  and 
stamped.  No  manufactured  tobacco  shall  be  sold  or  of- 
fered for  sale  unless  put  up  in  packages  and  stamped  as 
prescribed  in  this  chapter,  except  at  retail  by  retail 
dealers  from  packages  authorized  by  section  thirty-three 
hundred  and  sixty-two  of  the  Revised  Statutes;  and  every 
person  who  sells  or  offers  for  sale  any  snuff  or  any  kind 
of  manufactured  tobacco  not  so  put  up  in  packages  and 
stamped  shall  be  fined  not  less  than  five  hundred  dollars 
nor  more  than  five  thousand  dollars,  and  imprisoned  not 
less  than  six  moiitlis  nor  more  than  two  years.*'' 

§  1614.  Unlawful  to  pui'chase  or  secure  tobacco  for  sale 
not  branded  or  marked — Punishment.  Every  person  who 
purchases,  or  receives  for  sale,  any  manufactured  tobacco 
or  snuff  which  has  not  been  branded  or  stamped  accord- 
ing to  hiw,  shall  l)e  liabk;  to  a.  penalty  of  lil'ty  dollars  for 
each  ofTense." 

46— Act   M.irch   ],   1879,   20  Stat.  48— Rev.  Stat.  33GG,  July  20,  1808, 

34.';,    Rev.    Stat.    3360.  15   Stat.    156. 

47— Rov.  Stat.  3363,   Act  Oct.    1, 
18fW),   26   Stat.   619. 


Violations  of  Internal  Revenue  1191 

§  1615.  Manufacturing"  tobacco  for  another  on  commis- 
sion, tax  must  be  paid  by  the  actual  maker,  fraud,  pun- 
ishment. Whenever  tobacco  or  snuff  of  any  description  is 
manufactured,  in  whole  or  in  part,  upon  commission  or 
shares,  or  the  material  from  which  any  such  articles  are 
made,  or  are  to  be  made,  is  furnished  by  one  person  and 
made  or  manufactured  by  another,  or  the  material  is  fur- 
nished or  sold  by  one  person  with  an  understanding  or 
agreement  with  another  that  the  manufactured  article  is 
to  be  received  in  payment  therefor  or  for  any*  part 
thereof,  the  stamps  required  by  law  shall  be  affixed  by  the 
actual  maker  or  manufacturer  before  the  article  passes 
from  the  place  of  making  or  manufacturing.  And  in  case 
of  fraud  on  the  part  of  either  of  said  persons  in  respect 
to  said  manufacture,  or  of  any  collusion  on  their  part  with 
intent  to  defraud  the  revenue,  such  material  and  manu- 
factured articles  shall  be  forfeited  to  the  United  States; 
and  each  party  to  such  fraud  or  collusion  shall  be  deemed 
guilty  of  a  misdemeanor,  and  fined  not  less  than  one 
hundred  dollars  nor  more  than  five  thousand,  and  impris- 
oned for  not  less  than  six  months  nor  more  than  three 
years.*® 

§  1616.  Selling  or  removing  without  payment  of  the 
stamp  denoting  tax,  unlawful.  Every  manufacturer  of  to- 
bacco or  snuff  who  removes,  otherwise  than  as  provided 
by  law,  or  sells,  without  the  proper  stamps  denoting  the 
tax  thereon,  or  without  having  paid  the  special  tax,  or 
given  bond  as  required  by  law,  any  tobacco  or  snuff,  or 
who  makes  false  and  fraudulent  entries  of  manufactures 
or  sales  of  tobacco  or  snuff,  or  makes  false  or  fraudulent 
entries  of  the  purchase  or  sales  of  leaf  tobacco,  tobacco- 
stems,  or  other  material,  or  who  affixes  any  false,  forged, 
fraudulent,  spurious,  or  counterfeit  stamp,  or  imitation  of 
any  stamp,  required  by  law,  or  any  stamp  required  by  law 

49— Eev.  Stat.  3370,  Act  July  20, 
1868,  15  Stat.  158. 


1192  Criminal  Law 

which  has  been  previously  used,  to  any  box  or  package 
containing  any  tobacco  or  snuff,  shall,  in  addition  to  the 
penalties  elsewhere  provided  by  law  for  such  offenses, 
forfeit  to  the  United  States  all  raw  material  and  manu- 
factured or  partly  manufactured  tobacco  and  snuff,  and 
all  machinery,  tools,  implements,  apparatus,  fixtures, 
boxes,  and  barrels,  and  all  other  materials,  which  may  be 
found  in  his  possession  in  his  manufactory,  or  elsewhere.^" 

§  1617.  Removing  from  any  manufactory  any  tobacco 
or  snuff  without  being  stamped  in  proper  packages. 
Eveiy  person  who  removes  from  any  manufactory,  or 
from  any  place  w^here  tobacco  or  snuff  is  made,  any  manu- 
factured tobacco  or  snuff  w^ithout  the  same  behig  put  up 
in  proper  packages,  or  without  the  proper  stamp  for  the 
amount  of  tax  thereon  being  affixed  and  canceled,  as  re- 
quired by  law;  or,  if  the  same  be  intended  for  export, 
without  the  proper  export-stamp  being  affixed;  or  who 
uses,  sells,  or  offers  for  sale,  or  has  in  possession,  except 
in  tlie  manufactory,  or  while  in  transfer  under  bond  or  a 
collector's  pemiit,  for  any  manufactory,  store,  or  ware- 
house, to  a  vessel  for  exportation  to  a  foreign  country, 
any  manufactured  tobacco  or  snuff,  without  proper 
stamps  for  the  amount  of  tax  thereon  being  affixed  and 
canceled;  or  who  sells,  or  offers  for  sale  for  consumption 
in  the  United  States,  or  uses,  or  has  in  possession,  except 
in  the  manufactory,  or  while  in  transfer  under  bond  or  a 
collector's  pennit,  from  any  manufactoiy,  store,  or  ware- 
house, snuff  on  whicli  only  the  stamp  marking  the  same 
for  export  lias  been  affixed,  shall  for  each  such  oiYonse, 
respectively,  ho.  lined  not  less  than  one  thousand  dollars 
nor  more  tliaii  li\('  tiionsand  dollars,  and  l)e  imprisoned 
not  less  than  six  months  nor  more  than  two  years." 

50_Rpv.  Stat.  3172,  June  G,  1872,  .'31— Kcv.  Stat.  3374,  .Tunc  6,  1872, 

17    Stat.    253.  17   Stat.   253. 


Violations  of  Internal  Revenue  1193 

§  1618.  The  kind  of  brand  that  must  be  put  upon  pack- 
age of  flour — Penalty  for  violation.  That  every  person, 
firm,  or  coi-poration  making,  packing,  or  repacking  mixed 
flour  shall  plainly  mark  or  brand  each  package  contain- 
ing the  same  with  the  words  *' mixed  Hour"  in  plain 
black  letters  not  less  than  two  inches  in  length,  together 
with  the  true  weight  of  such  package,  the  names  of  the 
ingredients  composing  the  same,  the  name  of  the  maker 
or  packer,  and  the  place  where  made  or  packed.  In  addi- 
tion thereto  such  maker  or  packer  shall  place  in  each 
package  a  card  not  smaller  than  two  inches  in  width  by 
three  inches  in  length,  upon  which  shall  be  printed  the 
words  ''mixed  flour,"  together  with  the  names  of  the 
ingredients  composing  the  same,  and  the  name  of  the 
maker  or  packer,  and  the  place  where  made  or  packed. 
Any  person,  firm,  or  corporation  making,  packing,  or 
repacking  mixed  flour  hereunder,  failing  to  comply  with 
the  provisions  of  this  section,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  shall  be  punished 
by  a  fine  of  not  less  than  two  hundred  and  fifty  dollars 
and  not  more  than  five  hundred  dollars,  or  be  imprisoned 
not  less  than  sixty  days  nor  more  than  one  year.^*^ 

§  1619.  Falsely  marking  unbranded  packages  of  flour — 
Penalty.  Tliat  all  sales  and  consignments  of  mixed  flour 
shall  be  in  packages  not  before  used  for  that  purpose;  and 
every  person,  firm,  or  corporation  knowingly  selling  or 
offeringfor  sale  any  mixed  flour  in  other  than  marked  and 
branded  packages,  as  required  by  the  provisions  of  this 
Act  relating  to  the  manufacture  and  sale  of  mixed  flour, 
or  who  packs  in  any  package  or  packages  any  mixed  flour 
in  any  manner  contrary  to  the  provisions  relating  to  the 
manufacture  and  sale  of  mixed  flour  of  this  Act,  or  who 
falsely  marks  or  brands  any  package  or  packages  contain- 
ing mixed  flour,  or  unlawfully  removes  such  marks  or 

52— Sec.   37,   Act  June   13,   1898, 
30  Stat.  467. 


1194  Crimhstal  Law 

brands,  shall,  for  each  offense,  be  punished  by  a  fine  of 
not  less  than  two  hundred  and  fifty  dollars  and  not  more 
than  five  hundred  dollars,  or  by  imprisonment  not  less 
than  thirty  days  nor  more  than  one  year.^' 

§  1620.  Failure  to  label  packages  of  flour,  penalty.  That 
in  addition  to  the  branding  and  marking  of  mixed  flour 
as  herein  provided,  there  shall  be  affixed  to  the  packages 
containing  the  same  a  label  in  the  following  words: 

''Notice. — The  (manufacturer  or  packer,  as  the  case 
may  be),  of  the  mixed  flour  herein  contained  has  complied 
with  all  the  requirements  of  law.  Every  person  is  cau- 
tioned not  to  use  this  package  or  label  again  or  to  remove 
the  contents  without  destroying  the  revenue  stamp  there- 
on, under  the  penalty  prescribed  by  law  in  such  cases. ' ' 

Every  person,  firm,  or  corporation  failing  or  neglecting 
to  affix  such  label  to  any  package  containing  mixed  flour 
made  or  packed  by  him  or  them,  or  who  removes  from 
any  such  package  any  labels  so  affixed,  shall,  upon  con- 
viction thereof,  be  fined  not  less  than  fifty  dollars  for 
each  label  so  removed,^* 

§  1621.  Tax  stamps  must  be  put  upon  all  barrels  or 
packages — Penalty  for  violation.  Barrels  or  otlier  pack- 
ages in  which  mixed  flour  may  be  packed  shall  contain 
not  to  exceed  one  hundred  and  ninety-six  pounds;  that 
upon  the  manufacture  and  sale  of  mixed  flour  tliere  shall 
be  levied  a  tax  of  four  cents  per  barrel  or  other  package 
containing  one  hundred  and  ninety-six  pounds  or  more 
than  ninety-eight  pounds;  two  cents  on  every  half  barrel 
or  other  package  containing  ninety-eight  or  more  than 
forty-nine  pounds;  one  cent  on  every  quarter  barrel  or 
oilier  package  containing  forty-nine  pounds  or  more  than 
twf'iity-fonr  and  ono-lialf  ]»onnds;  and  on(>  lialf  cent  on 
eveiy  one-eiglitli  ])arrel  or  other  package  containing  twen- 

53_Rcc.    38,    .Tunc    13,    1898,    30  54— Sec.  39,   Act  Juno    13,   1898, 

Stat.  468.  30  Stat.  468. 


Violations  of  Intekxal  Revenue  1195 

ty-fonr  and  a  half  pounds  or  less,  to  be  paid  by  the  person, 
firm,  or  corporation  makin,£r  or  packing  said  flour.  The 
tax  levied  by  this  section  shall  be  represented  by  coupon 
stamps,  and  the  provisions  of  existing  laws  governing 
the  engraving,  issue,  sale,  accountability,  effacement,  and 
destruction  of  stamps  relating  to  tobacco  and  snuff  shall, 
so  far  as  applicable,  be  made  to  apply  to  stamps  provided 
in  this  section:  Provided,  That  when  mixed  flour,  on  the 
manufacture  and  sale  of  which  the  tax  herein  imposed  has 
been  paid,  is  sold  and  then  repacked  without  the  addition 
of  any  other  material,  such  repacked  flour  shall  not  be' 
lialSle  to  any  additional  tax  but  the  packages  containing 
such  repacked  flour  shall  be  branded  or  marked  as  re- 
quired by  the  provisions  of  section  thirty-seven  of  this 
Act,  and  shall  contain  the  card  provided  for  in  section 
thirty-seven  thereof;  and  in  addition  thereto  the  person, 
firm,  or  corporation  repacking  mixed  flour  shall  place  on 
the  packages  containing  the  same  a  label  in  the  following 
words : 

' '  Notice. — The  contents  of  this  package  have  been  taken 
from  a  regular  statutory  package,  upon  which  the  tax  has 
been  duly  paid." 

Any  person  violating  the  provisions  of  this  section  shall 
upon  conviction  thereof,  be  punished  by  a  fine  of  not  less 
than  two  hundred  and  fifty  dollars  and  not  more  than  five 
hundred  dollars,  or  by  imprisonment  not  to  exceed  one 
year.^^ 

§  1622.  Imported  mixed  flour  marked,  etc.,  and  stamped 
as  such  flour  made  and  packed  in  U.  S. — Penalty  for  viola- 
tion. All  mixed  flours,  imported  from  foreign  countries, 
shall,  in  addition  to  any  import  duties  imposed  thereon, 
pay  an  internal  revenue  tax  equal  in  amount  to  the  tax 
imposed  under  section  fourth  of  this  Act,  such  tax  to  be 
represented  by  coupon  stamps,  and  the  packages  contain 

55— Sec.  40,  Act  June  13,  1898,  30 
Stat.  468. 


1196  Ceiminal  Law 

ing  such  imported  mixed  flour  shall  be  marked,  branded, 
labeled,  and  stamped  as  in  the  ease  of  mixed  flour  made  or 
packed  in  the  United  States.  Any  person,  firm,  or  cor- 
poration purchasing  or  receiving  for  sale  or  repacking  any 
such  mixed  flour  which  has  not  been  branded,  labeled,  or 
stamped,  as  required  by  this  Act,  or  which  is  contained  in 
packages  which  have  not  been  marked,  branded,  labeled, 
or  stamped,  as  required  by  this  Act,  shall,  upon  convic- 
tion, be  fined  not  less  than  fifty  dollars  nor  more  than 
five  hundred  dollars.^® 

§  1623.  Stamp  on  empty  packag^e  of  mixed  flour  must  be 
destroyed,  penalty  for  violation.  Whenever  any  package 
containing  mixed  flour  is  emptied  it  shall  be  the  duty  of 
the  person  in  whose  possession  it  is  to  destroy  the  stamp 
thereon.  Any  person  disposing  of  such  package  without 
first  having  destroyed  the  stamp  or  mark  or  marks  there- 
on shall,  upon  conviction,  be  punished  by  a  fine  not  ex- 
ceeding the  sum  of  twenty-five  dollars." 

§  1624.  Purchasing  or  securing  for  sale  flour  upon 
which  tax  has  not  been  paid — Penalty.  Any  person,  firm, 
or  corporation  knowingl}^  purchasing  or  receiving  for  sale 
or  for  repacking  and  resale  any  mixed  flour  from  any 
maker,  packer,  or  importer,  who  has  not  paid  the  tax 
lierein  provided,  shall,  for  each  offense,  be  fined  not  less 
tlian  fifty  dolhirs,  and  forfeit  to  the  United  Stales  all  the 
articles  so  purchased  or  received,  or  llic  t'uil  value 
thereof." 

§  1625.  Penalty  for  subsequent  offenses  is  imprison- 
ment. Any  person,  firm,  or  corpoi-atioii  found  guilty  of  a 
second  or  any  subse(iuent  violation  of  any  of  the  provi- 
sions of  section  thirty-six  to  section  forty-five,  both  inclu- 
sive, relating  to  tlie  manufacture  and  sale  of  mixed  flour 

56— Sec.   42,    Act   .Juno    13,    1898,  58— Soc.    43,   Act   .Juno    13,    1898, 

30  Stat.  469.  30  Stat.  469. 

57— Sec.    45,    Act   .Juno    13,    1898, 
30  Stat.  469. 


Violations  of  Internal  Revenue  1197 

as  aforesaid,  of  this  Act  shall,  in  addition  to  the  penalties 
imposed,  be  imprisoned  not  less  than  thirty  days  nor  more 
than  ninety  days.^^ 

§  1626.  All  retail  and  wholesale  dealers  must  display 
sign,  penalty  for  violation.  That  all  retail  and  wholesale 
dealers  in  filled  cheese  shall  display  in  a  conspicuous  place 
in  his  or  their  sales  room  a  sign  bearing  the  words  "Filled 
cheese  sold  here"  in  black-faced  letters  not  less  than  six 
inches  in  length,  upon  a  white  ground,  with  the  name  and 
number  of  the  revenue  district  in  which  his  or  their  busi- 
ness is  conducted;  and  any  wholesale  or  retail  dealer  in 
filled  cheese  who  fails  or  neglects  to  comply  with  the 
provisions  of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  on  conviction  thereof  be  fined  for 
each  and  every  offense  not  less  than  fifty  dollars  and  not 
more  than  two  hundred  dollars.^" 

§  1627.  Stamp  on  empty  packages  of  filled  cheese  must 
be  destroyed.  That  whenever  any  stamped  package  con- 
taining filled  cheese  is  emptied  it  shall  be  the  duty  of  the 
person  in  whose  hands  the  same  is  to  destroy  the  stamps 
thereon;  and  any  person  who  willfully  neglects  or  refuses 
so  to  do  shall,  for  each  such  offense,  be  fined  not  exceeding 
fifty  dollars  or  imprisoned  not  less  than  ten  days  nor  more 
than  six  months.^^ 

§  1628.  Manufacturer  of  filled  cheese  shall  post  notice 
on  package,  penalty.  That  every  manufacturer  of  filled 
cheese  shall  securely  afiix,  by  pasting  on  each  package 
containing  filled  cheese  manufactured  by  him  a  label  on 
which  shall  be  printed,  besides  the  number  of  the  manu- 
factoiy  and  the  district  and  State  in  which  it  is  situated, 
these  words : 

59— Sec.    48,    June    13,  1898,    30  61— Sec.  14,  Act  June  6,  1896,  29 

Stat.   470.  Stat.  256. 

60— Sec.    7,    Act    June  6,    1896, 
29  Stat.  255. 


1198  Criminal  Law 

"Notice. — The  manufacturer  of  the  filled  cheese  herein 
contained  has  complied  with  all  the  requirements  of  the 
law.  Every  person  is  cautioned  not  to  use  either  this 
package  again  or  the  stamp  thereon  again,  nor  to  remove 
the  contents  of  this  package  without  destroying  said 
stamp,  under  the  penalty  provided  by  law^  in  such  cases." 

Every  manufacturer  of  filled  cheese  who  neglects  to 
affix  such  label  to  any  package  containing  filled  cheese 
made  by  him  or  sold  or  offered  for  sale  by  or  for  him,  shall 
be  fined  fifty  dollars  for  each  package  in  respect  to  which 
such  offense  is  committed.^^ 

§  1629.  Retailers  in  filled  cheese  shall  sell  from  original 
stamped  packages — Violation.  That  filled  cheese  shall  be 
packed  by  the  manufacturers  in  wooden  packages  only, 
not  before  used  for  that  purpose,  and  marked,  stamped, 
and  branded  Avith  the  words  "filled  cheese"  in  black- 
faced  letters  not  less  than  two  inches  in  length,  in  a  circle 
in  the  center  of  the  top  and  bottom  of  the  cheese;  and  in 
black-faced  letters  of  not  loss  than  two  inches  in  length  in 
line  from  the  top  to  the  bottom  of  the  cheese,  on  the  side 
in  four  places  equidistant  from  each  other,  and  the  pack- 
age containing  such  cheese  shall  be  marked  in  the  same 
manner,  and  in  the  same  number  of  places,  and  in  the 
same  description  of  letters  as  above  provided  for  the 
marking  of  the  cheese;  and  all  sales  or  consignments  made 
})y  manufacturers  of  filled  cheese  to  wholesale  dealers  in 
filled  cheese  or  to  exporters  of  filled  cheese  shall  be  in 
original  stamj^ed  packages.  Retail  dealers  in  filled  cheese 
shall  sell  only  from  original  stamped  packages,  and  sliall 
pack  tlie  fiik'd  cheese  wlien  sold  in  suital)l('  wooden  or 
I)aper  packages,  which  shall  be  marked  and  l)randed  in 
accordance  with  rules  and  regulations  to  be  prescribed  by 
llif  Tommissioner  of  Internal  Revenue  with  tlie  approval 
of  th(!  Secretary  of  tlie  Treasury.     Every  person   who 

C2— Soc.  8,  Act  Juno  6,  IROR,  20 
Htat.  '2r,r,. 


Violations  of  Inteknal  Revenue  1199 

knowingly  sells  or  offers  to  sell,  or  delivers  or  offers  to 
deliver,  filled  cheese  in  any  other  form  than  in  new  wooden 
or  paper  packages,  marked  and  branded  as  hereinbefore 
provided  and  as  above  described,  or  who  packs  in  any 
package  or  packages  filled  cheese  in  any  manner  contrary 
to  law,  or  who  falsely  brands  any  package  or  affixes  a 
stamp  on  any  package  denoting  a  less  amount  to  tax  than 
that  required  by  law,  shall  upon  conviction  thereof  be 
fined  for  each  and  every  offense  not  less  than  fifty  dollars 
and  not  more  than  five  hundred  dollars  or  be  imprisoned 
not  less  than  thirty  days  nor  more  than  one  year.®* 

§  1630.  Manufacturer  of  fiUed  cheese,  regulations  and 
penalties.  That  every  manufacturer  of  filled  cheese  shall 
file  with  the  collector  of  internal  revenue  of  the  district  in 
which  his  manufactoiy  is  located  such  notices,  inven- 
tories, and  bonds,  shall  keep  such  books  and  render  such 
returns  of  materials  and  products,  shall  put  up  such  signs 
and  affix  such  number  to  his  factory,  and  conduct  his  busi- 
ness under  such  surveillance  of  officers  and  agents  as  the 
Commissioner  of  Internal  Revenue,  with  the  approval  of 
the  Secretary  of  the  Treasury,  may  by  regulation  require. 
But  the  bond  required  of  such  manufacturer  shall  be  with 
sureties  satisfactory  to  the  collector  of  internal  revenue, 
and  in  a  penal  sum  of  not  less  than  five  thousand  dollars ; 
and  the  amount  of  said  bond  may  be  increased  from  time 
to  time,  and  additional  sureties  required,  at  the  discretion 
of  the  collector  or  under  instructions  of  the  Commissioner 
of  Internal  Revenue.  Any  manufacturer  of  filled  cheese 
who  fails  to  comply  with  the  provisions  of  this  section  or 
with  the  regulations  herein  authorized,  shall  be  deemed 
guilty  of  a  misdemeanor  and  upon  conviction  thereof  shall 
be  fined  not  less  than  five  hundred  nor  more  than  one 
thousand  dollars.®* 

63— Sec.  6,  Act  June  6,  1896,  29  64— Sec.  5,  Act  June  6,  1896,  29 

Stat.  254.  Stat.    254. 


1200  Ceimixal  Law 

§  1631.  Manufacturer  of  oleomargarine  defrauding  or 
attempting  to  defraud  government  of  tax.  That  when- 
ever any  person  engaged  in  carrying  on  the  business  of 
manufacturing  oleomargarine  defrauds,  or  attempts  to 
defraud  the  United  States  of  the  tax  on  the  oleomargarine 
produced  by  him,  or  any  part  thereof,  he  shall  forfeit  the 
factory  and  manufacturing  apparatus  used  by  him,  and 
all  oleomargarine  and  all  raw  material  for  the  production 
of  oleomargarine  found  in  the  factory  and  on  the  factory 
premises,  and  shall  be  fined  not  less  tiian  five  hundred  dol- 
lars nor  more  than  five  thousand  dollars,  and  be  impris- 
oned not  less  than  six  months  nor  more  than  three  years.** 

§  1632.  Willfully  removing  or  defacing  stamps  on  oleo- 
margarine, misdemeanor.  That  all  packages  of  oleomar- 
garine subject  to  tax  under  this  Act,  that  shall  be  found 
without  stamps  or  marks  as  herein  provided,  and  all  oleo- 
margarine intended  for  human  consumption  which  con- 
tains ingredients  adjudged,  as  hereinbefore  provided,  to 
be  deleterious  to  the  public  health,  shall  be  forfeited  to 
the  United  States.  Any  person  who  shall  willfully  remove 
or  deface  the  stamps,  marks,  or  brands  on  package  con- 
taining oleomargarine  taxed  as  provided  herein  shall  bo 
guilty  of  a  misdemeanor,  and  shall  be  punished  by  a  fine 
of  not  less  than  one  hundred  dollars  nor  more  than  two 
thousand  dollars,  and  by  imprisonment  for  not  less  tlian 
thirty  days  nor  more  than  six  montlis.** 

§  1633.  Stamps  on  emptied  packages  of  oleomargarine 
must  be  destroyed,  penalty  for  violation.  That  whenever 
juiy  slainix'd  jjackagc  containing  oleomargarine  is 
emptied,  it  shall  l)e  tiic  duty  of  the  person  in  whose  hands 
the  same  is  to  destroy  utterly  the  stamps  thereon;  and 
any  person  who  wilirnlly  neglects  or  refuses  so  to  do  shall 

65_Rpc.  17,  Act  Autj.  2,  188G,  2i  GG— Sec.  Ifi,  Act  Aug.  2,  1S8G,  24 

Stat.  212.  Stat.    212. 


Violations  of  Internal  Revenue  1201 

for  each  such  offense  be  fined  not  exceeding  fifty  dollars, 
and  miprisoned  not  less  than  ten  days  nor  more  than  six 
months.  And  any  person  who  fraudulently  gives  away  or 
accepts  from  another,  or  who  sells,  buys,  or  uses  for  pack- 
ing oleomargarine,  any  such  stamped  package,  shall  for 
each  such  offense  be  fined  not  exceeding  one  hundred  dol- 
lars, and  be  imprisoned  not  more  than  one  year.  Any 
revenue  officer  may  destroy  any  emptied  oleomargarine 
package  upon  which  the  tax-paid  stamp  is  found. ^''^ 

§  1634.  Customs  officer  permitting  imported  oleomar- 
garine to  pass  out  of  his  possession,  etc.,  without  com- 
plying with  law.  That  all  oleomargarine  imported  from 
foreign  countries  shall,  in  addition  to  any  import  duty  im- 
posed on  the  same,  pay  an  internal  revenue  tax  of  fifteen 
cents  per  pound,  such  tax  to  be  represented  by  coupon 
stamps  as  in  the  case  of  oleomargarine  manufactured  in 
the  United  States.  The  stamps  shall  be  affixed  and  can- 
celed by  the  owner  or  importer  of  the  oleomargarine  while 
it  is  in  the  custody  of  the  proper  custom-house  ofiicers; 
and  the  oleomargarine  shall  not  pass  out  of  the  custody  of 
said  officers  until  the  stamps  have  been  so  affixed  and  can- 
celed, but  shall  be  put  up  in  wooden  packages,  each  con- 
taining not  less  than  ten  pounds,  as  prescribed  in  this  Act 
for  oleomargarine  manufactured  in  the  United  States,  be- 
fore the  stamps  are  affixed  and  the  owner  or  importer  of 
such  oleomargarine  shall  be  liable  to  all  the  penal  provi- 
sions of  this  Act  prescribed  for  manufacturer  of  oleo- 
margarine manufactured  in  the  United  States.  Whenever 
it  is  necessaiy  to  take  any  oleomargarine  so  imported  to 
any  place  other  than  the  public  stores  of  the  United  States 
for  the  purpose  of  affixing  and  canceling  such  stamps,  the 
collector  of  customs  of  the  port  where  such  oleomargarine 
is  entered  shall  designate  a  bonded  warehouse  to  which  it 

67— Sec.  13,  Act  Aug.  2,  1886,  24 
Stat.  211. 

C.  L.— 76 


1202  Criminal  Law 

sliall  be  taken,  under  the  control  of  such  customs  officer  as 
such  collector  may  direct;  and  every  officer  of  customs 
who  permits  any  such  oleomargarine  to  pass  out  of  his 
custody  or  control  without  compliance  by  the  owner  or 
importer  thereof  with  the  provisions  of  this  section  relat- 
ing thereto,  shall  be  guilty  of  a  misdemeanor,  and  shall 
be  fined  not  less  than  one  thousand  dollars  nor  more  than 
five  thousand  dollars,  and  imprisoned  not  less  than  six 
months  nor  more  than  three  years.  Every  person  who 
sells  or  offers  for  sale  any  imported  oleomargarine,  or 
oleomargarine  purporting  or  claimed  to  have  been  im- 
ported, not  put  up  in  packages  and  stamped  as  provided 
by  this  Act,  shall  be  fined  not  less  than  five  hundred  dol- 
lars nor  more  than  five  thousand  dollars,  and  be  impris- 
oned not  less  than  six  months  nor  more  than  two  years.^' 

§  1635.  Notice  by  manufacturer  of  oleomargarine  must 
be  pasted  on  every  package.  That  every  manufacturer 
of  oleomargarine  shall  securely  affix,  by  pasting  on  each 
package  containing  oleomargarine  manufactured  by  him, 
a  label  on  which  shall  be  printed,  besides  the  number  of 
the  manufactory  and  the  district  and  State  in  which  it  is 
situated,  these  words: 

"Notice. — The  manufacturer  of  the  oleomargarine 
herein  contained  has  complied  with  all  the  requirements 
of  law.  Every  person  is  cautioned  not  to  use  either  this 
package  again  or  the  stamp  thereon  again,  nor  to  remove 
the  contents  of  this  package  without  destroying  said 
stamp,  under  the  penalty  provided  by  law  in  such  cases. ' ' 

Every  manufacturer  of  oleomargarine  who  neglects  to 
affix  snch  hibcl  to  any  package  containing  oleomargarine 
made  by  liini,  or  sold  or  offered  for  sale  by  or  for  him,  and 
every  person  wlio  removes  any  such  label  so  affixed  from 
any  sucli  package,  shall  be  fined  fifty  dollars  for  each 
package  in  respect  to  which  such  offense  is  committed. 


69 


68— Sec.    10,    Act    AiiK.    2,    1880.  69-Scc.  7,  Aug.  2,  1S8G,  21  Sti.t. 

24  Stat.  211.  210. 


Violations  of  Internal  Revenue  1203 

§  1636.  Violating-  the  Act  of  Aug.  2,  1886,  relating  to 
oleomargarine.  That  if  any  manufacturer  of  oleomarga- 
rine, any  dealer  therein  or  any  importer  or  exporter 
thereof  shall  knowingly  or  willfully  omit,  neglect,  or  re- 
fuse to  do,  or  cause  to  be  done,  any  of  the  things  required 
by  law  in  the  carrying  on  or  conducting  of  his  business,  or 
shall  do  anything  by  this  Act  prohibited,  if  tliere  be  no 
specific  penalty  or  punishment  imposed  by  any  other  sec- 
tion of  this  Act  for  the  neglecting,  omitting,  or  refusing 
to  do,  or  for  the  doing  or  causing  to  be  done,  the  thing  re- 
quired or  prohibited,  he  shall  pay  a  penalty  of  one  thou- 
sand dollars;  and  if  the  person  so  offending  be  the  manu- 
facturer for  a  wholesale  dealer  in  oleomargarine,  all  the 
oleomargarine  owned  by  him,  or  in  which  he  has  any 
interest  as  owner,  shall  be  forfeited  to  the  United  States.''® 

§1637.  Definition  of  "butter"  and  affixing  penalties, 
Act  May  9,  1902.  That  for  the  purpose  of  this  Act  "but- 
ter" is  hereby  defined  to  mean  an  article  of  food  as 
defined  in  "An  Act  defining  butter,  also  imposing  a  tax 
upon  and  regulating  the  manufacture,  sale,  importation, 
and  exportation  of  oleomargarine, ' '  approved  August  sec- 
ond, eighteen  hundred  and  eighty-six;  that  "adulterated 
butter"  is  hereby  defined  to  mean  a  grade  of  butter  pro- 
duced by  mixing,  reworking,  rechurning  in  milk  or  cream, 
refining,  or  in  any  w^ay  producing  a  uniform,  purified,  or 
improved  product  from  different  lots  or  parcels  of  melted 
or  unmelted  butter  or  butter  fat,  in  which  any  acid, 
alkali,  chemical,  or  any  substance  whatever  is  intro- 
duced or  used  for  the  purpose  or  with  the  effect  of  deo- 
dorizing or  removing  therefrom  rancidity,  or  any  butter 
or  butter  fat  with  which  there  is  mixed  any  substance 
foreign  to  butter  as  herein  defined,  with  intent  or  effect 
of  cheapening  in  cost  the  product,  or  any  butter  in  the 
manufacture  or  manipulation  of  which  any  process  or 

70—24  Stat.  212,  Sec.  18,  Oct.  2, 
1886. 


1204  Criminal  Law 

material  is  used  with  intent  or  effect  of  causing  the  ab- 
sorption of  abnormal  quantities  of  water,  milk,  or  cream; 
that  "process  butter"  or  "renovated  butter"  is  hereby- 
defined  to  mean  butter  which  has  been  subjected  to  any- 
process  by  which  it  is  melted,  clarified  or  refined  and 
made  to  resemble  genuine  butter,  always  excepting  "adul- 
terated butter"  as  defined  by  this  Act. 

That  special  taxes  are  imposed  as  follows : 

Manufacturers  of  process  or  renovated  butter,  shall 
pay  fifty  dollars  per  year  and  manufacturers  of  adulter- 
ated butter  shall  pay  six  hundred  dollars  per  year.  Eveiy 
person  who  engages  in  the  production  of  process  or  reno- 
vated butter  or  adulterated  butter  as  a  business  shall  be 
considered  to  be  a  manufacturer  thereof. 

Wholesale  dealers  in  adulterated  butter  shall  pay  a  tax 
of  four  hundred  and  eighty  dollars  per  annum,  and  re- 
tail dealers  in  adulterated  butter  shall  pay  a  tax  of  forty 
eight  dollars  per  annum.  Every  person  who  sells  adul- 
terated butter  in  less  quantities  than  ten  pounds  at  one 
time  shall  be  regarded  as  a  retail  dealer  in  adulterated 
butter. 

Every  person  who  sells  adulterated  butter  shall  be 
regarded  as  a  dealer  in  adulterated  butter,  and  sections 
3232,  3233,  3234,  3235,  323G,  3237,  3238,  3239,  3240,  3241, 
and  3243  of  the  revised  statutes  of  the  United  States  are, 
so  far  as  applicable,  made  to  extend  to  and  so  conclude 
and  apply  to  the  special  taxes  imposed  by  this  section  and 
to  the  person  upon  whom  they  are  imposed. 

That  every  person  who  carries  on  the  business  of  a 
maimfacturor  of  process  or  rcnovatod  butter  or  adul- 
terated butter  witlionl  linving  })aid  the  special  tax  tlien^- 
for,  as  retjuircd  by  kiw,  shall,  beside  being  liable  for  the 
payment  of  the  tax,  be  fined  not  less  than  one  thousand 
and  not  more  than  five  thousand  dollars;  and  every  person 
who  carried  on  the  business  of  a  dealer  in  adulterated  but- 
ter without  having  paid  the  special  tax  therefor,  as  re- 
(piircd  by  law,  shall,  beside  being  liable  for  the  payment 


Violations  of  Internal  Revenue  1205 

of  the  tax,  be  fined  not  less  than  fifty  and  not  more  than 
five  hundred  dollars  for  each  offense. 

Every  manufacturer  of  process  or  renovated  butter  or 
adulterated  butter  shall  file  with  the  collector  of  internal 
revenue  of  the  district  in  which  his  manufactory  is  located 
such  notices,  inventories,  and  bonds,  shall  keep  such  books 
and  render  such  returns  of  material  and  products,  shall 
put  up  such  signs  and  affix  such  number  of  his  factory, 
and  conduct  his  business  under  such  surveillance  of  offi- 
cers and  agents  as  the  Commissioner  of  Internal  Revenue, 
with  the  approval  of  the  Secretary  of  the  Treasury,  may 
by  regulation  require.  But  the  bond  required  of  such 
manufacturer  shall  be  with  sureties  satisfactoiy  to  the 
collector  of  internal  revenue,  and  in  a  penal  sum  of  not 
less  than  five  hundred  dollars  and  the  sum  of  said  bond 
may  be  increased  from  time  to  time  and  additional  sure- 
ties required  at  the  discretion  of  the  collector  or  under 
instructions  of  the  Commissioner  of  Internal  Revenue. 

All  adulterated  butter  shall  be  packed  by  the  manu- 
facturer thereof  in  firkins,  tubs,  or  other  wooden  packages 
not  before  used  for  that  purpose,  each  containing  not  less 
than  ten  pounds,  and  marked,  stamped,  and  branded  as 
the  Commissioner  of  Internal  Revenue,  with  the  approval 
of  the  Secretary  of  the  Treasury,  shall  prescribe;  and  all 
sales  made  by  manufacturers  of  adulterated  butter  shall 
be  in  original  stamped  packages.  Dealers  in  adulterated 
butter  must  sell  only  original  or  from  original  stamped 
packages,  and  when  such  original  stamped  packages  are 
broken  the  adulterated  butter  sold  from  same  shall  be 
placed  in  suitable  wooden  or  paper  packages,  which  shall 
be  marked  and  branded  as  the  Commissioner  of  Internal 
Revenue,  with  the  approval  of  the  Secretaiy  of  the  Treas- 
ury, shall  prescribe.  Every  person  who  knowingly  sells 
or  offers  for  sale,  or  delivers  or  offers  to  deliver  any 
adulterated  butter  in  any  other  form  than  in  new  wooden 
or  paper  packages  as  above  described,  or  who  packs  in 
any  package  any  adulterated  butter  in  any  manner  con- 


1206  Criminal  Law 

trarv  to  law,  or  who  falsely  brands  any  package  or  affixes 
a  stamp  on  any  package  denoting  a  less  amount  of  tax 
than  that  required  by  law,  shall  be  fined  for  each  offense 
not  more  than  one  thousand  dollars  and  be  imprisoned 
not  more  than  two  years. 

Every  manufacturer  of  adulterated  butter  shall  se- 
curely affix,  by  pasting,  on  each  package  containing 
adulterated  butter  manufactured  by  him  a  label  on  which 
shall  be  printed  besides  the  number  of  the  manufactory 
and  the  district  and  State  in  which  it  is  situated,  these 
words:  ** Notice. — That  the  manufacturer  of  the  adul- 
terated butter  herein  contained  has  complied  with  all  the 
requirements  of  law.  Every  person  is  cautioned  not  to 
use  either  this  package  again  or  the  stamp  thereon,  not'  to 
remove  the  contents  of  this  package  without  destroying 
said  stamp,  under  the  penaltj^  provided  by  law  in  such 
cases."  Every  manufacturer  of  adulterated  butter  who 
neglects  to  affix  such  label  to  any  package  containing 
adulterated  butter  made  by  him,  or  sold  or  offered  for 
sale  for  or  by  him,  and  every  person  who  removes  any 
such  label  so  affixed  from  any  such  package  shall  be  fined 
fifty  dollars  for  each  package  in  respect  to  which  such 
offense  is  committed. 

Upon  adulterated  butter,  when  manufactured  or  sold  or 
removed  for  consumption  or  use,  there  shall  be  assessed 
and  collected  a  tax  of  ten  cents  per  pound,  to  be  paid  by 
the  manufacturer  thereof,  and  any  fractional  part  of  a 
pound  shall  be  taxed  as  a  pound,  and  that  upon  process  or 
renovated  butter,  wlien  maimfactured  or  sokl  or  removed 
for  consumption  or  use,  there  shall  be  assessed  and  col- 
lected a  tax  of  one-fourtli  of  one  cent  per  pound,  to  be 
paid  by  the  manufacturer  thereof,  and  any  fractional  part 
of  a  pound  shall  be  taxed  as  a  pound.  The  tax  to  be 
levied  by  this  section  sliall  be  represented  by  coupon 
stanijjs,  and  the  provisions  of  (existing  laws  governing 
engraving,  issuing,  sale,  accountability,  effacemcnt,  and 
destruction  of  stamps  relating  to  tobacco  and  snuff,  as 


Violations  of  Inteknal  Revenue  1207 

far  as  applicable,  are  hereby  made  to  apply  to  the  stamps 
provided  by  this  section."'^^ 

§  1638.  Renovated  butter,  how  marked.  All  parts  of  an 
Act  providing  for  an  inspection  of  meats  for  exportation, 
approved  August  thirtieth,  eighteen  hundred  and  ninety, 
and  of  an  Act  to  provide  for  the  inspection  of  live  cattle, 
hogs,  and  the  carcasses  and  products  thereof  which  are 
the  subjects  of  interstate  commerce,  approved  March 
third,  eighteen  hundred  and  ninety-one,  and  of  amend- 
ment thereto  approved  March  second,  eighteen  hundred 
and  ninety-five,  which  are  applicable  to  the  subjects  and 
purposes  described  in  this  section  shall  apply  to  process 
or  renovated  butter.  And  the  Secretary  of  Agriculture  is 
hereby  authorized  and  required  to  cause  a  rigid  sanitary 
inspection  to  be  made,  at  such  times  as  he  may  deem 
proper  or  necessary,  of  all  factories  and  storehouses  where 
process  or  renovated  butter  is  manufactured,  packed,  or 
prepared  for  market,  and  of  the  products  thereof  and 
materials  going  into  the  manufacture  of  the  same.  All 
process  or  renovated  butter  and  packages  containing  the 
same  shall  be  marked  with  the  words  ''Renovated  But- 
ter" or  ''Process  Butter"  and  by  such  other  marks,  labels, 
or  brands  and  in  such  manner  as  may  be  prescribed  by  the 
Secretary  of  Agriculture,  and  no  process  or  renovated 
butter  shall  be  shipped  or  transported  from  its  place  of 
manufacture  into  any  other  State  or  Territoiy  or  the  Dis- 
trict of  Columbia,  or  to  any  foreign  country,  until  it  has 
been  marked  as  provided  in  this  section.  The  Secretary 
of  Agriculture  shall  make  all  needful  regulations  for 
carrying  this  section  into  effect  and  shall  cause  to  be 
ascertained  and  reported  from  time  to  time  the  quantity 
and  quality  of  process  or  renovated  butter  manufactured, 
and  the  character  and  the  condition  of  the  material  from 
which  it  is  made.    And  he  shall  also  have  power  to  ascer- 

71— Sec.  4,  May  9,  1902,  32  Stat. 
194-195-196. 


1208  Ceimixal  Law 

tain  whether  or  not  materials  used  in  the  manufacture 
of  said  process  or  renovated  butter  are  deleterious  to 
health  or  unwholesome  in  the  finished  product,  and  in  case 
such  deleterious  or  unwholesome  materials  are  found  to 
be  used  in  product  intended  for  exportation  or  shipment 
into  other  States  or  in  course  of  exportation  or  shipment 
he  shall  have  power  to  confiscate  the  same.  Any  person, 
firm,  or  corporation  violating  any  of  the  provisions  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor  and  on 
conviction  thereof  shall  be  punished  by  a  fine  of  not  less 
than  fifty  dollars  nor  more  than  five  hundred  dollars  or 
by  imprisonment  not  less  than  one  month  nor  more  than 
six  months,  or  by  both  said  punishments,  in  the  discretion 
of  the  court.'^ 

§  1639.  Wholesale  dealer  in  oleomargarine  must  keep 
book  as  required  by  Commission  of  Internal  Revenue. 
That  wholesale  dealers  in  oleomargarine,  process,  reno- 
vated, or  adulterated  butter  shall  keep  such  books  and 
render  such  returns  in  relation  thereto  as  the  Commis- 
sioner of  Internal  Eevenue,  with  the  Approval  of  the  Sec- 
retary of  the  Treasuaiy,  may,  by  regulation,  require,  and 
such  books  shall  be  open  at  all  times  to  the  inspection  of 
any  intenial-revenue  officer  or  agent.  And  any  person 
who  willfully  violates  any  of  the  provisions  of  this  sec- 
tion shall  for  each  such  offense  bo  fined  not  loss  than 
fifty  dollars  and  not  exceeding  five  hundred  dollars,  and 
imprisoned  not  less  that  thirty  days  nor  more  that  six 
months.'^' 

§  1640.  Food  and  Drug  Act  of  June  30,  1906,  not 
affected  by  Opium  Act.  That  iiolhing  contained  in  this 
Act  shall  l)u  construed  to  impair,  alter,  amend,  or  repeal 
any  of  the  provisions  of  the  Act  of  Congress  approved 
June  thirtieth,  nineteen  hundred  and  six,  entitled  **  An  Act 
for  preventing  the  manufacture,  sale,  or  transportation 

72— Rpc.   r.,   Act   Miiy   9,    1902,   32  73— Sec.   0,   Act   May   9,   1902,  32 

8tat.    196.  Stat.  197. 


Violations  of  Internal  Revenue  1209 

of  adulterated  or  misbranded,  or  poisonous,  or  deleterious 
foods,  drugs,  medicines,  and  liquors,  and  for  regulating 
traffic  therein,  and  for  other  purposes,"  and  any  amend- 
ment thereof,  or  of  the  Act  approved  February  ninth, 
nineteen  hundred  and  nine,  entitled  "An  Act  to  prohibit 
the  importation  and  use  of  opium  for  other  than  medicinal 
purposes, ' '  and  any  amendment  thereof.''* 

§  1641.  Ag-ents  appointed  to  enforce  law  regarding 
opium.  That  the  Commissioner  of  Internal  Revenue,  with 
the  approval  of  the  Secretary  of  the  Treasury,  is  author- 
ized to  appoint  such  agents,  deputy  collectors,  inspectors, 
chemists,  assistant  chemists,  clerks,  and  messengers  in 
the  field  and  in  the  Bureau  of  Internal  Revenue  in  the 
District  of  Columbia  as  may  be  necessary  to  enforce  the 
provisions  of  this  Act.'^ 

§  1642.  Penalty  for  violation.  That  any  person  who 
violates  or  fails  to  comply  with  any  of  the  requirements 
of  this  Act  shall,  on  conviction  be  fined  not  more  than 
$2,000  or  be  imprisoned  not  more  than  five  years,  or  both, 
in  the  discretion  of  the  court.'^ 

§  1643.  Only  registered  person  can  possess  drugs.  That 
it  shall  be  unlawful  for  any  person  not  registered  under 
the  provisions  of  this  Act,  and  who  has  not  paid  the  spe- 
cial tax  provided  for  by  this  Act,  to  have  in  his  possession 
or  under  his  control  any  of  the  aforesaid  drugs;  and  such 
possession  or  control  shall  be  presumptive  evidence  of  a 
violation  of  this  section,  and  also  of  a  violation  of  the  pro- 
vision of  section  one  of  this  Act :  Provided,  That  this  sec- 
tion shall  not  apply  to  any  employee  of  a  registered  per- 
son, or  to  a  nurse  under  the  supervision  of  a  physician, 

74— Sec.  12,  Act  Dec.  17,  1914,  76— Sec.  0,  Act  Dec.  17,  1914,  38 
38  Stat.  790,  Stat.  789. 

75— Sec.  10,  Act  Dec.  17,  1914, 
38  Stat.  789. 


1210  Criminal  Law 

dentist,  or  veterinary  surgeon  registered  under  this  Actj 
having  such  possession  or  control  by  virtue  of  his  employ- 
ment or  occupation  and  not  on  his  own  account ;  or  to  the 
possession  of  any  of  the  aforesaid  drugs  w^liich  has  or 
have  been  prescribed  in  good  faith  by  a  physician,  dentist, 
or  veterinary  surgeon  registered  under  this  Act;  or  to 
any  United  States,  States,  county,  municipal.  District, 
Territorial,  or  insular  officer  or  official  who  has  possession 
of  any  said  drugs,  by  reason  of  his  official  duties,  or  to  a 
warehouseman  holding  possession  for  a  person  registered 
and  who  has  paid  the  taxes  under  this  Act;  or  to  common 
carriers  engaged  in  transporting  such  drugs;  Provided, 
further.  That  it  shall  not  be  necessary  to  negative  any 
of  the  aforesaid  exemptions  in  any  complaint,  informa- 
tion, indictment,  or  other  writ  or  proceeding  laid  or 
brought  under  this  Act;  and  the  burden  of  proof  of  any 
such  exemption  shall  be  upon  the  defendant.'' 

§  1644.  Special  taxes  imposed  by  this  Act  not  inconsist- 
ent with  revised  statutes.  That  all  laws  relating  to  the 
assessment,  collection,  remission,  and  refund  of  internal- 
revenue  taxes  including  section  thirty-two  hundred  and 
twenty-nine  of  the  Revised  Statutes  of  the  United  States, 
so  far  as  applicable  to  and  not  inconsistent  with  the  provi- 
sions of  this  Act,  are  hereby  extended  and  made  appli- 
cable to  the  special  taxes  imposed  by  this  Act.'® 

§  1645.  Provisions  of  this  Act  not  to  apply  to  medicinal 
preparations.  'I'lial  provisions  of  this  Act  sliall  not  be 
construed  to  apply  to  the  sale,  distribution,  giving  away, 
dispensing,  or  possession  of  preparations  and  remedies 
wliich  do  not  contain  more  than  two  grains  of  opium,  or 
iiioic  tli;m  one  rouilli  of  ;t  gi'aiii  of  morphine,  or  more  than 
oiic-eiglith  of  a  grain  oi'  lieroin,  or  more  than  one  grain  of 
codeine,  or  any  sale  or  derivative  of  any  of  tliem  in  one 

77— Sec.  8,  Act  Dec.  17,  1914,  38  78— Sec.  7,  Act  Dec.  17,  1914,  38 

Stat.  789.  Stnt.  789. 


Violations  of  Internal  Revenue  1211 

fluid  ounce,  or,  if  a  solid  or  semisolid  preparation,  in  one 
avoirdupois  ounce;  or  to  liniments,  ointments,  or  other 
preparations  which  are  prepared  for  external  use  only, 
except  liniments,  ointments,  and  other  preparations  which 
contain  cocaine  or  any  of  its  salts,  or  alpha  or  beta  eucaine 
or  any  of  their  salts,  or  any  synthetic  substitute  for  them : 
Provided,  That  such  remedies  and  preparations  are  sold, 
distributed,  given  away,  dispensed,  or  possessed  as  medi- 
cines and  not  for  the  purpose  of  evading  the  intentions 
and  provisions  of  this  Act.  The  provisions  of  this  Act 
shall  not  apply  to  decocainized  coca  leaves  or  prepara- 
tions made  therefrom,  or  to  other  preparations  of  coca 
leaves  which  do  not  contain  cocaineJ^ 

§  1646.  CoUector  to  furnish  certified  copies  of  state- 
ment to  be  filed  in  his  office.  That  the  duplicate-order 
forms  and  the  prescriptions  required  to  be  preserved 
under  the  provisions  of  Section  1649  of  this  Act,  and  the 
statements  or  returns  filed  in  the  office  of  the  collector  of 
the  district,  under  the  provisions  of  Section  1648  of  this 
Act,  shall  be  open  to  inspection  by  officers,  agents,  and 
employees  of  the  Treasury  Department  duly  authorized 
for  that  purpose ;  and  such  officials  of  any  State  or  Terri- 
tory, or  of  any  organized  municipality  therein,  or  of  the 
District  of  Columbia,  or  any  insular  possession  of  the 
United  States,  as  shall  be  charged  with  the  enforcement 
of  any  law  or  municipal  ordinance  regulating  the  sale, 
prescribing,  dispensing,  dealing  in,  or  distribution  of  the 
aforesaid  drugs.  Each  collector  of  internal  revenue  is 
hereby  authorized  to  furnish,  upon  written  request,  cer- 
tified copies  of  any  of  the  said  statements  or  returns  filed 
in  his  office  to  any  of  such  officials  of  any  State  or  Terri- 
tory or  organized  municipality  therein,  or  the  District  of 
Columbia,  or  any  insular  possession  of  the  United  States, 
as  shall  be  entitled  to  inspect  the  sale  statements  or 

79— Sec.    6,    Act    Dec.    17,    1914, 
38  Stat.  789. 


1212  Criminal  Law 

returns  filed  in  the  office  of  the  said  collector,  upon  the 
payment  of  a  fee  of  $1.00  for  each  one  hundred  words  or 
fraction  thereof  in  the  copy  or  copies  so  requested.  Any 
person  who  shall  disclose  the  information  contained  in  the 
said  statements  or  returns  or  in  the  said  duplicate-order 
forms,  except  as  herein  expressly  provided,  and  except  for 
the  purpose  of  enforcing  the  provisions  of  this  Act,  or  for 
the  purpose  of  enforcing  any  law  of  any  State  or  Terri- 
tory or  the  District  of  Columbia,  of  any  insular  possession 
of  the  United  States,  or  ordinance  of  any  organized  muni- 
cipality therein,  regulating  the  sale,  prescribing,  dispens- 
ing, dealing  in,  or  distribution  of  the  aforesaid  drugs, 
shall,  on  conviction,  be  fined  or  imprisoned  as  provided  by 
section  nine  of  this  Act.  Any  collectors  of  internal  rev- 
enue are  hereby  authorized  to  furnish  upon  written  re- 
quest, to  any  person,  a  certified  copy  of  the  names  of  any 
or  all  persons  who  may  be  listed  in  their  respective  collec- 
tion districts  as  special  tax  payers  under  the  provisions 
of  this  Act,  upon  payment  of  a  fee  of  $1.00  for  each  one 
hundred  names  or  fraction  thereof  in  the  copy  so 
requested.®" 

§  1647.  Unlawful  for  any  person  to  ship  or  deliver  drugs 
without  being  registered  and  paying  tax.  That  it  shall 
be  unlawful  for  any  person  who  shall  not  have  registered 
and  paid  the  special  tax  as  required  by  Section  1  of 
this  Act  to  send,  ship,  carry,  or  deliver  any  of  the  afore- 
said drugs  from  any  State  or  Territory  or  the  District  of 
Columbia,  or  any  insular  possession  of  the  United  States, 
to  any  person  in  any  oilier  State  or  Territory  or  the  Dis- 
trict of  Columbia  or  any  insular  possession  of  the  Ihiited 
States:  Provided,  Tlial  nothing  contained  in  tliis  section 
shall  apply  to  coiiinion  carriers  engaged  in  transporting 
the  aforesaid  drugs,  or  to  any  emi)loyec  acting  within 
the  scope  of  his  employment,  of  any  person  who  shall 

80— Sec.  5,  Act  Dec.  17,  1914,  38 
fltat.  788. 


Violations  of  Internal.  Revenue  1213 

have  registered  and  paid  the  special  tax  as  required  by 
section  one  of  this  Act,  or  to  any  person  who  shall  deliver 
any  such  drug  which  has  been  prescribed  or  dispensed  by 
a  physician,  dentist,  or  veterinarian  required  to  register 
under  the  terms  of  this  Act,  who  has  been  employed  to 
prescribe  for  the  particular  patient  receiving  such  drug, 
or  to  any  United  States,  State,  county,  municipal.  Dis- 
trict, Territorial,  or  insular  officer  or  official  acting  within 
the  scope  of  his  official  duties. ^^ 

§  1648.  Must  render  true  and  correct  statement  to  col- 
lector concerning  drugs.  That  any  person  who  shall  be 
registered  in  any  internal-revenue  district  under  the  pro- 
visions of  section  one  of  this  Act  shall,  whenever  required 
so  to  do  by  the  collector  of  the  district,  render  to  the 
said  collector  a  true  and  correct  statement  or  return, 
verified  by  affidavit,  setting  forth  the  quantity  of  the 
aforesaid  drugs  received  by  him  in  said  internal-revenue 
district  during  such  period  immediately  preceding  the 
demand  of  the  collector,  not  exceeding  three  months,  as 
the  said  collector  may  fix  and  determine;  the  names  of 
the  persons  from  whom  the  said  drugs  were  received; 
the  quantity  in  each  instance  received  from  each  of  such 
persons,  and  the  date  when  received.®'^ 

§  1649.  Written  order  from  physician,  etc.,  required  to 
obtain  drugs.  That  it  shall  be  unlawful  for  any  person  to 
sell,  barter,  exchange,  or  give  away  any  of  the  aforesaid 
drugs  except  in  pursuance  of  a  written  order  of  the  per- 
son to  whom  such  article  is  sold,  bartered,  exchanged,  or 
given,  on  a  form  to  be  issued  in  blank  for  that  purpose 
by  the  Commissioner  of  Internal  Revenue.  Every  per- 
son who  shall  accept  any  such  order,  and  in  pursuance 
thereof  shall  sell,  barter,  exchange,  or  give  away  any  of 
the  aforesaid  drugs,  shall  preserve  such  order  for  a  period 

81— Sec.    4,    Act    Dec.    17,    19H,  82— Sec.    3,    Act    Dec.    17,    1914, 

38  Stat.   788.  38  Stat.  787. 


1214  Criminal  Law 

of  two  years  in  such  a  way  as  to  be  readily  accessible  to 
inspection  by  any  officer,  agent,  or  employee  of  the  Treas- 
ury Department  duly  authorized  for  that  purpose,  and 
the  State,  Territorial,  District,  municipal,  and  insular 
officials  named  in  Section  1646  of  this  Act.  Every  person 
who  shall  give  an  order  as  herein  provided  to  any  other 
person  for  any  of  the  aforesaid  drugs  shall,  at  or  before 
the  time  of  giving  such  order,  make  or  cause  to  be  made 
a  duplicate  thereof  on  a  form  to  be  issued  in  blank  for 
that  purpose  by  the  Commissioner  of  Internal  Revenue, 
and  in  case  of  the  acceptance  of  such  order,  shall  pre- 
serve such  duplicate  for  said  period  of  two  years  in  such 
a  way  as  to  be  readily  accessible  to  inspection  by  the 
officers,  agents,  employees,  and  officials  hereinbefore  men- 
tioned.   Nothing  contained  in  this  section  shall  apply — 

(a)  To  the  dispensing  or  distribution  of  any  of  the 
aforesaid  drugs  to  a  patient  by  a  physician,  dentist,  or 
veterinary  surgeon  registered  under  this  Act  in  the 
courts  of  his  professional  practice  only :  Provided,  That 
such  physician,  dentist,  or  veterinaiy  surgeon  shall  keep 
a  record  of  all  such  drugs  dispensed  or  distributed,  show- 
ing the  amount  dispensed  or  distributed  to  a  patient  upon 
whom  such  physician,  dentist  or  veterinary  surgeon  shall 
personally  attend;  and  such  record  shall  be  kept  for  a 
period  of  two  years  from  the  date  of  dispensing  or  dis- 
tributing such  drugs,  subject  to  inspection,  as  provided  in 
this  Act. 

(b)  To  tlio  sale,  dispensing,  or  distribution  of  any  of 
the  aforesaid  drugs  by  a  dealer  to  a  consumer  under  and 
in  pursuance  of  a  written  ))rcscription  issued  by  a  physi- 
cian, dentist,  or  veterinary  surgeon  registered  under  this 
Act:  Provided,  however.  That  such  prescription  shall 
be  dated  as  of  the  day  on  which  signed  and  shall  be 
signed  by  the  physician,  dentist,  or  veterinaiy  surgeon 
who  shall  have  issued  the  same:  And  provided  further. 
That  sucli  dealer  shall  preserve  such  prescription  for 
a  p<'rio(l  of  two  years  from  Ihe  day  f>n  which  such  pre- 


Violations  of  Internal  Revenue  1215 

scription  is  filled  in  such  a  way  as  to  be  readily  accessible 
to  inspection  by  the  officers,  agents,  employees,  and  offi- 
cials hereinbefore  mentioned. 

(c)  To  the  sale,  exportation,  shipment,  or  delivery  of 
any  of  the  aforesaid  drugs  by  any  person  within  the 
United  States  or  any  Territory  or  the  District  of  Co- 
lumbia or  any  of  the  insular  possessions  of  the  United 
States  to  any  person  in  any  foreign  countiy,  regulating 
their  entry  in  accordance  with  such  regulations  for  im- 
portation thereof  into  such  foreign  country  as  are  pre- 
scribed by  said  country,  such  regulations  to  be  promul- 
gated from  time  to  time  by  the  Secretary  of  State  of  the 
United  States. 

(d)  To  the  sale,  barter,  exchange,  or  giving  away  of 
any  of  the  aforesaid  drugs  to  any  officer  of  the  United 
States  Government  or  of  any  State,  territorial,  district, 
county,  or  municipal  or  insular  government  lawfully  en- 
gaged in  making  purchases  thereof  for  the  various  de- 
partments of  the  Army  and  Navy,  the  Public  Health 
Service,  and  for  Government,  State,  territorial,  district, 
county,  or  municipal  or  insular  hospitals  or  prisons. 

The  Commissioner  of  Internal  Revenue,  with  the  ap- 
proval of  the  Secretary  of  the  Treasury,  shall  cause  suit- 
able forms  to  be  prepared  for  the  purposes  above  men- 
tioned, and  shall  cause  the  same  to  be  distributed  to 
collectors  of  internal  revenue  for  sale  by  them  to  those 
persons  who  shall  have  registered  and  paid  the  special 
tax  as  required  by  Section  1650  of  this  Act  in  their  dis- 
tricts, respectively;  and  no  collector  shall  sell  any  of  such 
forms  to  any  persons  other  than  a  person  who  has  regis- 
tered and  paid  the  special  tax  as  required  by  section  one 
of  this  Act  in  his  district.  The  price  at  which  such 
forms  shall  be  sold  by  said  collectors  shall  be  fixed  by 
the  Commissioner  of  Internal  Revenue,  with  the  approval 
of  the  Secretary  of  the  Treasury,  but  shall  not  exceed 
the  sum  of  $1.00  per  hundred.  Every  collector  shall  keep 
an  account  of  the  number  of  such  forms  sold  by  him,  the 


1216  Criminal  Law 

name  of  the  purchaser  thereof  to  be  plainly  written  or 
stamped  thereon  before  delivering  the  same;  and  no  per- 
son other  than  such  purchaser  shall  use  any  of  said  forms 
bearing  the  name  of  such  purchaser  for  the  purpose  of 
procuring  any  of  the  aforesaid  drugs,  or  furnish  any  of 
the  forms  bearing  the  name  of  such  purchaser  to  any 
person  with  intent  thereby  to  procure  the  shipment  or 
delivery  of  any  of  the  aforesaid  dimgs.  It  shall  be  unlaw- 
ful for  any  person  to  obtain  by  means  of  said  order  fonns 
any  of  the  aforesaid  drugs  for  any  purpose  other  than 
the  use,  sale,  or  distribution  thereof  by  him  in  the  con- 
duct of  a  lawful  business  in  said  drugs  or  in  the  legitimate 
practice  of  his  profession. 

The  provisions  of  this  Act  shall  apply  to  the  United 
States,  the  District  of  Columbia,  the  Territory  of  Alaska, 
the  Territoiy  of  Hawaii,  the  insular  possessions  of  the 
United  States,  and  the  Canal  Zone.  In  Porto  Rico  and 
the  Philippine  Islands  the  administration  of  this  Act,  the 
collection  of  the  said  special  tax,  and  the  issuance  of 
the  order  forms  specified  in  Section  1649  shall  be  per- 
formed by  the  appropriate  internal-revenue  officers  of 
those  governments,  and  all  revenues  collected  hereunder 
in  Porto  Rico  and  the  Philippine  Islands  shall  accrue  in- 
tact to  the  general  governments  thereof,  respectively.  The 
courts  of  first  instance  in  the  Philippine  Islands  shall 
possess  and  exercise  jurisdiction  in  all  cases  arising  under 
this  Act  in  said  islands.  The  President  is  authorized  and 
directed  to  issue  such  Executive  orders  as  will  cany  into, 
effect  in  the  Canal  Zone  tlie  intent  and  puri)ose  of  this 
Act  by  providing  for  the  registration  and  the  imposition 
of  a  special  tax  upon  all  persons  in  the  Canal  Zone  who 
y)roduce,  import,  compound,  deal  in,  dispense,  sell,  dis- 
tribnto,  or  give  away  opium  or  coca  leaves,  their  salts, 
derivatives,  or  preparations.'* 

83— Sec.  2.  Act  Dec.  17,  1914,  38 

Stilt.    7M. 


Violations  ok  Internal  Revenue  1217 

§  1650.  Any  person  must  pay  tax  to  manufacture,  im- 
port, etc.,  opium  or  coca  leaves.  That  on  and  after  the 
first  day  of  March,  nineteen  hundred  and  fifteen,  every 
person  who  produces,  imports,  manufactures,  compounds, 
deals  in,  dispenses,  sells,  distributes,  or  gives  away 
opium  or  coca  leaves  or  any  compound,  manufacture,  sale, 
derivative,  or  preparation  thereof,  shall  register  with 
the  collector  of  internal  revenue  of  the  district  his  name 
or  style,  place  of  business,  and  place  or  places  where 
such  business  is  to  be  carried  on:  Provided,  That  the 
office  or  if  none,  then  the  residence  of  any  person  shall 
be  considered  for  the  purposes  of  this  Act  to  be  his  place 
of  business.  At  the  time  of  such  registry  and  on  or  be- 
fore the  first  day  of  July,  annually  thereafter,  every  per- 
son who  produces,  imports,  manufactures,  compounds, 
deals  in,  dispenses,  sells,  distributes  or  gives  away  a.ny 
of  the  aforesaid  diTigs  shall  pay  to  the  said  collector  a 
special  tax  at  the  rate  of  $1.00  per  annum:  Provided, 
That  no  employee  of  any  person  who  produces,  imports, 
manufactures,  compounds,  deals  in,  dispenses,  sells,  dis- 
tributes, or  gives  away  any  of  the  aforesaid  drugs,  acting 
within  the  scope  of  his  employment,  shall  be  required  to 
register  or  to  pay  the  special  tax  provided  by  this  sec- 
tion: Provided  further.  That  the  person  who  employs 
him  shall  have  registered  and  paid  the  special  tax  as 
required  by  this  section:  Provided  further.  That  officers 
of  the  United  States  Government  who  are  lawfully  en- 
gaged in  making  purchases  of  the  above-named  drugs 
for  the  various  departments  of  the  Army  and  Navy,  the 
Public  Health  Service,  and  for  Government  hospitals  and 
prisons,  and  offices  of  any  State  government,  or  of  any 
county  or  municipality  therein,  who  are  lawfully  en- 
gaged in  making  purchases  of  the  above  named  drugs 
for  State,  county,  or  municipal  hospitals  or  prisons,  and 
officials  of  any  Territory  or  insular  possession  or  the 
District  of  Columbia  or  of  the  United  States  who  are 
lawfully  engaged  in  making  purchases  of  the   above- 

C.  L.— 77 


1218  Criminal  Law 

named  drugs  for  hospitals  or  prisons  therein  shall  not 
be  required  to  register  and  pay  the  special  tax  as  herein 
required. 

It  shall  be  unlawful  for  any  person  required  to  register 
under  the  tenns  of  this  Act  to  produce,  import,  manufac- 
ture, compound,  deal  in,  dispense,  sell,  distribute,  or  give 
away  any  of  the  aforesaid  drugs  wdthout  having  regis- 
tered ancl  paid  the  special  tax  provided  for  in  this  section. 

That  the  word  ''person"  as  used  in  this  Act  shall  be 
constmed  to  mean  and  include  a  partnership,  associa- 
tion, company,  or  corporation,  as  well  as  a  natural  per- 
son; and  all  provisions  of  existing  law  relating  to  special 
taxes,  so  far  as  applicable,  including  the  provisions  of 
section  thirty-two  hundred  and  forty  of  the  Eevised 
Statutes  of  the  United  States  are  hereby  extended  to  the 
special  tax  herein  imposed. 

That  the  Commissioner  of  Internal  Revenue,  with  the 
approval  of  the  Secretary  of  the  Treasury,  shall  make  all 
needful  rules  and  regulations  for  carrying  the  provisions 
of  this  Act  into  effect.^* 

§  1651.  General  Revenue  Act,  July  20,  1868— Fraudu- 
lent gauging",  etc.  Every  ganger  wln^  makes  any  false  or 
fraudulent  inspection,  gauging,  or  proof  shall  pay  a  pen- 
alty of  one  thousand  dollars,  and  be  fined  not  less  than 
five  hundred  dollars  nor  more  than  five  thousand  dollars, 
and  imprisoned  not  less  than  three  months  nor  more  thaii 
three  years.*^ 

84— Sec.     1,    Dec.     17,     1914,    38  85— E.  S.  3292,  Act  July  20,  18G8, 

Stat.  785.  15  Stat.  147. 


CHAPTER  LXXX 

THE  SLAVE  TRADE  AND  PEONAGE 


CHAPTER  TEN 


Penal  Code  Act,  March  4,  1909 


1654.  Confining  or  detaining  slaves 

on  board  vessel. 

1655.  Seizing     slaves     on     foreign 

shore. 

1656.  Bringing     slaves     into     the 

United  States. 

1657.  Equipping   vessels    for   slave 

trade. 

1658.  Transporting  persons   to   be 

held  as  slaves. 

1659.  Hovering      on      coast      with 

slaves   on  board. 

1660.  Ser^ung   in    vessels    engaged 

in  the  slave  trade. 

1661.  Receiving  or   carrying  away 

any  person  to  be   sold   or 
held   as  a  slave. 

1662.  Equipping,    etc.,    vessel    for 

slave   trade. 

1663.  Penalty  on  persons  building, 

equipping,  etc. 

1664.  Forfeiture    of    vessel    trans- 

porting slaves. 

1665.  Receiving   persons   on   board 

to  be  sold  as  slaves. 

1666.  Vessels    found    hovering    on 

coast. 


§  1667.  Forfeiture  of  interest  in 
vessels  transporting  slaves. 

§  1668.  Seizure  of  vessels  engaged 
in  the  slave  trade. 

§  1669.  Proceeds  of  condemned  ves- 
sel, how   distributed. 

§  1670.  Disposal  of  persons  found  on 
board    seized   vessel. 

§  1671.  Apprehension  of  officers  and 
crew. 

§  1672.  Removal  of  persons  deliv- 
ered from  seized  vessels. 

§  1673.  To  what  port  captured  ves- 
sels sent. 

§  1674.  When  owners  of  foreign  ves- 
sels  shall    give   bond. 

§  1675.  Instructions  to  commanders 
of  armed   vessels. 

§  1676.  Kidnapping. 

§  1677.  Holding  or  returning  per- 
sons   to    peonage. 

§  1678.  Obstructing  enforcement  of 
preceding  section. 

§  1679.  Bringing  kidnapped  persons 
into  United  States. 


§  1654.  Confining  or  detaining-  slaves  on  board  vessel. 
Sec.  246.  Whoever,  being  of  the  crew  or  ship's  company 
of  any  foreign  vessel  engaged  in  the  slave  trade,  or  being 
of  the  crew  or  ship's  company  of  any  vessel  owned 
wholly  or  in  part,  or  navigated  for  or  in  behalf  of  any 
citizen  of  the  United  States,  forcibly  confines  or  detains 

1219 


1220  Criminal  Law 

on  board  such  vessel  any  person  as  a  slave,  or,  on  board 
such  vessel,  offers  or  attempts  to  sell  as  a  slave  any  such 
person,  or  on  the  high  seas,  or  anywhere  on  tide  water, 
transfers  or  delivers  to  any  other  vessel  any  such  person 
with  intent  to  make  such  person  a  slave,  or  lands  or  de- 
livers on  shore  from  on  board  such  vessel  any  person 
with  intent  to  make  sale  of,  or  having  previously  sold 
such  person  as  a  slave,  is  a  pirate,  and  shall  be  imprisoned 
for  life. 

§  1655.  Seizing  slaves  on  foreign  shore.  Sec.  247.  Who- 
ever, being  of  the  crew  or  ship 's  companj^  of  any  foreign 
vessel  engaged  in  the  slave  trade,  or  being  of  the  crew 
or  ship's  company  of  any  vessel  owned  in  whole  or  part, 
or  navigated  for,  or  in  behalf  of,  any  citizen  of  the  United 
States,  lands  from  such  vessel,  and  on  any  foreign  shore, 
seizes  any  person  with  intent  to  make  such  person  a 
slave,  or  decoys,  or  forcibly  brings,  or  carries  or  receives 
such  person  on  board  such  vessel,  with  like  intent,  is  a 
pirate,  and  shall  be  imprisoned  for  life. 

§  1656.  Bringing  slaves  into  the  United  States.  Sec. 
248.  Whoever  brings  within  the  jurisdiction  of  the  United 
States,  in  any  manner  whatsoever,  any  person  from  any 
foreign  kingdom  or  country,  or  from  sea,  or  holds,  sells, 
or  otherwise  disposes  of,  any  person  so  brought  in,  as 
a  shivo,  or  to  be  held  to  service  or  labor,  shall  be  fined 
not  more  than  ten  thousand  dollars,  ono-lialf  to  the  use 
of  tlie  United  States  and  the  other  half  to  the  use  of 
the  party  who  prosecutes  and  indictment  to  effect;  and, 
moreover,  sliall  l)e  imprisoned  not  more  than  seven  years. 

§  1657.  Equipping  vessels  for  slave  trade.  Sec.  249. 
Whoever  builds,  iits  out,  e(iuii)s,  loads,  or  otlierwise  pre- 
pares, or  sends  away,  eitlicr  as  master,  factor,  or  owner, 
any  vessel,  in  any  port  or  place  witliin  the  jurisdiction 
r.r  the  ('nit I'd  States,  oi'  causes  such  vessel  to  sail  from 
any  poit  or  place  wliatsoever,  witliin  such  jurisdiction, 
for  the  purpose  of  procuring  any  person  from  any  foreign 


The  Slave  Thade  and  Peonage  1221 

kingdom  or  country  to  be  transported  to  any  port  or 
place  whatsoever,  to  be  held,  sold,  or  otherwise  disposed 
of  as  a  slave,  or  held  to  service  or  labor,  shall  be  fined  not 
more  than  five  thousand  dollars,  one  half  to  the  use  of 
the  United  States  and  the  other  half  to  the  use  of  the 
person  prosecuting  the  indictment  to  effect;  and  shall, 
moreover,  be  imprisoned  not  more  than  seven  years. 

§  1658.  Transporting  persons  to  be  held  as  slaves.  Sec. 

250.  Whoever,  within  the  jurisdiction  of  the  United 
States,  takes  on  board,  receives,  or  transports  from  any 
foreign  kingdom  or  country,  or  from  sea,  any  person  in 
any  vessel,  for  the  purpose  of  holding,  selling,  or  other- 
wise disposing  of  such  person  as  a  slave,  or  to  be  held  to 
service  or  labor,  shall  be  punished  as  prescribed  in  the 
section  last  preceding. 

§  1659.  Hovering  on  coast  with  slaves  on  board.  Sec. 

251.  Whoever,  being  the  captain,  master,  or  commander 
of  any  vessel  found  in  any  river,  port,  bay,  harbor,  or  on 
the  high  seas,  within  the  jurisdiction  of  the  United 
States,  or  hovering  on  the  coast  thereof,  having  on  board 
any  person,  for  the  purpose  of  selling  such  person  as  a 
slave,  or  with  intent  to  land  such  person  for  any  such 
purpose,  shall  be  fined  not  more  than  ten  thousand  dol- 
lars and  imprisoned  not  more  than  four  years. 

§  1660.  Serving  in  vessels  engaged  in  slave  trade.  Sec. 

252.  Whoever,  being  a  citizen  of  the  United  States,  or 
other  person  residing  therein,  voluntarily  serves  on  board 
of  any  vessel  employed  or  made  use  of  in  the  transporta- 
tion of  slaves  from  any  foreign  country  or  place  to  an- 
other, shall  be  fined  not  more  than  two  thousand  dollars 
and  imprisoned  not  more  than  two  years. 

§  1661.  Receiving  or  carrying  away  any  person  to  be 
sold  or  held  as  a  slave.  Sec.  253.  Wlioever,  being  the 
master  or  owner  or  person  having  charge  of  any  vessel, 


1222  Criminal  Law 

receives  on  board  any  other  person,  with  the  knowledge 
or  intent  that  such  person  is  to  be  carried  from  any  place 
subject  to  the  jurisdiction  of  the  United  States  to  any 
other  place,  to  be  held  or  sold  as  a  slave,  or  carries  away 
from  any  place  subject  to  the  jurisdiction  of  the  United 
States  any  such  person,  with  the  intent  that  he  may  be 
so  held  or  sold  as  a  slave,  shall  be  fined  not  more  than 
five  thousand  dollars,  or  imprisoned  not  more  than  five 
years,  or  both. 

§  1662.  Equipping,  etc.,  vessel  for  slave  trade.  Sec.  254. 
No  person  shall,  for  himself  or  for  another,  as  master, 
factor,  or  owner,  build,  fit,  equip,  load,  or  otherwise  pre- 
pare any  vessel  in  any  port  or  place  within  the  jurisdic- 
tion of  the  United  States,  or  cause  any  vessel  to  sail  from 
any  port  or  place  within  the  jurisdiction  of  the  United 
States  for  the  purpose  of  procuring  any  person  from  any 
foreign  kingdom,  place,  or  country  to  be  transported  to 
any  port  or  place  whatsoever,  to  be  held,  sold,  or  other- 
wise disposed  of,  as  a  slave,  or  to  be  held  to  service  or 
labor;  and  every  vessel  so  built,  fitted  out,  equipped, 
laden,  or  otherwise  prepared,  with  her  tackle,  apparel, 
furniture,  and  lading,  shall  be  forfeited;  one  moiety  to 
tlie  use  of  the  United  States  and  the  other  to  the  use  of 
the  person  who  sues  for  the  forfeiture  and  prosecutes  the 
same  to  effect. 

§  1663.  Penalty  on  person  building,  equipping,  etc. 
Sec.  255.  Whoever  so  builds,  fits  out,  equips,  loads,  or 
otlierwise  prepares  or  sends  away  any  vessel,  knowing  or 
intending  that  tlie  same  shall  l)e  emi)loyed  in  such  trade 
or  ])iisiness,  contrary  lo  tlic  provisions  of  llic  section  hist 
preceding,  or  in  any  way  aids  or  abets  therein,  sliall, 
besides  tlie  forfeiture  of  the  vessel,  pay  the  sum  of  two 
tliousaiid  dollars;  one  moiety  thereof  to  tlie  use  of  the 
United  States  ;in<l  the  other  moiety  thereof  to  the  use  of 


The  Slave  Trade  and  Peonage  1223 

the  person  who  sues  for  and  prosecutes  the  same  to 
effect. 

§  1664.  Forfeiture  of  vessel  transporting-  slaves.  Sec. 
256.  Every  vessel  emplojxd  in  carrying  on  the  slave 
trade  or  on  which  is  received  or  transported  any  person 
from  any  foreign  kingdom  or  country,  or  from  sea,  for 
the  purpose  of  holding,  selling,  or  otherwise  disposing  of 
such  person  as  a  slave,  or  of  holding  such  person  to  serv- 
ice or  labor,  shall,  together  with  her  tackle,  apparel,  fur- 
niture, and  the  goods  and  effects  which  may  be  found  on 
board,  or  which  may  have  been  imported  thereon  in  the 
same  voyage,  be  forfeited;  one  moiety  to  the  use  of  the 
United  States  and  the  other  to  the  use  of  the  person  who 
sues  for  and  prosecutes  the  forfeiture  to  effect. 

§  1665.  Receiving  persons  on  board  to  be  sold  as  slaves. 
Sec.  257.  Whoever,  being  a  citizen  of  the  United  States, 
takes  on  board,  receives,  or  transports  any  person  for 
the  purpose  of  selling  such  person  as  a  slave  shall,  in 
addition  to  the  forfeiture  of  the  vessel,  pay  for  each  per- 
son so  received  on  board  or  transported  the  sum  of  two 
hundred  dollars,  to  be  recovered  in  any  court  of  the 
United  States;  the  one  moiety  thereof  to  the  use  of  the 
United  States  and  the  other  moiety  to  the  use  of  the  per- 
son who  sues  for  and  prosecutes  the  same  to  effect. 

§  1666.  Vessels  found  hovering  on  coast.  Sec.  258. 
Every  vessel  which  is  found  in  any  river,  port,  bay,  or 
harbor,  or  on  the  high  seas,  within  the  jurisdiction  of 
the  United  States,  or  hovering  on  the  coasts  thereof,  and 
having  on  board  any  person,  with  intent  to  sell  such 
person  as  a  slave,  or  with  intent  to  land  the  same  for 
that  purpose,  either  in  the  United  States  or  elsewhere, 
shall,  together  with  her  tackle,  apparel,  furniture,  and 
the  goods  or  effects  on  board  of  her,  be  forfeited  to  the 
United  States. 


1224  Crimixal  Law 

§  1667.  Forfeiture  of  interest  in  vessels  transporting 
slaves.  Sec.  259.  It  shall  be  unlawful  for  any  citizen  of 
the  United  States,  or  other  person  residing  therein,  or 
under  the  jurisdiction  thereof,  directly  or  indirectly  to 
hold  or  have  any  right  or  property  in  any  vessel  employed 
or  made  use  of  in  the  transportation  or  carrying  of  slaves 
from  one  foreign  country  or  place  to  another,  and  any 
such  right  or  property  shall  be  forfeited,  and  may  be 
libeled  and  condemned  for  the  use  of  the  person  suing 
for  the  same.  Whoever  shall  violate  the  prohibition  of 
this  section  shall  also  forfeit  and  pay  a  sum  of  money 
equal  to  double  the  value  of  his  right  or  property  in  such 
vessel;  and  shall  also  forfeit  a  sum  of  money  equal  to 
double  the  value  of  the  interest  he  had  in  the  slaves  which 
at  any  time  may  be  transported  or  carried  in  such  vessels. 

§  1668.  Seizure  of  vessels  engaged  in  the  slave  trade. 
Sec.  260.  The  President  is  authorized,  when  he  deems  it 
expedient,  to  man  and  employ  any  of  the  armed  vessels 
of  the  United  States  to  cruise  wherever  he  may  judge 
attempts  are  being  made  to  cany  on  the  slave  trade,  by 
citizens  or  residents  of  the  United  States,  in  contravention 
of  laws  prohibitory  of  the  same;  and,  in  such  case,  he 
shall  instruct  the  commanders  of  such  armed  vessels  to 
seize,  take,  and  bring  into  any  port  of  the  United  States, 
to  be  proceeded  against  according  to  law,  all  American 
vessels,  wheresoever  found,  which  may  have  on  board, 
or  which  may  be  intended  for  the  purpose  of  taking  on 
l)()ar(l,  or  of  transporting,  or  may  have  transported  any 
person,  in  viohition  of  the  provisions  of  any  Act  of  Con- 
gress prolii biting  tlie  traffic  in  slaves. 

§  1669.  Proceeds  of  condenmed  vessels,  how  distrib- 
uted. Sec  2(il.  TUv.  proceeds  of  all  vessels,  their  tackle, 
ajiparel,  aiid  furniture,  and  the  goods  and  effects  on  board 
of  tlicni,  which  arc  so  seized,  prosecuted,  and  condemned, 
shall  be  paid  into  llif  Trcasuiy  of  the  Uiiilcd  Slates. 


The  Slave  Trade  and  Peonage  ]2lM 

§  1670.  Disposal  of  persons  found  on  boEird  seized  ves- 
sel. Sec.  262.  The  oflicers  of  the  vessel  making  such 
seizure  shall  safely  keep  every  person  found  on  board  of 
any  vessel  so  seized,  taken,  or  brought  into  port  for  con- 
demnation, and  shall  deliver  every  such  person  to  the 
marshal  of  the  district  into  which  he  may  be  brought,  if 
into  a  port  of  the  United  States,  or  if  elsewhere,  to  such 
person  as  may  be  lawfully  appointed  by  the  President, 
in  the  manner  directed  by  law,  transmitting  to  the  Pres- 
ident, as  soon  as  may  be  after  such  delivery,  a  descrip- 
tive list  of  such  persons,  in  order  that  he  may  give  direc 
tions  for  the  disposal  of  them. 

§  1671.  Apprehension  of  officers  and  crew.  Sec.  263. 
The  commanders  of  such  commissioned  vessels  shall  cause 
to  be  apprehended  and  taken  into  custody  eveiy  person 
found  on  board  of  such  offending  vessel  so  seized  and 
taken,  being  of  the  officers  or  crew  thereof,  and  him 
convey,  as  soon  as  conveniently  may  be,  to  the  civil 
authority  of  the  United  States,  to  be  proceeded  against 
in  due  course  of  law. 

§  1672.  Removal  of  persons  delivered  from  seized  ves- 
sels. Sec.  264.  The  President  is  authorized  to  make  such 
regulations  and  arrangements  as  he  may  deem  expedient 
for  the  safekeeping,  support,  and  removal  beyond  the 
limits  of  the  United  States  of  all  such  persons  as  may 
be  so  delivered  and  brought  within  its  jurisdiction. 

§  1673.  To  what  port  captured  vessels  sent.  Sec.  265. 
It  shall  be  the  duty  of  the  commander  of  any  armed  vessel 
of  the  United  States,  whenever  he  makes  any  capture 
under  the  preceding  provisions,  to  bring  the  vessel  and 
her  cargo,  for  adjudication,  into  some  port  of  the  State, 
Territory,  or  District  to  which  such  vessel  so  captured 
may  belong,  if  he  can  ascertain  the  same;  if  not,  then 
into  any  convenient  port  of  the  United  States. 


1226  Ceimixal  Law 

§  1674.  When  owners  of  foreign  vessels  shall  give  bond. 
Sec.  266.  Every  owner,  master,  or  factor  of  any  foreign 
vessel  clearing  from  any  port  within  the  jurisdiction  of 
the  United  States,  and  suspected  to  be  intended  for  the 
slave  trade,  and  the  suspicion  being  declared  to  the  officer 
of  the  customs  by  any  citizen,  on  oath,  and  such  informa- 
tion being  to  the  satisfaction  of  the  officer,  shall  first 
give  bond,  with  sufficient  sureties,  to  the  Treasurer  of 
the  United  States  that  none  of  the  natives  of  any  other 
foreign  countiy  or  place  shall  be  taken  on  board  such 
vessel  to  be  transported  or  sold  as  slaves  in  any  other 
foreign  port  or  place  whatever,  within  nine  months  there- 
after. 

§  1675.  Instructions  to  commanders  of  armed  vessels. 
Sec.  267.  The  President  is  authorized  to  issue  instructions 
to  the  commanders  of  the  armed  vessels  of  the  United 
States,  directing  them,  whenever  it  is  practicable,  and 
under  such  rules  and  regulations  as  he  may  prescribe,  to 
proceed  directly  to  the  country  from  which  they  were 
taken,  and  there  hand  over  to  the  agent  of  the  United 
States  all  such  persons,  delivered  from  on  board  vessels 
seized  in  the  prosecution  of  the  slave  trade;  and  they 
shall  afterward  l)iiiig  the  captured  vessels  and  persons 
engaged  in  prosecuting  such  trade  to  the  United  States 
for  trial  and  adjudication. 

§  1676.  Kidnapping.  Sec.  268.  Whoever  ki<]naps  or 
carries  away  any  other  person,  with  the  inteiil  that  sucli 
other  person  be  sold  into  involuntary  servituck',  or  hokl 
as  a  slave;  or  who  entices,  persuades,  or  iiidiiccs  any  otlier 
person  1o  go  on  boai'd  any  vessel  or  to  any  ollici-  phice 
witli  tlu!  intent  tliat  he  may  be  made  or  held  as  a  slave,  or 
sent  out  of  the  country  to  be  so  made  or  held;  or  who 
in  any  way  knowingly  aids  in  causing  any  other  person 
to  he  held,  sold,  or  canifMl  away  to  be  held  or  sold  as  a 


The  Slave  Trade  and  Peonage  1227 

slave,  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  more  than  five  years,  or  both. 

§  1677.  Holding"  or  returning  person  to  peonage.  Sec. 
269.  Whoever  holds,  arrests,  returns,  or  causes  to  be  held, 
arrested,  or  returned,  or  in  any  manner  aids  in  the  arrest 
or  return  of  any  person  to  a  condition  of  peonage,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  impris- 
oned not  more  than  five  years,  or  both. 

§  1678.  Obstructing  execution  of  above.  Sec.  270.  Who- 
ever obstructs,  or  attempts  to  obstruct,  or  in  any  way 
interferes  with  or  prevents  the  enforcement  of  the  section 
last  preceding,  shall  be  liable  to  the  penalties  therein 
prescribed. 

§  1679.  Bringing  kidnapped  persons  into  United  States. 
Sec.  271.  Whoever  shall  knowingly  and  wilfully  bring 
into  the  United  States  or  any  place  subject  to  the  juris- 
diction thereof,  any  person  inveigled  or  forcibly  kid- 
napped in  any  other  country,  with  intent  to  hold  such 
person  so  inveigled  or  kidnapped  in  confinement  or  to 
any  involuntary  servitude;  or  whoever  shall  knowingly 
and  wilfully  sell,  or  cause  to  be  sold,  into  any  condition 
of  involuntary  servitude,  any  other  person  for  any  term 
whatever;  or  whoever  shall  knowingly  and  wilfully  hold 
to  involuntary  servitude  any  person  so  bought  or  sold, 
shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  five  years. 


CHAPTER  LXXXI 

SEARCH  WARRANTS 


§  1682.  Search  warrant,  by  whom  is- 
sued. 

§   1683.  Grounds  for  issuing. 

§  1684.  Must  issue  upon  probable 
cause. 

§  1685.  Officer  must  require  affi- 
davits. 

§  1686.  Affidavits  .must  set  forth 
grounds   for. 

§  1687.  If  grounds  set  forth  are  suf- 
ficient   officer    must   issue. 

§  1688.  No  one  can  serve  warrant 
unless  directed  in  instru- 
ment. 

§  1689.  Officer  may  break  doors  and 
windows  in  serving. 

§  1690.  May  break  outer  and  inner 
door  to  liberate  assistant. 

§  1691.  Judge  must  insert  that  serv- 
ice of  warrant  be  served 
in  day  time. 

§  1692.  Warrant  must  be  returned 
in  ten  days. 

§  1693.  When  property  is  taken  copy 
of  warrant  must  be  given. 


§  1694.  Warrant  must  be  returned 
forthwith  with  written  in- 
ventory. 

§  1695.  Judge  or  commissioner  must 
deliver  copy  of  inventory. 

§  1696.  If  things  alleged  are  con- 
troverted must  take  testi- 
mony. 

§  1697.  If  property  is  not  same  de- 
scribed in  warrant  must  be 
restored. 

§  1698.  All  papers  must  be  filed  with 
the  clerk. 

§  1699.  Punishment  for  resisting  is- 
suance and  service. 

§  1700.  Perjury  to  make  fake  af- 
fidavit and  oath. 

§  1701.  Punishment  for  maliciously 
procuring. 

§  1702.  Punishment  of  officer  exceed- 
ing  authority. 

§  1703.  As  to  aiding  foreign  govern- 
ment. 

§  1704.  Existing  provision  for  search 
warrants  not  affected. 


§  1682.  Search  warrant,  by  whom  issued.  Section  1.  A 
search  warrant  authorized  by  this  title  may  be  issued  by 
a  judge  of  a  United  States  district  court,  or  by  a  judge  of 
a  State  or  Territorial  court  of  record,  or  by  the  United 
States  commissioner  for  the  district  wherein  the  property 
sought  is  located. 

§  1683.  Grounds  for  issuing.  Sec.  2.  A  search  warrant 
may  be  issued  under  tliis  title  upon  either  of  the  following 
grounds: 

122« 


Search  Warrants  1229 

1.  When  the  property  was  stolen  or  embezzled  in  vio- 
lation of  a  law  of  the  United  States;  in  which  case  it  may 
be  taken  on  the  warrant  from  any  house  or  other  place 
in  which  it  is  concealed,  or  from  the  possession  of  the 
person  by  whom  it  was  stolen  or  embezzled,  or  from  any 
person  in  whose  possession  it  may  be. 

2.  When  the  property  was  used  as  the  means  of  com- 
mitting a  felony;  in  which  case  it  may  be  taken  on  the 
warrant  from  any  house  or  other  place  in  which  it  is 
concealed,  or  from  the  possession  of  the  person  by  whom 
it  was  used  in  the  commission  of  the  offense,  or  from 
any  person  in  whose  possession  it  may  be. 

3.  When  the  property,  or  any  paper,  is  possessed,  con- 
trolled, or  used  in  violation  of  section  twenty-two  of  this 
title ;  in  which  case  it  may  be  taken  on  the  warrant  from 
the  person  violating  said  section,  or  from  any  person  in 
whose  possession  it  may  be,  or  from  any  house  or  other 
place  in  which  it  is  concealed. 

§  1684.  Must  issue  upon  probable  cause.  Sec.  3.  A 
search  warrant  can  not  be  issued  but  upon  probable 
cause,  supported  by  affidavit,  naming  or  describing  the 
person  and  particularly  describing  the  property  and  the 
place  to  be  searched. 

§  1685.  Officer  must  require  affidavits.  Sec.  4.  The  judge 
or  commissioner  must,  before  issuing  the  warrant,  ex- 
amine on  oath  the  complainant  and  any  witness  he  may 
produce,  and  require  their  affidavits  or  take  their  deposi- 
tions in  writing  and  cause  them  to  be  subscribed  by  the 
parties  making  them. 

§  1686.  Affidavits  must  set  forth  grounds  for.  Sec.  5. 
The  affidavits  or  depositions  must  set  forth  the  facts  tend- 
ing to  establish  the  grounds  of  the  application  or  prob- 
able cause  for  believing  that  they  exist. 

§  1687.  If  grounds  set  forth  are  sufficient  officer  must 
issue.  Sec.  6.  If  the  judge  or  commissioner  is  thereupon 


1230  Criminal  Law 

satisfied  of  the  existence  of  the  grounds  of  the  application 
or  that  there  is  probable  cause  to  believe  their  existence, 
he  must  issue  a  search  warrant,  signed  by  him  with  his 
name  of  office,  to  a  civil  officer  of  the  United  States  duly 
authorized  to  enforce  or  assist  in  enforcing  any  law 
thereof,  or  to  a  person  so  duly  authorized  by  the  Pres- 
ident of  the  United  States,  stating  the  particular  grounds 
or  probable  cause  for  its  issue  and  the  names  of  the  per- 
sons whose  affidavits  have  been  taken  in  support  thereof, 
and  conunanding  him  forthwith  to  search  the  person  or 
place  named,  for  the  property  specified,  and  to  bring  it 
before  the  judge  or  commissioner. 

§  1688.  No  one  can  serve  warrant  unless  directed  in 
instrument.  Sec.  7.  A  search  warrant  may  in  all  cases  be 
served  by  any  of  the  officers  mentioned  in  its  direction, 
but  by  no  other  person,  except  in  aid  of  the  officer  on  his 
requiring  it,  he  being  present  and  acting  in  its  execution, 

§  1689.  Officer  may  break  doors  and  windows  in  serving. 

Sec.  8.  The  officer  ma}'  break  open  any  outer  or  inner 
door  or  window  of  a  house,  or  any  part  of  a  house,  or 
anything  therein,  to  execute  the  warrant,  if,  after  notice 
of  his  authority  and  purpose,  he  is  refused  admittance. 

§  1690.  May  break  outer  and  inner  door  to  liberate 
assistant.  Sec  9.  lie  may  break  open  any  outer  or  inner 
door  or  window  of  a  house  for  the  purpose  of  liberating 
a  person  who,  having  entered  to  aid  him  in  the  execution 
of  the  warrant,  is  detained  therein,  or  when  necessary 
for  liis  own  lilx'rnlion. 

§  1691.  Judge  must  insert  that  service  of  warrant  be 
served  in  day  time.  Sec.  10.  The  judge  or  commissioner 
must  insert  a  direction  in  the  warrant  tliat  it  be  served 
in  the  daytime,  unless  the  affidavits  are  positive  that  the 
property  is  on  the  person  or  in  tin'  ))lace  to  be  searched, 


Search  Warrants  1i'3J 

in  which  case  he  may  insert  a  direction  that  it  be  served 
at  any  time  of  the  day  or  night. 

§  1692.  Warrant  must  be  returned  in  ten  days.  Sec.  11. 
A  search  warrant  must  be  executed  and  returned  to  the^ 
judge  or  commissioner  who  issued  it  within  ten  days  after 
its  date;  after  the  expiration  of  this  time  the  warrant, 
unless  executed,  is  void. 

§  1693.  When  property  is  taken  copy  of  warrant  must 
be  given.  See.  12.  When  the  officer  takes  property  under 
the  warrant,  he  must  give  a  coi)y  of  the  warrant  together 
with  a  receipt  for  the  property  taken  (specifying  it  in 
detail)  to  the  person  from  whom  it  was  taken  by  him, 
or  in  whose  possession  it  was  found;  or,  in  the  absence 
of  any  person,  he  must  leave  it  in  the  place  where  he 
found  the  property. 

§  1694.  Warrant  must  be  returned  forthwith  with  writ- 
ten inventory.  Sec.  13.  The  officer  must  forthwith  return 
the  warrant  to  the  judge  or  commissioner  and  deliver  to 
him  a  written  inventory  of  the  property  taken,  made 
publicly  or  in  the  presence  of  the  person  from  whose 
possession  it  was  taken,  and  of  the  applicant  for  the 
warrant,  if  they  are  present,  verified  by  the  affidavit  of 
the  officer  at  the  foot  of  the  inventory  and  taken  before 
the  judge  or  commissioner  at  the  time,  to  the  following 
effect:  *'I,  R.  S.,  the  officer  by  whom  this  warrant  was 
executed,  do  swear  that  the  above  inventoiy  contains 
a  true  and  detailed  account  of  all  the  property  taken  by 
me  on  the  warrant.'* 

§  1695.  Judg-e  or  commissioner  must  deliver  copy  of 
inventory.  Sec.  14.  The  judge  or  commissioner  must 
thereupon,  if  required,  deliver  a  copy  of  the  inventory  to 
the  person  from  whose  possession  the  property  was  taken 
and  to  the  applicant  for  the  warrant. 


1232  Criminal  Law 

§  1696.  If  thing's  alleged  are  controverted  must  take 
testimony.  Sec.  15.  If  tlie  grounds  on  wliicli  the  warrant 
was  issued  be  controverted,  the  judge  or  commissioner 
must  proceed  to  take  testimony  in  relation  thereto,  and 
the  testimony  of  each  witness  must  be  reduced  to  writing 
and  subscribed  by  each  -^vitness. 

§  1697.  If  property  is  not  same  described  in  warrant 
must  be  restored.  Sec.  16.  If  it  appears  that  the  property 
or  paper  taken  is  not  the  same  as  that  described  in  the 
warrant  or  that  tliere  is  no  probable  cause  for  believing 
the  existence  of  the  grounds  on  which  the  warrant  was 
issued,  the  judge  or  commissioner  must  cause  it  to  be 
restored  to  the  person  from  whom  it  was  taken;  but  if 
it  appears  that  the  property  or  paper  taken  is  the  same 
as  that  described  in  the  warrant  and  that  there  is  prob- 
able cause  for  believing  the  existence  of  the  grounds  on 
which  the  warrant  was  issued,  then  the  judge  or  commis- 
sioner shall  order  the  same  retained  in  the  custody  of 
the  person  seizing  it  or  to  be  otherwise  disposed  of  ac- 
cording to  law. 

§  1698.  All  papers  must  be  filed  with  the  clerk.  Sec.  17. 
The  judge  or  commissioner  must  annex  the  afiidavits, 
search  warrant,  return,  inventory,  and  evidence,  and 
if  he  has  not  power  to  inquire  into  the  offense  in  respect 
to  which  the  warrant  was  issued  he  must  at  once  file  the 
same  together  with  a  copy  of  the  record  of  his  proceed- 
ings with  the  clerk  of  the  court  having  power  to  so  in- 
quire. 

§  1699.  Punishment  for  resisting  issuance  and  service. 
Sec.  18.  Whoever  shall  knowingly  and  wilfully  obstruct, 
resist,  or  oppose  any  sucli  oflicer  or  person  in  serving  or 
attempting  to  serve  or  execute  any  such  search  warrant, 
or  sliall  assault,  beat,  or  wound  any  such  officer  or  person, 
knowing  liini  to  be  an  officer  or  person  so  authorized, 
shall  be  fined  not  inoie  llian  $1,000  or  imprisoned  not 
more  than  two  years. 


Search  Warrants  1233 

§  1700.  Perjury  to  make  false  affidavit  and  oath.  Sec. 
19.  Sections  one  hundred  and  twenty-five  and  one  hun- 
dred and  twenty-six  of  the  Criminal  Code  of  the  United 
States  shall  apply  to  and  embrace  all  persons  making 
oath  or  affinnation  or  procuring  the  same  under  the  pro- 
visions of  this  title,  and  such  persons  shall  be  subject  to 
all  the  pains  and  penalties  of  said  sections. 

§  1701.  Punishment  for  maliciously  procuring".  Sec.  20. 
A  person  who  maliciously  and  without  probable  cause 
procures  a  search  warrant  to  be  issued  and  executed  shall 
be  fined  not  more  than  $1,000  or  imprisoned  not  more 
than  one  year. 

§  1702.  Punishment  of  officer  exceeding  authority. 
Sec.  21.  An  officer  who  in  executing  a  search  warrant 
wilfully  exceeds  his  authority,  or  exercises  it  with  unnec- 
essary severity,  shall  be  fined  not  more  than  $1,000  or 
imprisoned  not  more  than  one  year. 

§  1703.  As  to  aiding  foreign  government.  Sec.  22.  Who- 
ever, in  aid  of  any  foreign  government,  shall  knowingly 
and  wilfully  have  possession  of  or  control  over  any  prop- 
erty or  papers  designed  or  intended  for  use  or  which  is 
used  as  the  means  of  violating  any  penal  statute,  or  any 
of  the  rights  or  obligations  of  the  United  States  under 
any  treaty  or  the  law  of  nations,  shall  be  fined  not  more 
than  $1,000  or  imprisoned  not  more  than  two  years,  or 
both. 

§  1704.  Existing  provision  for  search  warrants  not  af- 
fected. Sec.  23.  Nothing  contained  in  this  title  shall  be 
held  to  repeal  or  impair  any  existing  provisions  of  law 
regulating  search  and  the  issue  of  search  warrants.^ 

1— Part  1,  40  U.  S.  Stat,  at  Large, 
Title  XI,  pages  228,  229   and  230, 
Act  Congress,  June  15,  1917. 
C.  L.— 78 


CHAPTER  LXXXII 

PIKACY  AND  OTHER  OFFENSES  UPON  THE  SEAS 

CHAPTER  TWELVE 

Penal  Code  Act,  March  4,  1909 

§  1707.  Piracy    under    the    law    of  attempting  to  destroy  ves- 

nations.  sel  at  sea. 

§  1708.  Maltreatment     of     crew     by  §  1719.  Robbery  on  shore  by  crew  of 

officers   of   vessel.  piratical  vessel. 

§  1709.  Inciting  revolt  or  mutiny  on  §  1720.  Arming      vessel      to      cruise 

shipboard.  against     citizens     of     the 

§  1710.  Revolt  and  mutiny  on  ship-  United   States. 

board.  §  1"21.  Piracy     under     color     of     a 


§  1711.  Seaman  laying  violent  hands 
on  his  commander. 

§  1712.  Abandonment  of  mariners  in 
foreign  ports. 

§  1713.  Conspiracy  to  cast  away  ves- 
sel. 

§  1714.  Plundering  vessel  in  distress, 
etc. 

§  1715.  Attacking  vessel  with  intent 
to  plunder. 

g  171  ().  Breaking  and  entering  ves- 
sel, etc. 

^  1717.  Owner  destroying  vessel  at 
sea. 

§  1718.  Other  persons  destroying  or 


foreign  commission. 

§  1722.  Piracy  by  subjects  or  citi- 
zens of  a  foreign  state. 

§  1723.  Running  away  with  or  yield- 
ing up  vessel  or  cargo. 

§  1724.  Confederating,  etc.,  with  pi- 
rates. 

§  1725.  Sale  of  arms  and  intoxicants 
forbidden  in  Pacific  Is- 
lands. 

§  172G.  Offenses  under  preceding 
section  deemed  on  high 
seas. 

§  1  727.  ' '  Vessels  of  the  United 
States"  defined. 


§1707.  Piracy  under  the  law  of  nations.  Sec.  290.  Who- 
ever, oil  the  liii^li  seas,  coiniiiils  the  criiiie  of  piracy  as 
(lofined  ])y  the  law  of  nations,  and  is  afterwards  brought 
into  or  fmiiid  in  the  United  States,  shall  be  imprisoned 

foi-  life. 

§  1708.  Maltreatment  of  crew  by  officers  of  vessel.  Sec. 
291.  Whoever,  being  the  master  or  ofticer  of  a  vessel  of 
tli<-  Fiiiled  States,  on  tlie  high  seas,  or  on  any  other  waters 

1234 


Piracy  and  Othee  Offenses  Upon  the  Seas    1235 

within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  beats,  wounds,  or  without  justifiable  cause, 
imprisons  any  of  the  crew  of  such  vessel,  or  withholds 
from  them  suitable  food  and  nourishment,  or  inflicts  upon 
them  any  cruel  and  unusual  punishment,  shall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not 
more  than  five  years,  or  both.  Nothing  herein  contained 
shall  be  construed  to  repeal  or  modify  section  forty-six 
hundred  and  eleven  of  the  Revised  Statutes. 

§  1709.  Inciting  revolt  or  mutiny  on  shipboard.  Sec. 
292.  Whoever,  being  of  the  crew  of  a  vessel  of  the  United 
States,  on  the  high  seas,  or  on  any  other  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  endeavors  to  make  a  revolt  or  mutiny  on  board 
such  vessel,  or  combines,  conspires,  or  confederates  with 
any  other  person  on  board  to  make  such  revolt  or  mutiny, 
or  solicits,  incites,  or  stirs  up  any  other  of  the  crew  to 
disobey  or  resist  the  lawful  orders  of  the  master  or  other 
officer  of  such  vessel,  or  to  refuse  or  neglect  their  proper 
duty  on  board  thereof,  or  to  betray  their  proper  trust,  or 
assembles  with  others  in  a  tumultuous  and  mutinous 
manner,  or  makes  a  riot  on  board  thereof,  or  unlawfully 
confines  the  master  or  other  commanding  officer  thereof, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  im- 
prisoned not  more  than  five  years,  or  both. 

§  1710.  Revolt  and  mutiny  on  shipboard.  Sec.  293. 
Whoever,  being  of  the  crew  of  a  vessel  of  the  United 
States,  on  the  high  seas,  or  on  any  other  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  unlawfully  and  with  force,  or  by  fraud,  or  intimi- 
dation, usurps  the  command  of  such  vessel  from  the  mas- 
ter or  other  lawful  officer  in  command  thereof,  or  de- 
prives him  of  authority  and  command  on  board,  or  resists 
or  prevents  him  in  the  free  and  lawful  exercise  thereof, 
or  transfers  such  authority  and  command  to  another  not 


1236  Criminax.  Law 

lawfully  entitled  thereto,  is  guilty  of  a  revolt  and  mutiny, 
and  shall  be  fined  not  more  than  two  thousand  dollars 
and  imprisoned  not  more  than  ten  years. 

§  1711.  Seaman  laying  violent  hands  on  his  commander. 
Sec.  294.  Whoever,  being  a  seaman,  lays  violent  hands 
upon  his  commander,  thereby  to  hinder  and  prevent  his 
fighting  in  defense  of  his  vessel  or  the  goods  intrusted 
to  him,  is  a  pirate,  and  shall  be  imprisoned  for  life. 

§  1712.  Abandonment  of  mariners  in  foreign  ports. 
Sec.  295.  Whoever,  being  master  or  commander  of  a  ves- 
sel of  the  United  States,  while  aboard,  maliciously  and 
without  justifiable  cause  forces  any  officer  or  mariner  of 
such  vessel  on  shore,  in  order  to  leave  him  behind  in  any 
foreign  port  or  place,  or  refuses  to  bring  home  again  all 
such  officers  and  mariners  of  such  vessel  whom  he  carried 
out  with  him,  as  are  in  a  condition  to  return  and  willing 
to  return,  when  he  is  ready  to  proceed  on  his  homeward 
voyage,  shall  be  fined  not  more  than  five  hundred  dollars, 
or  imprisoned  not  more  than  six  months,  or  both. 

§  1713.  Conspiracy  to  cast  away  vessel.  Sec.  296.  Who- 
ever, on  the  high  seas,  or  within  the  United  States,  wil- 
fully and  corruptly  conspires,  combines,  and  confederates 
with  any  other  person,  such  other  person  being  either 
within  or  without  the  United  States,  to  cast  away  or 
otherwise  destroy  any  vessel,  with  intent  to  injure  any 
jjerson  that  may  have  underwritten  or  may  thereafter 
underwrite  any  policy  of  insurance  thereon  or  on  goods 
on  board  thereof,  or  with  intent  to  injure  any  person  that 
has  lent  or  advanced,  or  may  lend  or  advance,  any  money 
on  sucli  vessel  on  bottomiy  or  respondentia;  or  whoever, 
witliiii  the  United  States,  builds,  or  fits  out,  or  aids  in 
building  or  fitting  out,  any  vessel  with  intent  that  the 
same  be  cast  away  or  destroyed,  with  tlie  intent  herein- 
before mentioned,  shall  be  fined  not  more  than  ten  thou- 
sand dollars  and  imprisoned  not  more  than  ten  years. 


Piracy  and  Other  Offenses  Upon  the  Seas    1237 

§  1714.  Plundering"  vessel  in  distress,  etc.  Sec.  297. 
Whoever  plunders,  steals,  or  destroys  any  money,  goods, 
merchandise,  or  other  effects,  from  or  belonging  to  any 
vessel  in  distress,  or  wrecked,  lost,  stranded,  or  cast 
away,  upon  the  sea,  or  upon  any  reef,  shoal,  bank,  or 
rocks  of  the  sea,  or  in  any  other  place  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States, 
shall  be  fined  not  more  than  five  thousand  dollars  and 
imprisoned  not  more  than  ten  years;  and  whoever  wil- 
fully obstructs  the  escape  of  any  person  endeavoring 
to  save  his  life  from  such  vessel,  or  the  wreck  thereof; 
or  whoever  holds  out  or  shows  any  false  light,  or  extin- 
guishes any  true  light,  with  intent  to  bring  any  vessel 
sailing  upon  the  sea  into  danger,  or  distress,  or  ship- 
wreck, shall  be  imprisoned  not  less  than  ten  years  and 
may  be  imprisoned  for  life. 

§  1715.  Attacking  vessel  with  intent  to  plunder.  Sec. 
298.  Whoever,  upon  the  high  seas  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  by  surprise  or  by  open  force,  maliciously 
attacks  or  sets  upon  any  vessel  belonging  to  another,  with 
an  intent  unlawfully  to  plunder  the  same,  or  to  despoil 
any  owner  thereof  of  any  moneys,  goods,  or  merchandise 
laden  on  board  thereof,  shall  be  fined  not  more  than  five 
thousand  dollars  and  imprisoned  not  more  than  ten  years. 

§  1716.  Breaking  and  entering  vessel,  etc.  Sec.  299. 
Whoever,  upon  the  high  seas  or  on  any  other  waters 
within  the  admiralty  and  maritime  jurisdiction  of  the 
United  States,  and  out  of  the  jurisdiction  of  any  particu- 
lar State,  breaks  or  enters  any  vessel,  with  intent  to  com- 
mit any  felony,  or  maliciously  cuts,  spoils,  or  destroys 
any  cordage,  cable,  buoys,  buoy  rope,  head  fast,  or  other 
fast,  fixed  to  the  anchor  or  moorings  belonging  to  any 
vessel,  shall  be  fined  not  more  than  one  thousand  dollars 
and  imprisoned  not  more  than  five  years. 


1238  Criminal  Law 

§  1717.  Owner  destroying  vessel  at  sea.  Sec.  300.  Who- 
ever, ujoon  the  high  seas  or  on  any  other  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  wilfully  and  corruptly  casts  away  or  otherwise 
destroys  any  vessel,  of  which  he  is  owner,  in  whole  or  in 
part,  with  intent  to  prejudice  any  person  that  may  under- 
write any  policy  of  insurance  thereon,  or  any  merchant 
that  may  have  goods  thereon,  or  any  other  owner  of  such 
vessel,  shall  be  imprisoned  for  life  or  for  any  term  of 
years. 

§  1718.  Other  persons  destroying-  or  attempting  to  de- 
stroy vessel  at  sea.  Sec.  301.  Whoever,  not  being  an 
owner,  upon  the  high  seas  or  on  any  other  waters  within 
the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  wilfully  and  corruptly  casts  away  or  othenvise 
destroys  any  vessel  of  the  United  States  to  which  he  be- 
longs, or,  wilfully,  with  intent  to  destroy  the  same,  sets 
fire  to  any  such  vessel,  or  otherwise  attempts  the  destruc- 
tion thereof,  shall  be  imprisoned  not  more  than  ten  years. 

§  1719.  Robbery  on  shore  by  crew  of  piratical  vessel. 
Sec.  302.  Whoever,  being  engaged  in  any  piratical  cruise, 
or  enterprise,  or  being  of  the  crew  of  any  piratical  vessel, 
lands  from  such  vessel,  and  on  shore  commits  robbery,  is 
a  pirate,  and  shall  be  imprisoned  for  life. 

§  1720.  Arming  vessel  to  cruise  against  citizens  of  the 
United  States.  Sec.  303.  Whoever,  being  a  citizen  of  the 
United  States,  without  the  limits  thereof,  fits  out  and 
aiTns,  or  attempts  to  fit  out  and  arm,  or  procures  to  be 
fillf'd  out  and  aimed,  or  knowingly  aids  or  is  concerned 
ill  fiiciiisliiiig,  fitting  out,  or  amiing,  any  private  vessel 
of  war  or  privateer,  with  intent  tliat  sucli  vessel  shall  he 
emph)yed  to  cruise  or  commit  hostilities  upon  the  citizens 
of  tlie  United  States,  or  their  property,  or  whoever  takes 
the  ronimaiid  of  or  enters  on  board  of  any  such  vessel. 


PiKAcv  AND  Othek  Offenses  Upon  THE  Seas   1239 

for  such  intent,  or  who  purchases  any  interest  in  any- 
such  vessel  with  a  view  to  share  in  the  profits  thereof, 
shall  be  fined  not  more  than  ten  thousand  dollars  and 
imprisoned  not  more  than  ten  years.  The  trial  for  such 
offense,  if  committed  without  the  limits  of  the  United 
States,  shall  be  in  the  district  in  which  the  offender  shall 
be  apprehended  or  first  brought. 

§  1721.  Piracy  under  color  of  a  forei^  commission. 
Sec.  304.  Whoever,  being  a  citizen  of  the  United  States, 
commits  any  murder  or  robbery^,  or  any  act  of  hostility 
against  the  United  States,  or  against  any  citizen  thereof, 
on  the  high  seas,  under  color  of  any  commission  from 
any  foreign  prince,  or  state,  or  on  pretense  of  authority 
from  any  person,  is,  notwithstanding  the  pretense  of  such 
authority,  a  pirate,  and  shall  be  imprisoned  for  life. 

§  1722.  Piracy  by  subjects  or  citizens  of  a  foreign  state. 
Sec.  305.  Whoever,  being  a  citizen  or  subject  of  any  for- 
eign state,  is  found  and  taken  on  the  sea  making  war  upon 
the  United  States,  or  cruising  against  the  vessels  and 
property  thereof,  or  of  the  citizens  of  the  same,  contrary 
to  the  provisions  of  any  treaty  existing  between  the 
United  States  and  the  state  of  which  the  offender  is  a 
citizen  or  subject,  when  by  such  treaty  such  acts  are 
declared  to  be  piracy,  is  guilty  of  piracy,  and  shall  be 
imprisoned  for  life. 

§  1723.  Running  away  with  or  yielding  up  vessel  or 
cargo.  Sec.  306.  Whoever,  being  a  captain  or  other  officer 
or  mariner  of  a  vessel  upon  the  high  seas  or  on  any  other 
waters  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  piratically  or  feloniously  runs  away 
with  such  vessel,  or  with  any  goods  or  merchandise 
thereof,  to  the  value  of  fifty  dollars,  or  who  yields  up 
such  vessel  voluntarily  to  any  pirate,  shall  be  fined  not 
more  than  ten  thousand  dollars,  or  imprisoned  not  more 
than  ten  years,  or  both. 


L240  Criminal  Law 

§1724.  Confederating,  etc.,  with  pirates.  Sec.  307. 
AMioever  attempts  or  endeavors  to  corrupt  any  com- 
mander, master,  officer,  or  mariner  to  yield  up  or  to  run 
away  with  any  vessel,  or  with  any  goods,  wares,  or  mer- 
chandise, or  to  turn  pirate,  or  to  go  over  to  or  confederate 
with  pirates,  or  in  any  wise  to  trade  with  any  pirate, 
knowing  him  to  be  such,  or  furnishes  such  pirate  with 
any  ammunition,  stores,  or  provisions  of  any  kind,  or  fits 
out  any  vessel  knowingly  and,  w^ith  a  design  to  trade 
with,  supply,  or  correspond  with  any  pirate  or  robber 
upon  the  seas;  or  whoever  consults,  combines,  confeder- 
ates, or  con-esponds  with  any  pirate  or  robber  upon  the 
seas,  know^ing  him  to  be  guilty  of  any  piracy  or  robbery; 
or  whoever,  being  a  seaman,  confines  the  master  of  any 
vessel,  shall  be  fined  not  more  than  one  thousand  dollars 
and  imprisoned  not  more  than  three  years. 

§  1725.  Sale  of  arms  and  intoxicants  forbidden  in  the 
Pacific  islands.    Sec.  308.    Whoever,  being  subject  to  the 
autliority  of  the  United  States,  shall  give,  sell,  or  other- 
wise supply  any  arms,  ammunition,  explosive  substance, 
intoxicating  liquor,  or  opium  to  any  aboriginal  native  of 
any  of  the  Pacific  islands  lying  within   the   twentieth 
parallel  of  north  latitude  and  the  fortieth  parallel  of 
south  latitude,  and  the  one  hundred  and  twentieth  meri- 
dian of  longitude  west  and  one  hundred  and  twentieth 
meridian  of  longitude  east  of  Greenwich,  not  being  in 
the  possession  or  under  the  protection  of  any  civilized 
power,  shall  be  fined  not  more  than  fifty  dollars,  or  im- 
prisoned not  more  than  three  months,  or  both.    In  addi- 
tion to  such  punishment,  all  articles  of  a  similar  nature 
to  tliosc  in  respect  to  which  an  offense  has  been  com- 
mitted, found  in  the  possession  of  ih(>  offcndor,  may  be 
declared  forfeited.     If  it  sliall  appear  to  the  court  that 
Kucli  opium,  Aviue,  or  spirits  liavc  been  given  bona  fide 
for  medical   i)urposcs,  it  shall  be  lawful  for  the  court 
to  dismiss  the  charge. 


Piracy  and  Otiiek  Offenses  irpoN  the  8eas    1241 

§  1726.  Offenses  under  preceding  section  deemed  on 
high  seas.  Sec.  309.  All  offenses  against  the  provisions 
of  the  section  last  preceding,  committed  on  any  of  said 
islands  or  on  the  waters,  rocks,  or  keys  adjacent  thereto, 
shall  be  deemed  committed  on  the  high  seas  on  board  a 
merchant  ship  or  vessel  belonging  to  the  United  States, 
and  the  courts  of  the  United  States  shall  have  jurisdiction 
accordingly. 

§1727.  "Vessels  of  the  United  States"  defined.  Sec 
310.  The  words  "vessels  of  the  United  States,"  wherever 
they  occur  in  this  chapter,  shall  be  construed  to  mean 
a  vessel  belonging  in  whole  or  in  part  to  the  United 
States,  or  any  citizen  thereof,  or  any  corporation  created 
by  or  under  the  laws  of  the  United  States,  or  of  any 
State,  Territory  or  District  thereof. 


CHAPTER  LXXXIII 

CERTAIN  OFFENSES  IN  THE  TEREITORIES 

CHAPTER  THIRTEEN 

Penal  Code  Act,  March  4,  1909 

§  1730.  Places  within  which  sections  §  1737.  Fornication. 

of  this  chapter  shall  apply.  §  1738.  Certificates      of      marriage; 
§  1731.  Circulation  of  obscene  litera-  penalty      for     failure     to 

ture;    promoting  abortion.  record. 

§  1732.  Polygamy.  §  1739.  Prize  fights,  bull  fights,  etc. 

§1733.  Unlawful    cohabitation.  §1740.  Definition  of  "pugilistic  en- 
§1734.  Joinder   of   counts.  counter." 

§  1735.  Adultery.  §  1741.  Train     robberies     in     Terri- 
§  1736.  Incest.  tories,  etc. 

§  1730.  Places  within  which  sections  of  this  chapter 
shall  apply.  Sec.  311.  Except  as  otherwise  expressly  pro- 
vided, tlie  offenses  defined  in  this  chapter  shall  be  pnn- 
ished  as  hereinafter  provided,  when  committed  within 
any  Territory  or  District,  or  within  or  npon  any  place 
within  the  exclusive  jurisdiction  of  the  United  States. 

§1731.  Circulation  of  obscene  literature;  promoting- 
abortion;  how  punished.  Sec.  312.  Whoever  shall  sell, 
lend,  give  away,  or  in  any  manner  exhibit,  or  offer  to  sell, 
lend,  give  away,  or  in  any  manner  exhibit,  or  shall  other- 
wise pnl)lisli  or  offer  to  i)n])lisli  in  any  manner,  or  shall 
have  in  liis  possession  for  any  such  purpose,  any  obscene 
book,  pamphlet,  paper,  writing,  advertisement,  circular, 
print,  picture,  drawing,  or  other  representation,  figure, 
or  image  on  or  of  paper  or  other  material,  oi-  any  cast,  in- 
strument, or  other  article  of  any  immoi'al  nature,  or  Jiny 
drug  or  medicine,  or  any  article  whatever,  for  the  pre- 
vention of  conception,  or  for  causing  unlawful  abortion, 
or  shall  advertise  the  same  for  sale,  or  shall  write  or 

1242 


Certain  Offenses  in  the  Territories         1243 

print,  or  cause  to  be  written  or  printed,  any  card,  circular, 
book,  pamphlet,  advertisement,  or  notice  of  any  kind, 
stating  when,  where,  how,  or  of  whom,  or  by  what  means, 
any  of  the  articles  above  mentioned  can  be  purchased  or 
obtained,  or  shall  manufacture,  draw,  or  print,  or  in  any 
Avise  make  any  of  such  articles,  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  not  more  than 
five  years,  or  both. 

§  1732.  Polyg"amy.  Sec.  313.  Every  person  who  has  a 
husband  or  wife  living,  who  marries  another,  whether 
married  or  single,  and  any  man  who  simultaneously,  or 
on  the  same  day,  marries  more  than  one  woman,  is  guilty 
of  polygamy,  and  shall  be  fined  not  more  than  five  hun- 
dred dollars  and  imprisoned  not  more  than  five  years. 
But  this  section  shall  not  extend  to  any  person  by  reason 
of  any  former  marriage  whose  husband  or  wife  by  such 
marriage  shall  have  been  absent  for  five  successive  years, 
and  is  not  known  to  such  person  to  be  living,  and  is  be- 
lieved by  such  person  to  be  dead,  nor  to  any  person  by 
reason  of  any  former  marriage  which  shall  have  been 
dissolved  by  a  valid  decree  of  a  competent  court,  nor  to 
any  person  by  reason  of  any  former  marriage  which  shall 
have  been  pronounced  void  by  a  valid  decree  of  a  com- 
petent court,  on  the  ground  of  nullity  of  the  marriage 
contract. 

§  1733.  Unlawful  cohabitation.  Sec.  314.  If  any  m^ale 
person  cohabits  with  more  than  one  woman,  he  shall  be 
fined  not  more  than  three  hundred  dollars,  or  imprisoned 
not  more  than  six  months,  or  both. 

§  1734.  Joinder  of  counts.  Sec.  315.  Counts  for  any  or 
all  of  the  offenses  named  in  the  two  sections  last  preced- 
ing may  be  joined  in  the  same  information  or  indictment. 

§  1735.  Adultery.  Sec.  316.  Whoever  shall  commit 
adulteiy  shall  be  imprisoned  not  more  than  three  years; 


1244  Criminal  Law 

and  when  tlie  act  is  committed  between  a  married  woman 
and  a  man  who  is  unmarried,  both  parties  to  such  act 
shall  be  deemed  guilty  of  adultery;  and  when  such  act 
is  committed  between  a  married  man  and  a  woman  who 
is  unmarried,  the  man  shall  be  deemed  guilty  of  adultery. 

§  1736.  Incest.  Sec.  317.  Whoever,  being  related  to  an- 
other person  within  and  not  including  the  fourth  degree 
of  consanguinity  computed  according  to  the  rules  of  the 
civil  law,  shall  marry  or  cohabit  with,  or  have  sexual  in- 
tercourse with  such  other  so  related  person,  knowing  her 
or  him  to  be  within  said  degree  of  relationship,  shall  be 
deemed  guilty  of  incest,  and  shall  be  imprisoned  not  more 
than  fifteen  years. 

§  1737.  Fornication.  Sec.  318.  If  any  unmarried  man 
or  woman  commits  fornication,  each  shall  be  fined  not 
more  than  one  hundred  dollars,  or  imprisoned  not  more 
than  six  months. 

§  1738.  Certificates  of  marriage;  penalty  for  failure  to 
record.  Sec.  319.  Every  ceremony  of  marriage,  or  in  the 
nature  of  a  marriage  ceremony  of  any  kind,  whether 
either  or  both  or  more  of  the  parties  to  such  ceremony  be 
lawfully  competent  to  be  the  subjects  of  such  marriage  or 
ceremony  or  not,  shall  be  certified  by  a  certificate  stating 
the  fact  and  nature  of  such  ceremony,  the  full  name  of 
each  of  the  parties  concerned,  and  the  full  name  of  every 
officer,  priest,  and  person,  by  whatever  style  or  designa- 
tion called  or  known,  in  any  way  taking  part  in  the  per- 
formance of  such  ceremony,  which  certificate  shall  be 
drawn  up  and  signed  by  the  parties  to  sucli  ceremony  and 
by  every  oflicer,  priest,  and  person  taking  part  in  llio  per- 
formance of  such  ceremony,  and  shall  be  by  the  officer, 
priest,  or  other  person  solemnizing  such  marriage  or  cere- 
mony filed  in  tlic  office  of  the  pr<)])ale  court,  or,  if  there 
bo  none,  in  the  office  of  llio  court  having  probate  powers 
ill   llic  coiiiity  or  district  in  wliidi   such  ceremony  shall 


Certain  Offenses  in  the  Tkhhitokies         1245 

take  place,  for  record,  and  shall  be  immediately  recorded, 
and  be  at  all  times  subject  to  inspection  as  other  public 
records.  Such  certificate,  or  the  record  thereof,  or  a  duly 
certified  copy  of  such  record,  shall  be  prima  facie  evidence 
of  the  facts  required  by  this  section  to  be  stated  therein 
in  any  proceeding,  civil  or  criminal,  in  which  the  matter 
shall  be  drawn  in  question.  But  nothing  in  this  section 
shall  be  held  to  prevent  the  proof  of  marriages,  whether 
lawful  or  unlawful  by  any  evidence  othenvise  legally 
admissible  for  that  purpose.  Whoever  shall  wilfully  vio- 
late any  provision  of  this  section  shall  be  fined  not  more 
than  one  thousand  dollars,  or  imprisoned  not  more  than 
two  years,  or  both.  The  provisions  of  this  section  shall 
apply  only  within  the  Territories  of  the  United  States. 

§1739.  Prize  fights,  bull  fights,  etc.  Sec.  320.  Whoever 
shall  voluntarily  engage  in  a  pugilistic  encounter  between 
man  and  man  or  a  fight  between  a  man  and  a  bull  or  any 
other  animal,  for  money  or  for  other  thing  of  value,  or  for 
any  championship,  or  upon  the  result  of  which  any  money 
or  anything  of  value  is  bet  or  wagered,  or  to  see  which 
any  admission  fee  is  directly  or  indirectly  charged,  shall 
be  imprisoned  not  more  than  five  years.  The  provisions 
of  this  section  shall  apply  only  within  the  Territories  of 
the  United  States,  and  the  District  of  Columbia. 

§1740.  "Pugilistic  encounter"  defined.  Sec.  321.  By 
the  term  ''pugilistic  encounter,"  as  used  in  the  section 
last  preceding,  is  meant  any  voluntaiy  fight  by  blows  by 
means  of  fists  or  otherwise,  whether  with  or  without 
gloves,  between  two  or  more  men,  for  money  or  for  a  prize 
of  any  character,  or  for  any  other  thing  of  value,  or  for 
any  championship,  or  upon  the  result  of  which  any  money 
or  anything  of  value  is  bet  or  wagered,  or  to  see  which 
any  admission  fee  is  directly  or  indirectly  charged. 

§1741.  Train  robberies  in  territories,  etc.  Sec.  322. 
Whoever  shall  wilfully  and  maliciously  trespass  upon  or 


1246  Criminal,  Law 

enter  upon  any  railroad  train,  railroad  car,  or  railroad 
locomotive,  with  the  intent  to  commit  murder,  or  robbery, 
shall  be  fined  not  more  than  five  thousand  dollars,  or  im- 
prisoned not  more  than  twenty  years,  or  both.  A\nioever 
shall  wilfully  and  maliciously  trespass  upon  or  enter 
upon  any  railroad  train,  railroad  car,  or  railroad  locomo- 
tive, with  intent  to  commit  any  unlawful  violence  upon 
or  against  any  passenger  on  said  train,  or  car,  or  upon  or 
against  any  engineer,  conductor,  fireman,  brakeman,  or 
any  officer  or  employee  connected  with  said  locomotive, 
train,  or  car,  or  upon  or  against  any  express  messenger  or 
mail  agent  on  said  train  or  in  any  car  thereof,  or  to  com- 
mit any  crime  or  offense  against  any  person  or  property 
thereon,  shall  be  fined  not  more  than  one  thousand  dollars, 
or  imprisoned  not  more  than  one  year,  or  both.  Whoever 
shall  counsel,  aid,  abet,  or  assist  in  the  perpetration  of 
any  of  the  offenses  set  forth  in  this  section  shall  be  deemed 
to  be  a  principal  therein.  Upon  the  trial  of  any  person 
charged  with  any  offense  set  forth  in  this  section,  it  shall 
not  be  necessary  to  set  forth  or  prove  the  particular  person 
against  whom  it  was  intended  to  commit  the  offense,  or 
that  it  was  intended  to  commit  such  offense  against  any 
particular  person. 


CHAPTER  LXXXIV 

TELEGRAPHS  AND  RADIOS 


§  1744.  Refusal  by  telegraph  under 
Act  Feb.  27,  1877,  to 
transmit  messages  subject 
to  penalty. 

§  1745.  Railroads  and  telegraph 
companies  to  which  Gov- 
ernment has  granted  a 
subsidy  are  required  to 
maintain  and  operate  tele- 
graph  lines. 

§  1746.  Railroad  and  telegraph  com- 
panies refusing  under  Sec. 
1,  Act  Aug.  7,  1888,  to 
maintain  connecting  lines 
may  apply  to  interstate 
commerce  commission  for 
relief. 

§  1747.  Railroads      and     telegraph 


companies  operated  under 
Sec.  1,  Act  Aug.  7,  1888, 
shall  allow  other  telegraph 
companies  to  connect  with 
them. 

§  3  748.  Punishment  of  officers  and 
agents  of  railroads  and 
telegraph  companies  fail- 
ing to  comply  with  pro- 
visions of  Act  Aug.  7, 
1888. 

§  1749.  No  use  can  be  made  of  an 
apparatus  for  radio  com- 
munication between  states 
without    license,    penalty. 

§  1750.  Unlawful  to  employ  unli- 
censed person  to  operate 
radio  apparatus. 


§  1744.  Refusal  by  telegraph,  under  Act  Feb.  27,  1877, 
to  transmit  messages  subject  to  penalty.  Whenever  any 
telegraph  company,  after  having  filed  its  written  accept- 
ance with  the  Postmaster-General  of  the  restrictions  and 
obligations  required  by  the  Act  approved  July  twenty- 
fourth,  eighteen  hundred  and  sixty-six,  entitled  ' '  An  Act 
to  aid  in  the  construction  of  telegraph  lines,  and  to  secure 
to  the  Government  the  use  of  the  same  for  postal,  military, 
and  other  purposes,"  or  by  this  Title,  shall,  by  its  agents 
or  employees,  refuse  or  neglect  to  transmit  any  such  tele- 
graphic communications  as  are  provided  for  by  the  afore- 
said Act,  or  by  this  Title,  or  by  the  provisions  of  section 
two  hundred  and  twenty-one,  Title,  ^'The  Department 
of  War, ' '  authorizing  the  Secretary  of  War  to  provide  for 
taking  meteorological  observations  at  the  militaiy  sta- 

1247 


1248  Ceiminal  Law 

tions  and  other  points  of  the  interior  of  the  continent, 
and  for  giving  notice  on  the  nortlieni  lakes  and  sea-board 
of  the  approach  and  force  of  storms,  such  telegraph  com- 
pany shall  be  liable  to  a  penalty  of  not  less  than  one  hun- 
dred dollars  and  not  more  than  one  thousand  dollars  for 
each  such  refusal  or  neglect,  to  be  recovered  by  an  action 
or  actions  at  law  in  any  district  court  of  the  United 
States.^ 

§  1745.  Railroads  and  telegraph  companies  to  which 
g-ovemment  has  granted  a  subsidy  are  required  to  main- 
tain and  operate  telegraph  lines.  That  all  railroad  and 
telegraph  companies  to  w^hich  the  United  States  has 
granted  any  subsidy  in  lands  or  bonds  or  loan  of  credit 
for  the  constiniction  of  either  railroad  or  telegraph  lines, 
which,  by  the  Acts  incorporating  them,  or  by  any  Act 
amendatory  or  supplementary  thereto,  are  required  to 
construct,  maintain,  or  operate  telegraph  lines,  and  all 
companies  engaged  in  operating  said  railroad  or  tele- 
graph lines  shall  forthwith  and  henceforward,  by  and 
through  their  own  respective  corporate  officers  and  em- 
ployees, maintain,  and  operate,  for  railroad,  Govern- 
mental, commercial,  and  all  other  purposes,  telegraph 
lines  and  exercise  by  themselves  alone  all  the  telegraph 
franchises  conferred  upon  them  and  obligations  assumed 
by  them  under  the  Acts  making  the  grants  as  aforesaid.^ 

§  1746.  Railroad  and  telegn'aph  companies  refusing 
under  Sec.  1  Act  August  7,  1888,  to  maintain  connecting 
lines  may  apply  to  interstate  commerce  commission  for 
relief.  Tiiat  if  any  such  railroad  or  telegraph  company 
refcn-ed  to  in  the  first  section  of  this  Act,  or  company  op- 
erating such  railroad  or  telegraph  line  shall  refuse  or  fail, 
in  whole  or  in  part,  to  maintain,  and  operate  a  telegraph 
line  as  provided  in  this  Act  and  Acts  to  which  this  is  sup- 

1— R.  S.  ."5200,  Act  Feb.  27,  1877,  2— Spc.    1,   Act    Aii^.    7,    1888,   2.') 

1ft  Rtnt.  2.52.  '"^tnt.  382. 


Telegraphs  and  Radios  1249 

plementary,  for  the  use  of  the  Government  or  the  public, 
for  commercial  and  other  purposes,  without  discrimina- 
tion, or  shall  refuse  or  fail  to  make  or  continue  such  ar- 
rangements for  the  interchange  of  business  with  any 
connecting  telegraph  company,  then  any  person,  com- 
pany, corporation,  or  connecting  telegraph  company  may 
apply  for  relief  to  the  Interstate  Commerce  Commission, 
whose  duty  it  shall  thereupon  be,  under  such  rules  and 
regulations  as  said  Commission  may  prescribe,  to  ascer- 
tain the  facts,  and  determine  and  order  what  arrangement 
is  proper  to  be  made  in  the  particular  case,  and  the  rail- 
road or  telegraph  company  concerned  shall  abide  by  and 
perform  such  order;  and  it  shall  be  the  duty  of  the  Inter- 
state Commerce  Commission,  when  such  determination 
and  order  are  made,  to  notify  the  parties  concerned,  and, 
if  necessary,  enforce  the  same  by  writ  of  mandamus  in  the 
courts  of  the  United  States,  in  the  name  of  the  United 
States,  at  the  relation  of  either  of  said  Interstate  Com- 
merce Commissioners;  Provided,  That  the  said  Commis- 
sioners may  institute  any  inquiry,  upon  their  own  motion, 
in  the  same  manner  and  to  the  same  effect  as  though  com- 
plaint had  been  made.* 

§  1747.  Railroads  and  telegraph  companies  operated 
under  Sec.  1  Act  Aug.  7,  1888,  shall  allow  other  telegraph 
companies  to  connect  with  them.  That  whenever  any  tele- 
graph company  which  shall  have  accepted  the  provisions 
of  title  sixty-five  of  the  Revised  Statutes  shall  extend  its 
line  to  any  station  or  office  of  a  telegraph  line  belonging 
to  any  one  of  said  railroad  or  telegraph  companies,  re- 
ferred to  in  the  first  section  of  this  Act,  said  telegraph 
company  so  extending  its  line  shall  have  the  right  and 
said  railroad  or  telegraph  company  shall  allow  the  line  of 
said  telegraph  company  so  extending  its  line  to  connect 
with  the  telegraph  line  of  said  railroad  or  telegraph  com- 

3— Sec.   3,  Act  Aug.   7,   1888,  25 
Stat.  383. 

C.  L.— 79 


1250  Ceiminal  Law 

pany  to  which  it  is  extended  at  the  place  where  their  lines 
may  meet,  for  the  jDrompt  and  convenient  interchange  of 
telegraph  business  between  said  companies;  and  such 
railroad  and  telegraph  companies,  referred  to  in  the  first 
section  of  this  Act,  shall  so  operate  their  respective  tele- 
graph lines  as  to  afford  equal  facilities  to  all,  without  dis- 
crimination in  favor  of  or  against  any  person,  company, 
or  coi^poration  whatever,  and  shall  receive,  deliver,  and 
exchange  business  with  connecting  telegraph  lines  on 
equal  terms,  and  affording  equal  facilities,  and  without 
discrimination  for  or  against  any  one  of  such  connecting 
lines ;  and  such  exchange  of  business  shall  be  on  terms  just 
and  equitable.* 

§  1748.  Punishment  of  officers  and  agents  of  railroads 
and  telegraph  companies  failing  to  comply  with  provi- 
sions of  Act  Aug.  7,  1888.  That  any  officer  or  agent  of 
said  railroad  or  telegraph  companies,  or  of  any  company 
operating  the  railroads  and  telegraph  lines  of  said  com- 
panies, who  shall  refuse  or  fail  to  operate  the  telegraph 
lines  of  said  railroad  or  telegraph  companies  under  his 
control,  or  which  he  is  engaged  in  operating,  in  the  man- 
ner directed  in  this  Act  and  by  the  Acts  to  which  it  is  sup- 
plementaiy,  or  who  shall  refuse  or  fail,  in  such  operation 
and  use,  to  afford  and  secure  to  the  Government  and  the 
public  equal  facilities,  or  to  secure  to  each  of  said  con- 
necting telegraph  lines  equal  advantages  and  facilities  in 
the  interchange  of  business,  as  heroin  provided  for,  with- 
out any  discrimination  whatever  for  or  adverse  to  the 
telegraph  line  of  any  or  either  of  said  connecting  com- 
panies, or  shall  refuse  to  abide  by,  or  perform  and  carry 
out  within  a  reasonable  time  the  order  or  orders  of  the 
Interstate  Commerce  Commission,  shall  in  every  such  case 
of  refusal  or  failure  be  guilty  of  a  misdemeanor,  and,  on 
conviction  thereof,  shall  in  every  sucli  case  be  fined  in  a 

4— Roc.   2,   Act    Aug.   7,    1S88,   25 
Stat.  383. 


Telegrai'iis  and  Radios  \'2i')[ 

sum  of  not  exceeding  one  thousand  dollars,  and  may  be 
imprisoned  not  less  than  six  months;  and  in  every  such 
case  of  refusal  or  failure  the  party  ag-grieved  may  not  only 
cause  the  officer  or  agent  guilty  thereof  to  be  prosecuted 
under  the  provisions  of  this  section,  but  may  also  bring 
an  action  for  the  damages  sustained  thereby  against  the 
company  whose  officer  or  agent  may  be  guilty  thereof,  in 
the  circuit  or  district  court  of  the  United  States  in  any 
State  or  Territory  in  which  any  portion  of  the  road  or 
telegraph  line  of  said  company  may  be  situated;  and  in 
case  of  suit  process  may  be  served  upon  any  agent  of  the 
company  found  in  such  State  or  Territory,  and  such  serv- 
ice shall  be  held  by  the  court  good  and  sufficient.^ 

§  1749.  No  use  can  be  made  of  an  apparatus  for  radio 
communication  between  states  v^dthout  license,  penalty. 

That  a  person,  company,  or  corporation  within  the  juris- 
diction of  the  United  States  shall  not  use  or  operate  any 
apparatus  for  radio  communication  as  a  means  of  com- 
mercial intercourse  among  the  several  States,  or  with 
foreign  nations,  or  upon  any  vessel  of  the  United  States 
engaged  in  interstate  or  foreign  commerce,  or  for  the 
transmission  of  radiograms  or  signals  the  effect  of  which 
extends  beyond  the  jurisdiction  of  the  State  or  Territory 
in  which  the  same  are  made,  or  where  interference  would 
be  caused  thereby  with  the  receipt  of  messages  or  signals 
from  beyond  the  jurisdiction  of  the  said  State  or  Terri- 
tory, except  under  and  in  accordance  with  a  license,  revo- 
cable for  cause,  in  that  behalf  granted  by  the  Secretary 
of  Commerce  and  Labor  upon  application  therefor;  but 
nothing  in  this  Act  shall  be  construed  to  apply  to  the 
transmission  and  exchange  of  radiograms  or  signals  be- 
tween points  situated  in  the  same  State :  Provided,  That 
the  effect  thereof  shall  not  extend  beyond  the  jurisdiction 
of  the  said  State  or  interfere  with  the  reception  of  radio- 

5— Sec.   5,   Act   Aug.   7,   1888,  25 
Stat.  384. 


1252  Criminal  Law 

grains  or  signals  from  beyond  said  jurisdiction;  and  a 
license  shall  not  be  required  for  the  transmission  or  ex- 
change of  radiograms  or  signals  by  or  on  behalf  of  the 
Govenmient  of  the  United  States,  but  every  Government 
station  on  land  or  sea  shall  have  special  call  letters  desig- 
nated and  published  in  the  list  of  radio  stations  of  the 
United  States  by  the  Department  of  Commerce  and  Labor. 
Any  person,  company,  or  corporation  that  shall  use  or  op- 
erate any  apparatus  for  radio  communication  in  violation 
of  this  section,  or  knowingly  aid  or  abet  another  person, 
company,  or  corporation  in  so  doing,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall 
be  punished  by  a  fine  not  exceeding  five  hundred  dollars, 
and  the  apparatus  or  device  so  unlawfully  used  and  oper- 
ated may  be  adjudged  forfeited  to  the  United  States.^ 

§  1750.  Unlawful  to  employ  unlicensed  person  to  oper- 
ate radio  apparatus.  That  every  such  apparatus  shall  at 
all  times  while  in  use  and  operation  as  aforesaid  be  in 
charge  or  under  the  supervision  of  a  person  or  persons 
licensed  for  that  purpose  by  the  Secretary  of  Commerce 
and  Labor.  Eveiy  person  so  licensed  who  in  the  operation 
of  any  radio  apparatus  shall  fail  to  observe  and  obey 
regulations  contained  in  or  made  pursuant  to  this  Act  or 
subsequent  Acts  or  treaties  of  the  United  States,  or  any 
one  of  them,  or  who  shall  fail  to  enforce  obedience  thereto 
by  an  unlicensed  person  while  serving  under  his  supervi- 
sion, in  addition  to  the  punishments  and  penalties  herein 
prescribed,  may  suffer  the  suspension  of  the  said  license 
for  a  period  to  be  fixed  by  the  Secretary  of  Commerce  and 
Labor  not  exceeding  one  year.  It  shall  be  unlawful  to 
employ  any  unlicensed  person  or  for  any  unlicensed  per- 
son to  serve  in  charge  or  in  supervision  of  the  use  and 
operation  of  such  apparatus,  and  any  person  violating 
this  provision  shall  be  guilty  of  a  misdemeanor,  and  on 

6_Scc.   1,   Act   Auk.    13,   1912,  .'^7 
Stnt.  302. 


Telegraphs  and  Radios  1253 

conviction  thereof  shall  be  punished  by  a  fine  of  not  more 
than  one  hundred  dollars  or  imprisonment  for  not  more 
than  two  months,  or  both,  in  the  discretion  of  the  court, 
for  each  and  every  such  offense:  Provided,  That  in  case 
of  emergency  the  Secretary  of  Commerce  and  Labor  may 
authorize  a  collector  of  customs  to  issue  a  temporary  per- 
mit, in  lieu  of  a  license,  to  the  operator  on  a  vessel  sub- 
ject to  the  radio  ship  Act  of  June  twenty-fourth,  nine- 
teen hundred  and  ten.'' 

7— Sec.    3,    Act    Aug.    13,    1912, 
37  Stat.  303. 


CHAPTER  LXXXV 

VIRUS  AND  SERUMS 


§  1753.  No  person  shall  sell  or  ex- 
change from  one  state  to 
another  virus  or  other 
serums,  etc. 

§  175-1.  Surgeon  General  of  Army 
and  Navy  and  Marine  Hos- 
pital service  shall  make 
regulations  to  whom  li- 
cense is  granted. 

§  1755.  No  person  shall  interfere 
■with  treasury  department 
under  this   Act. 


§  1756.  No  person  shall  falsely  label 
or  mark  any  package  or 
container  of  virus  or 
serum. 

§  1757.  Violations  of  provisions  of 
drug  act  July  1,  1902,  gen- 
eral provisions. 

§1758.  Act  Mar.  4,  1913,  selling 
any  worthless  viruses  for 
treatment  of  animals,  pen- 
alty for  violation. 


§  1753.  No  person  shall  sell  or  exchange  from  one  state 
to  another  virus  or  other  serums,  etc.  That  from  and  after 
six  months  after  the  promulgation  of  the  regulations  au- 
thorized by  section  four  of  this  Act  no  person  shall  sell, 
barter,  or  exchange,  or  offer  for  sale,  barter,  or  exchange 
in  the  District  of  Columbia,  or  send,  carry,  or  bring  for 
sale,  barter,  or  exchange  from  any  State,  Territory,  or  the 
Disti-ict  of  Columbia  into  any  State,  Territory,  or  the  Dis- 
trict of  Columbia,  or  from  any  foreign  country  into  the 
United  States  or  from  the  United  States  into  any  foreign 
country,  any  virus,  therapeutic  serum,  toxin,  antitoxin,  or 
analogous  product  applicable  to  the  prevention  and  cure 
of  diseases  of  man  unless  (a)  such  virus,  serum,  toxin, 
antitoxin,  or  product  has  been  propagated  and  prepared 
at  an  establishment  holding  an  unsuspended  and  unre- 
voked license,  issued  by  the  Secretary  of  the  Treasury  as 
hereinafter  authorized,  to  propagate  and  prepare  such 
virus,  scrum,  toxin,  anliloxin,  or  jiroduct  for  sale  in  the 
T)isl)-ifi  iif  rtiliiiiibia,  <>r  I'oi'  sciidiiig,  bringing,  or  fanying 

1  -jra 


Virus  and  Serums  1255 

from  place  to  place  aforesaid;  nor  (b)  unless  each  pack- 
age of  such  virus,  serum,  toxin,  antitoxin,  or  product  is 
plainly  marked  with  the  proper  name  of  the  article  con- 
tained therein,  the  name,  address,  and  license  number  of 
the  manufacturer,  and  the  date  beyond  which  the  con- 
tracts can  not  be  expected  beyond  reasonable  doubt  to 
yield  their  specific  results:  Provided,  That  the  suspen- 
sion or  revocation  of  any  license  shall  not  prevent  the  sale, 
barter,  or  exchange  of  any  virus,  serum,  toxin,  antitoxin, 
or  product  aforesaid  which  has  been  sold  and  delivered 
by  the  licentiate  prior  to  such  suspension  or  revocation, 
unless  the  owner  or  custodian  of  such  virus,  serum,  toxin, 
antitoxin,  or  product  aforesaid  has  been  notified  by  the 
Secretary  of  the  Treasury  not  to  sell,  barter,  or  exchange 
the  same.^ 

§  1754.  Surgeon-general  of  army  and  navy  and  marine 
hospital  service  shall  make  regulations  to  whom  license  is 
granted.  That  the  Surgeon-General  of  the  Army,  the  Sur- 
geon-General of  the  Navy,  and  the  supervising  Surgeon- 
General  of  the  Marine  Hospital  Service,  be,  and  they  are 
hereby,  constituted  a  board  with  authority,  subject  to  the 
approval  of  the  Secretary  of  the  Treasury,  to  promulgate 
from  time  to  time  such  rules  as  may  be  necessary  in  the 
judgment  of  said  board  to  govern  the  issue,  suspension, 
and  revocation  of  licenses  for  the  maintenance  of  estab- 
lishments for  the  propagation  and  preparation  of  viruses, 
serums,  toxins,  antitoxins,  and  analogous  products,  ap- 
plicable to  the  prevention  and  cure  of  diseases  of  man, 
intended  for  sale  in  the  District  of  Columbia,  or  to  be  sent, 
carried  or  brought  for  sale  from  any  State,  Territory,  or 
the  District  of  Columbia,  into  any  other  State,  Territory, 
or  the  District  of  Columbia,  or  from  the  United  States  into 
any  foreign  country,  or  from  any  foreign  country  into  the 
United  States;  Provided,  That  all  licenses  issued  for  the 

1— Sec.   1,   Act   July   1,   1902,   32 
Stat.  728. 


1256  Criminal  Law 

maintenance  of  establishments  for  the  propagation  and 
preparation  in  any  foreign  comitry  of  any  virus,  serum, 
toxin,  antitoxin,  or  product  aforesaid,  for  sale,  barter, 
or  exchange  in  the  United  States,  shall  be  issued  upon 
condition  that  the  licentiates  will  permit  the  inspection  of 
the  establishments  where  said  articles  are  propagated 
and  prepared,  in  accordance  with  section  three  of  this 
Act.2 

§  1755.  No  person  shall  interfere  with  Treasury  Depart- 
ment under  this  Act.  That  no  person  shall  interfere  with 
any  officer,  agent,  or  employee  of  the  Treasury  Depart- 
ment in  the  performance  of  any  duties  imposed  upon  him 
by  this  Act  or  by  regulations  made  by  authority  thereof.' 

§  1756.  Kg  person  shall  falsely  label  or  mark  any  pack- 
age or  container  of  virus  or  serum.  That  no  person  shall 
falsely  label  or  mark  any  package  or  container  of  any 
virus,  serum,  toxin,  antitoxin,  or  product  aforesaid:  nor 
alter  any  label  or  mark  on  any  package  or  container  of 
any  virus,  serum,  toxin,  antitoxin,  or  product  aforesaid 
so  as  to  falsify  such  label  or  mark.* 

§  1757.  Violations  of  provisions  of  Drug-  Act  July  1, 
1902.  General  provisions.  Any  peryoii  who  shall  violate, 
or  aid  or  abet  in  violating,  any  of  the  provisions  of  this 
Act  shall  be  punished  by  a  fine  not  exceeding  five  hun- 
dred dollars  or  by  imprisonment  not  exceeding  one  year, 
or  by  both  such  fine  and  imprisonment,  in  the  discretion 
of  the  court.' 

§  1758.  Act  March  4, 1913,  selling  any  worthless  viruses 
for  treatment  of  animals.  Penalty  for  violation.  From 
and  after  July  first,  iiiiR'ti'cii  Imiidicd  and  tliirU'Cii,  it  shall 

2_Scc.   4,  Act   July   1,    1902,   32  4— Sec.   2,   Act   .Tiily   1,    1902,   32 

Stat.  729.  Stnt.  729. 

3— Sec.   G,  Act   .July    1,    1902,   32  5— Sec.   7,   Act   .July    1,    1902,   32 

Stat.  729.  Stat.  729. 


Virus  and  Serums  1257 

be  unlawful  for  any  person,  firm,  or  corporation  to  pre-' 
pare,  sell,  barter,  or  exchange  in  the  District  of  Columbia, 
or  in  the  Territories,  or  in  any  place  under  the  jurisdic- 
tion of  the  United  States,  or  to  ship  or  deliver  for  ship- 
ment from  the  State  or  Territory  or  the  District  of 
Columbia  to  any  other  State  or  Territory  or  the  District 
of  Columbia,  any  worthless,  contaminated,  dangerous,  or 
harmful  virus,  serum,  toxin,  or  analogous  product  in- 
tended for  use  in  the  treatment  of  domestic  animals,  and 
no  person,  firm,  or  corporation  shall  prepare,  sell,  barter, 
exchange,  or  ship  as  aforesaid  any  virus,  serum,  toxin,  or 
analogous  product  manufactured  within  the  United  States 
and  intended  for  use  in  the  treatment  of  domestic  animals, 
unless  and  until  the  said  virus,  serum,  toxin,  or  analogous 
product  shall  have  been  prepared,  under  and  in  compli- 
ance with  regulations  prescribed  by  the  Secretary  of  Agri- 
culture, at  an  establishment  holding  an  unsuspended  and 
unrevoked  license  issued  by  the  Secretary  of  Agriculture 
as  hereinafter  authorized. 

The  importation  into  the  United  States,  without  a  per- 
mit from  the  Secretary  of  Agriculture,  of  any  virus, 
serum,  toxin,  or  analogous  product  for  use  in  the  treat- 
ment of  domestic  animals,  and  the  importation  of  any 
worthless,  contaminated,  dangerous,  or  harmful  virus, 
serum,  toxin,  or  analogous  product  for  use  in  the  treat- 
ment of  domestic  animals  is  herebj^  prohibited.  The 
Secretary  of  Agriculture  is  hereby  authorized  to  cause  the 
Bureau  of  Animal  Industry  to  examine  and  inspect  all 
viruses,  serums,  toxins,  and  analogous  products,  for  use 
in  the  treatment  of  domestic  animals,  which  are  being  im- 
ported or  offered  for  importation  into  the  United  States, 
to  determine  whether  such  viruses,  serums,  toxins,  and 
analogous  products  are  worthless,  contaminated,  danger- 
ous, or  harmful,  and  if  it  shall  appear  that  any  such  virus, 
serum,  toxin,  or  analogous  product,  for  use  in  the  treat- 
ment of  domestic  animals,  is  worthless,  contaminated, 
dangerous,  or  harmful,  the  same  shall  be  denied  entry  and 


1258  Criminal  Law 

shall  be  destroyed,  or  returned  at  the  expense  of  the  owner 
or  importer. 

The  Secretary  of  Agriculture  be,  and  hereby  is,  author- 
ized to  make  and  promulgate  from  time  to  time  such  rules 
and  regulations  as  may  be  necessary  to  prevent  the  prep- 
aration, sale,  barter,  exchange,  or  shipment  as  aforesaid 
of  any  worthless,  contaminated,  dangerous,  or  harmful 
virus,  serum,  toxin,  or  analogous  product  for  use  in  the 
treatment  of  domestic  animals,  and  to  issue,  suspend,  and 
revoke  licenses  for  the  maintenance  of  establishments  for 
the  preparation  of  viruses,  serums,  toxins,  and  analogous 
products,  for  use  in  the  treatment  of  domestic  animals, 
intended  for  sale,  barter,  exchange,  or  shipment  as  afore- 
said. 

The  Secretary  of  Agriculture  is  hereby  authorized  to 
issue  permits  for  the  importation  into  the  United  States 
of  viruses,  serums,  toxins,  and  analogous  products,  for  use 
in  the  treatment  of  domestic  animals,  which  are  not 
worthless,  contaminated,  dangerous,  or  harmful. 

All  licenses  issued  under  authority  of  this  Act  to  estab- 
lishments where  such  viruses,  serums,  toxins,  or  analo- 
gous products  are  prepared  for  sale,  barter,  exchange,  or 
shipment  as  aforesaid,  shall  be  issued  on  condition  that 
the  licensee  shall  pemiit  the  inspection  of  such  establish- 
ments and  of  such  products  and  their  preparation;  and 
the  Secretary  of  Agriculture  may  suspend  or  revoke  any 
permit  oi-  license  issued  under  authority  of  this  Act,  after 
opporl unity  for  hearing  has  been  granted  the  licensee  or 
importer,  when  the  Secretary  of  Agriculture  is  satisfied 
Ihat  sucli  license  or  permit  is  being  used  to  facilitate  or 
effect  the  preparation,  sale,  barter,  exchange,  or  shipment 
as  afoi-osaid,  oi-  tlie  importation  into  tlie  United  States  of 
any  worthless,  contaminated,  dangerous,  or  harmful  virus, 
serum,  toxin,  or  analogous  product  for  use  in  the  treat- 
ment of  domestic  animals.  Any  oHicer,  agent,  or  employee 
of  the  Department  of  Agi'iculture  duly  authorized  by  the 
Secretary  of  Agriculture  for  the  purpose  may,  at  any  hour 


Virus  and  Serums  •      1259 

during-  the  daytime  or  nighttime,  enter  and  inspect  any 
establishment  licensed  under  this  Act  where  any  virus, 
serum,  toxin,  or  analogous  product  for  use  in  the  treat- 
ment of  domestic  animals  is  prepared  for  sale,  barter,  ex- 
change, or  shipment  as  aforesaid. 

Any  person,  firm,  or  corporation  who  shall  violate  any 
of  the  provisions  of  this  Act  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall,  upon  conviction,  be  punished  by 
a  fine  of  not  exceeding  $1,000  or  by  imprisonment  not  ex- 
ceeding one  year,  or  by  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court.® 

6— Act  Mar.  4,  1913,  37  Stat.  832. 


CHAPTER  LXXXVI 

PEEMANENT  WAR  LEGISLATION 


§  1761.  During  a  war  U.  S.  is  not 
engaged  in,  unlawful  to 
import  from  such  country, 
unlawful  to  give  advan- 
tage to  any  person,  etc., 
and  for  vessel  to  depart 
without  clearance,  penalty. 

§  1762.  Eegistration  as  soldier,  pun- 
ishment for  failure  to  do 
so. 

§  1763.  Prosecuting  bawdy  house  at 
or  near  military  camps, 
punishment. 

§  1764.  Punishment  making  false 
statement  on  false  regis- 
tration. 

S  176.3.  Trading  with  the  Enemy 
Act,  punishment,  provi- 
sions. 

§  1766.  Punishment  for  injuring, 
destroying,  etc.,  war  ma- 
terial, premises,  or  utili- 
ties, specified  acts. 


§  1767.  Punishment  for  obstructing, 
etc.,  United  States  or  as- 
sociate nation  in  carrying 
on  the  war,  specified  acts. 

§  1768.  Making  false  statement  in 
affidavit  guilty  of  perjury. 

§  1769.  Selective  Service  Act,  failing 
to  perform  duties  under, 
punishment. 

§  1770.  Carriers  under  federal  con- 
trol, violation,  punish- 
ment. 

§  1771.  Title  XII,  army  emergency 
increase,  selective  draft, 
amended  by  Act  May  16, 
1918,  Act  of  June  15, 
1917. 

§  1772.  Food  control. 

§  1773.  Former  punishments  for 
specified  offenses,  repealed. 

§  1774.  Violation  of  War  Finance 
Act  April  5,  1918,  pun- 
ishment. 


§  1761.  During-  a  war  United  States  is  not  engaged  in, 
unlawful  to  import  from  such  country,  unlawful  to  give 
advantaige  to  any  person,  etc.,  and  for  vessel  to  depart 
without  clearance — Penalty.  That  whoiiovor  diuiiig  the 
existence  of  a  war  in  which  the  United  States  is  not 
engaged,  the  President  shall  be  satisfied  that  there  is 
reasonable  ground  to  believe  that  under  the  laws,  regu- 
lations, or  practices  of  any  country,  colony,,  or  depend- 
ency contrary  to  the  law  and  practice  of  nations,  the 
importation   into   their  own  or  any  other  country,   de- 

1260 


Peemanent  War  Legislation  1261 

pendency,  or  colony  of  any  article  the  product  of  the 
soil  or  industry  of  the  United  States  and  not  injurious 
to  health  or  morals  is  prevented  or  restricted  the  Presi- 
dent is  authorized  and  empowered  to  prohibit  or  re- 
strict during  the  period  such  prohibition  or  restriction 
is  in  force,  the  importation  into  the  United  States  of 
similar  or  other  articles,  products  of  such  country, 
dependency,  or  colony  as  in  his  opinion  the  public 
interest  may  require;  and  in  such  case  he  shall  make 
proclamation  stating  the  article  or  articles  which  are 
prohibited  from  importation  into  the  United  States;  and 
any  person  or  persons  who  shall  import,  or  attempt  or 
conspire  to  import,  or  be  concerned  in  importing,  such 
article  or  articles,  into  the  United  States  contrary  to  the 
prohibition  in  such  proclamation,  shall  be  liable  to  a  fine 
of  not  less  than  $2,000  nor  more  than  $50,000,  or  to  im- 
prisonment not  to  exceed  two  years,  or  both,  in  the  dis- 
cretion of  the  court.  The  President  may  change,  modify, 
revoke,  or  renew  such  proclamation  in  his  discretion. 

Whenever,  during  the  existence  of  war  in  which  the 
United  States  is  not  engaged,  the  President  shall  be  sat- 
isfied that  there  is  reasonable  ground  to  believe  that  any 
vessel,  American  or  foreign,  is,  on  account  of  the  laws, 
regulations,  or  practices  of  a  belligerent  Government, 
making  or  giving  any  undue  or  unreasonable  preference 
or  advantage  in  any  particular  person,  company,  firm,  or 
corporation,  or  any  particular  description  of  traffic  in  the 
United  States  or  its  possessions,  or  any  citizens  of  the 
United  States  residing  in  neutral  countries  abroad  to  any 
undue  or  unreasonable  prejudice,  disadvantage,  injuiy, 
or  discrimination  in  regard  to  accepting,  receiving,  trans- 
porting, or  delivering,  or  refusing  to  accept,  receive,  trans- 
fer, or  deliver  any  cargo,  freight  or  passengers,  or  in  any 
other  respect  whatsoever,  he  is  hereby  authorized  and  em- 
powered to  direct  the  detention  of  such  vessels  by  with- 
holding clearance  or  by  formal  notice  forbidding  depart- 
ure, and  to  revoke,  modify,  or  renew  any  such  direction. 


1262  Criminal  Law 

Whenever,  during  the  existence  of  a  war  in  w^hicb  the 
United  States  is  not  engaged,  the  President  shall  be  sat- 
isfied that  there  is  reasonable  ground  to  believe  that 
under  the  laws,  regulations,  or  practices  of  any  belliger- 
ent country  or  Government,  American  ships  or  American 
citizens  are  not  accorded  any  of  the  facilities  of  com- 
merce which  the  vessels  or  citizens  of  that  belligerent 
country  enjoy  in  the  United  States  of  its  privileges  or 
facilities  of  trade  with  vessels  or  citizens  of  any  national- 
ity other  than  that  of  such  belligerent,  the  President  is 
hereby  authorized  and  empowered  to  withhold  clearance 
from  one  or  more  vessels  of  such  belligerent  country 
until  such  belligerent  shall  restore  to  such  American  ves- 
sels and  American  citizens  reciprocal  liberty  of  commerce 
and  equal  facilities  of  trade ;  or  the  President  may  direct 
that  similar  privileges  and  facilities,  if  any,  enjoyed  by 
vessels  of  citizens  of  such  belligerent;  and  in  such  case  he 
shall  make  proclamation  of  his  direction,  stating  the  facil- 
ities and  privileges  which  shall  be  refused,  and  the  bel- 
ligerent to  whose  vessels  or  citizens  they  are  to  be  refused, 
and  thereafter  the  furnishing  of  such  prohibited  priv- 
ileges and  facilities  to  any  vessel  or'citizen  of  the  belliger- 
ent named  in  such  proclamation  shall  be  unlawful;  and 
he  may  change,  modify,  revoke,  or  renew  such  proclama- 
tion; and  any  person  or  persons  who  shall  furnish  or  at- 
tempt or  conspire  to  furnish  or  be  concerned  in  furnishing 
or  in  the  concealment  or  furnishing  facilities  or  privileges 
to  ships  or  persons  contrary  to  the  pr()liil)iru)n  in  such 
proclamation  shall  be  liable  to  a  fine  of  not  less  than 
$2,000  nor  more  than  $50,000  or  to  imprisonment  not  to 
exceed  two  years,  or  botli,  in  the  discretion  of  the  court. 
In  case  any  vessel  wliich  is  detained  by  virtue  of  tliis  Act 
shall  depart  or  ailciiipi  io  dcp.-ni  fioni  llic  Jurisdiction 
of  the  United  States  without  clearance  or  oilier  lawful  au- 
thority, the  owner  or  master  or  jierson  or  persons  ha\ing 
charge  or  command  of  such  vessel  shall  be  severally  liable 
1(.  ;i  fiiir  (.f  ii(»1  less  lliaii  $2,000  nor  mnrr  ilian  $10,000,  or 


Permanent  War  TjEcisi.ation  1263 

to  imprisonment  not  to  exceed  two  years,  or  both,  and 
in  addition  such  vessel  shall  be  forfeited  to  the  United 
States.  The  President  of  the  United  States  is  hereby  au- 
thorized and  empowered  to  enipk)y  such  part  of  the  land 
or  naval  forces  of  the  United  States  as  shall  be  necessary 
to  carry  out  the  purposes  of  this  Act.^ 

§  1762.  Registration  as  soldier,  punishment  for  failure 
to  do  so.  That  all  male  persons  between  the  ages  of  twen- 
ty-one and  thirty,  both  inclusive,  shall  be  subject  to  reg- 
istration in  accordance  with  regulations  to  be  prescribed 
by  the  President ;  and  upon  proclamation  by  the  President 
or  other  public  notice  given  by  him  or  by  his  direction 
stating  the  time  and  place  of  such  registration  it  shall  be 
the  duty  of  all  persons  of  the  designated  ages,  except  offi- 
cers and  enlisted  men  of  the  Regular  Army,  the  Navy,  and 
the  National  Guard  and  Naval  Militia  while  in  the  service 
of  the  United  States,  to  present  themselves  for  and  submit 
to  registration  under  the  provisions  of  this  Act;  and  every 
such  person  shall  be  deemed  to  have  notice  of  the  require- 
ments of  this  Act  upon  the  publication  of  said  proclama- 
tion or  other  notice  as  aforesaid  given  by  the  President 
or  by  his  direction;  and  any  person  who  shall  wilfully  fail 
or  refuse  to  present  himself  for  registration  or  to  submit 
thereto  as  herein  provided,  shall  be  guilty  of  a  misde- 
meanor and  shall,  upon  conviction  in  the  district  court  of 
the  United  States  having  jurisdiction  thereof,  be  punished 
by  imprisonment  for  not  more  than  one  year,  and  shall 
thereupon  be  duly  registered;  Provided,  That  in  the  call 
of  the  docket  precedence  shall  be  given,  in  courts  trying 
the  same,  to  the  trial  of  criminal  proceedings  under  this 
Act:  Provided  further,  That  persons  shall  bo  subject  to 
registration  as  herein  provided  who  shall  have  attained 
their  twenty-first  birthday  and  who  shall  not  have  at- 
tained thirty-first  birthday  on  or  before  the  day  set  for 

1— Act  Sept.,  1916,  39  Stat.  799. 


1264  Criminal  Law 

the  registration,  and  all  persons  so  registered  shall  be 
and  remain  subject  to  draft  into  the  forces  hereby  au- 
thorized, unless  exempted  or  excused  therefrom  as  in  this 
Act  provided :  Provided  further,  That  in  the  case  of  tem- 
porary absence  from  actual  place  of  legal  residence  of  any 
person  liable  to  registration  as  provided  herein  such  reg- 
istration may  be  made  by  mail  under  regulations  to  be 
prescribed  by  the  President.'^ 

§  1763.  Prosecuting  bawdy  house  at  or  near  military 
camp — punishment.    That  the  Secretary  of  War  is  hereby 
authorized,  empowered,  and  directed  during  the  present 
war  to  do  everything  by  him  deemed  necessary  to  sup- 
press and  prevent  the  keeping  or  setting  up  of  houses  of 
ill  fame,  brothels,  or  bawdy  houses  w^ithin  such  distance 
as  he  may  deem  needful  of  any  military  camp,  station, 
fort,  post,  cantonment,  training,  or  mobilization  place,- 
and  any  person,  corporation,  partnership,  or  association 
receiving  or  permitting  to  be  received  for  immoral  pur- 
poses any  person  into  any  place,  structure,  or  building 
used  for  the  purpose  of  lewdness,  assignation,  or  prostitu- 
tion  within   such   distance   of   said   places   as   may   be 
designated,  or  shall  permit  any  such  person  to  remain  for 
immoral  purposes  in  any  such  place,  structure,  or  build- 
ing as  aforesaid,  or  who  shall  circulate  any  order,  rule,  or 
regulation  issued  to  carry  out  the  object  and  purpose  of 
this  section  shall,  unless  otherwise  punishable  under  the 
Articles  of  War,  be  deemed  guilty  of  a  misdemeanor  and 
be  punished  by  a  fine  of  not  more  than  $1,000,  or  im])rison- 
ment  for  not  more  than  twelve  months,  or  both.^ 

§  1764.  Punishment  making  false  statement  on  false 
registration.  That  the  President  is  hereby  autiioii/cd  to 
utilize  the  service  of  any  or  all  departments  and  any  oi-  ;ill 

2_Scc.  5,  Act  May  IS,  1017,  lO  St;i).  S3.  (Tliis  is  .lonrlTrcl  iv." 
Stat     80  .-iricr   I'liiliii^  (if   tlif  \v;ir   with   (icr- 

3— Sec.  13,  Act  May  IS,  l'J17,   lU       in.Miv.) 


Permanent  War  Legislation  1265 

officers  or  agents  of  the  United  States  and  of  the  several 
States,  Territories,  and  the  District  of  Columbia,  and  sub- 
divisions thereof,  in  the  execution  of  this  Act,  and  all  offi- 
cers and  agents  of  the  United  States  and  of  the  several 
States,  Territories,  and  subdivisions  thereof,  and  of  the 
District  of  Columbia,  and  all  persons  designated  or  ap- 
pointed under  regulations  prescribed  by  the  President 
whether  such  appointments  are  made  by  the  President 
himself  or  by  the  governor  or  other  officer  of  any  State  or 
Territory  to  perform  any  duty  in  the  execution  of  this 
Act,  are  hereby  required  to  perform  such  duty  as  the 
President  shall  order  or  direct,  and  all  such  officers  and 
agents  and  persons  so  designated  or  appointed  shall 
hereby  have  full  authority  for  all  acts  done  by  them  in  the 
execution  of  this  Act  by  the  direction  of  the  President. 
Correspondence  in  the  execution  of  this  Act  may  be  car- 
ried in  penalty  envelopes  bearing  the  frank  of  the  War 
Department.  Any  person  charged  as  herein  provided 
with  the  duty  of  carrying  into  effect  any  of  the  provisions 
of  this  Act  or  the  regulations  made  or  directions  given 
thereunder  who  shall  fail  or  neglect  to  perform  such  duty ; 
and  any  person  charged  with  such  duty  or  having  and 
exercising  any  authority  under  said  Act,  regulations,  or 
directions,  who  shall  knowingly  make  or  be  a  party  to  the 
making  of  any  false  or  incorrect  registration,  physical 
examination,  exemption,  enlistment,  enrollment,  or  mus- 
ter, and  any  person  who  shall  make  or  be  a  party  to  the 
making  of  any  false  statement  or  certificate  as  to  the 
fitness  or  liability  of  himself  or  any  other  person  for  serv- 
ice under  the  provisions  of  this  Act,  or  regulations  made 
by  the  President  thereunder,  or  otherwise  evades  or  aids 
another  to  evade  the  requirements  of  this  Act  or  of  said 
regulations,  or  who,  in  any  manner,  shall  fail  or  neglect 
fully  to  perform  any  duty  required  of  him  in  the  execu- 
tion of  this  Act,  shall,  if  not  subject  to  military  law%  be 
guilty  of  a  misdemeanor,  and  upon  conviction  in  the  dis- 
trict  court    of   the   United   States   having   jurisdiction 

C.  L.— 80 


1266  Ceiminal  Law 

thereof,  be  punished  by  imprisonment  for  not  more  than 
one  year,  or,  if  subject  to  militaiy  law,  shall  be  tried  by 
courtmartial  and  suffer  such  punishment  as  a  court- 
martial  may  direct.* 

§  1765.  Trading  with  the  Enemy  Act,  punishment,  pro- 
visions. That  whoever  shall  wilfully  violate  any  of  the 
provisions  of  this  Act  or  of  any  license  rule,  or  regulation 
issued  thereunder,  and  whoever  shall  wilfully  violate, 
neglect,  or  refuse  to  comply  with  any  order  of  the  Presi- 
dent issued  in  compliance  with  the  provisions  of  this  Act 
shall,  upon  conviction,  be  fined  not  more  than  $10,000,  or, 
if  a  natural  person,  imprisoned  for  not  more  than  ten 
years,  or  both;  and  the  officer,  director,  or  agent  of  any 
corporation  who  knowingly  participates  in  such  violation 
shall  be  punished  by  a  like  fine,  imprisonment,  or  both, 
and  any  property,  funds,  securities,  papers,  or  other 
articles  or  documents,  or  any  vessel,  together  with  her 
tackle,  apparel,  furniture,  and  equipment,  concerned  in 
such  violation  shall  be  forfeited  to  the  United  States.*^ 

§  1766.  Punishment  for  injuring,  destroying,  etc.,  war 
material,  premises,  or  utilities.  Specified  Acts.  That 
when  the  United  Slates  is  at  war,  whoever,  with  intent  to 
injure,  interfere  witli,  or  obstruct  the  United  States  or 
any  associate  nation  in  preparing  for  or  carrying  on  the 
war,  or  whoever,  with  reason  to  believe  that  his  act 
may  injure,  interfere  with,  or  obstruct  the  United  States 
or  any  associate  nation  in  preparing  for  or  carrying  on 
tlie  war,  shall  wilfully  injure  or  destroy,  or  sliall  attempt 
to  so  injure  or  destroy,  any  war  material,  war  premises, 
or  war  utilities,  as  herein  defined,  shall  upon  conviction 
thereof,  be  fined  not  more  than  $10,000  or  imprisoned  not 
more  than  tliirty  years,  or  both.® 

4— Sec.  6,    Act    May    IH,    1917,   40  (>— Soc.   1,   Art  Aj.r.   L'O,   1918,  40 

Stat.   81.  R<nt,-  5M. 

5_Sec.  in,  Oct.  0,  1017,  40  Stat. 
425. 


Permanent  War  Legislation  1267 

§  1767.  Punishment  for  obstructing,  etc.,  United  States 
or  associate  nation  in  carrying  on  the  war.  Specified  acts. 
That  when  the  United  States  is  at  war,  whoever,  wilh  in- 
tent to  injure,  interfere  with,  or  obstruct  the  United 
States  or  any  associate  nation  in  preparing  for  or  carrying 
on  the  war,  or  wlioever,  with  reason  to  believe  that  his  act 
may  injure,  interfere  with,  or  obstruct  the  United  States 
or  any  associate  nation  in  preparing  for  or  carrying  on  the 
war,  shall  wilfully  make  or  cause  to  be  made  in  a  defective 
manner,  or  attempt  to  make  or  cause  to  be  made  in  a 
defective  manner,  any  war  material,  as  herein  defined,  or 
any  tool,  implement,  machine,  utensil,  or  receptacle  used 
or  employed  in  making,  producing,  manufacturing,  or 
repairing  any  such  war  material,  as  herein  defined,  shall 
upon  conviction  thereof,  be  fined  not  more  than  $10,000 
or  imprisoned  not  more  than  thirty  years,  or  both.''' 

§  1768.  Making  false  statement  in  affidavit  guilty  of 
perjury.  Ten  days  after  the  approval  of  this  Act  and 
until  the  end  of  the  war,  it  shall  be  unlawful  for  any  per- 
son, firm,  corporation,  or  association,  to  print,  publish,  or 
circulate,  or  cause  to  be  printed,  published,  or  circulated 
in  any  foreign  language,  any  news  item,  editorial  or  other 
printed  matter,  respecting  the  Government  of  the  United 
States,  or  of  any  nation  engaged  in  the  present  war,  its 
policies,  international  relations,  the  state  or  conduct  of  the 
war,  or  any  matter  relating  thereto :  Provided,  That  this 
section  shall  not  apply  to  any  print,  newspaper,  or  publi- 
cation where  the  publisher  or  distributor  thereof,  on  or 
before  offering  the  same  for  mailing,  or  in  any  manner 
distributing  it  to  the  public,  has  filed  with  the  postmaster 
at  the  place  of  publication,  in  the  form  of  an  affidavit,  a 
true  and  complete  translation  of  the  entire  article  contain- 
ing such  matter  proposed  to  be  published  in  such  print, 
newspaper,  or  publication  and  has  caused  to  be  printed, 

7— Sec.  2,  Act  Apr.   20,   1918,  40 
Stat.   534. 


1268  Criminal  Law 

in  plain  type  in  the  English  language,  at  the  head  of  each 
such  item,  editorial,  or  other  matter,  on  each  copy  of  such 
print,  newspaper,  or  publication,  the  words  ' '  True  trans- 
lation filed  with  the  postmaster  at  on 
(naming  the  post-office  where  the  translation  was  filed, 
and  the  date  of  filing  thereof),  as  required  by  the  Act  of 
(here  giving  the  date  of  this  Act). 
Any  print,  newspaper,  or  publication  in  any  foreig-n 
language  which  does  not  conform  to  the  provisions  of  this 
section  is  hereby  declared  to  be  nonmailable,  and  it  shall 
be  unlawful  for  any  person,  firm,  corporation,  or  associa- 
tion, to  transport,  carry,   or  otherAvise  publish  or  dis- 
tribute the  same,  or  to  transport,  carry  or  otherwise  pub- 
lish or  distribute  any  matter  which  is  made  nonmailable 
by  the  provisions  of  the  Act  relating  to  espionage,  ap- 
proved June  fifteenth,  nineteen  hundred  and  seventeen: 
Provided  further,  That  upon  evidence  satisfactory  to  him 
that  any  print,  newspaper,  or  publication  printed  in  a 
foreign  language  may  be  printed,  published,  and  distrib- 
uted free  from  the  foregoing  restrictions  and  conditions 
without  detriment  to  the  United  States  in  the  conduct  of 
the  present  war,  the  President  may  cause  to  be  issued 
to  the  printers  or  publishers  of  such  print,  newspaper,  or 
publication,  a  permit  to  print,  publish,  and  circulate  the 
issue  or  issues  of  their  print,  newspaper,  or  publications, 
free  from  such  restrictions  and  requirements,  such  per- 
mits to  be  subject  to  revocation  at  his  discretion.    And 
the  Postmaster-General  shall  cause  copies  of  all  such  per- 
mits and  revocations  of  permits  to  be  furnished  to  the 
postmaster  of  the  post-office  serving  the  place  from  which 
tlic  print,  newspaper,  or  i)ublicali()ii,  granted  the  permit 
is  to  emanate.     All  matter  pi-intcd,  publislied  jiiid  dis- 
tribnU'd  under  permits  shall  bear  at  tiie  head  thereof  in 
plain  type  in  the  English  language,  the  words,  **  Published 
and  distributed  under  permit  authorized  l)y  ilie  Act  of 
(here  giving  date  of  this  Act),  on  file  at  tlie 
post-office  of                       (giving  nnme  of  office)." 


Permanent  War  Legislation  1269 

Any  person  who  shall  make  an  affidavit  containing  any 
false  statement  in  connection  with  the  translation  pro- 
vided for  in  this  section  shall  be  guilty  of  the  crime  of 
perjury  and  subject  to  the  punishment  provided  therefor 
by  section  one  hundred  and  twenty-five  of  the  Act  of 
March  fourth,  nineteen  hundred  and  nine,  entitled  ''An 
Act  to  codify,  revise,  and  amend  the  penal  laws  of  the 
United  States,"  and  any  person,  firm,  corporation,  or  asso- 
ciation, violating  any  other  requirements  of  this  section 
shall,  on  conviction  thereof,  be  punished  by  a  fine  of  not 
more  than  $500,  or  by  imprisonment  of  not  more  than  one 
year,  or,  in  the  discretion  of  the  court,  may  be  both  fined 
and  imprisoned.' 

§  1769.  Selective  Service  Act,  failing  to  perform  duties 
under,  punishment.  The  President  is  hereby  authorized 
to  utilize  the  service  of  any  or  all  departments  and  any 
or  all  officers  or  agents  of  the  United  States  and  of  the 
several  States,  Territories,  and  the  District  of  Columbia, 
and  subdivisions  thereof,  in  the  execution  of  this  Act, 
and  all  officers  and  agents  of  the  United  States  and  subdi- 
visions thereof,  and  of  the  District  of  Columbia,  and  all 
persons  designated  or  appointed  under  regulations  pre- 
scribed by  the  President,  whether  such  appointments  are 
made  by  the  President  himself  or  by  the  governor  or 
other  officer  of  any  State  or  Territory,  to  perforai  any 
duty  in  the  execution  of  this  Act,  are  hereby  required  to 
perform  such  duty  as  the  President  shall  order  or  direct, 
and  all  such  officers  and  agents  and  persons  so  designated 
or  appointed  shall  hereby  have  full  authority  for  all  acts 
done  by  them  in  the  execution  of  this  Act  by  the  direction 
of  the  President.  Correspondence  in  the  execution  of  this 
Act  may  be  carried  in  penalty  envelopes  bearing  the  frank 
of  the  War  Department.  Any  person  charged  as  herein 
provided  with  the  duty  of  carrying  into  effect  any  of  the 

8—40    Stat,    at    Large    425,    Act 
Oct.   6,  1917. 


1270  Ceiminal  Law 

provisions  of  this  Act  or  the  regulations  made  or  direc- 
tions given  thereunder  who  shall  fail  or  neglect  to  perf orai 
such  duty;  and  any  person  charged  with  such  duty  or 
having  and  exercising  any  authority  under  said  Act,  regu- 
lations, or  directions,  who  shall  knowingly  make  or  be  a 
party  to  the  making  of  any  false  or  incorrect  registration, 
physical  examination,  exemption,  enlistment,  enrollment, 
or  muster;  and  any  person  who  shall  make  or  be  a  party 
to  the  making  of  any  false  statement  or  certificate  as  to 
the  fitness  or  liability  of  himself  or  any  other  person  for 
service  under  the  provisions  of  this  Act,  or  regulations 
made  by  the  President  thereunder,  or  otherwise  evades 
or  aids  another  to  evade  the  requirements  of  this  Act  or 
of  said  regulations,  or  who,  in  any  manner,  shall  fail  or 
neglect  fully  to  perform  any  duty  required  of  him  in  the 
execution  of  this  Act,  shall,  if  not  subject  to  military  law, 
be  guilty  of  a  misdemeanor,  and  upon  conviction  in  the 
district  court  of  the  United  States  having  jurisdiction 
thereof,  be  punished  by  imprisonment  for  not  more  than 
one  year,  or,  if  subject  to  militaiy  law,  shall  be  tried  by 
court-martial  and  suffer  such  punishment  as  a  court-mar- 
tial  may  direct.® 

§  1770.  Carriers  under  Federal  control,  violation,  pun- 
ishment. That  every  person  or  coi-poration,  whether  car- 
rier or  shipper,  or  any  receiver,  trustee,  lessee,  agent,  or 
person  acting  for  or  employed  by  a  carrier  or  shipper,  or 
other  person,  who  shall  knowingly  violate  or  fail  to  ob- 
serve any  of  the  provisions  of  this  Act,  or  sliall  know- 
ingly interfere  with  or  impede  the  possession,  use,  opera- 
tion, or  control  of  any  railroad  property,  railroad,  or 
transportation  system  hitherto  or  hereafter  taken  over  by 
the  President,  or  sli.ill  knowingly  violate  any  of  the  pro- 
visions of  any  order  or  regulation  made  in  pursuance  of 
this  Act,  shall  be  guilty  of  a  inisdcmeanor,  and  shall,  upon 

0 — 40   Stat,    at   Large,    Act   May 
18,  1917. 


Permanent  War  Legislation  1271 

conviction,  be  punished  by  a  fine  of  not  more  than  $5,000, 
or,  if  a  person,  by  imprisonment  for  not  more  than  two 
years,  or  both.  Each  independent  transaction  constitut- 
ing a  violation  of,  or  a  failure  to  observe,  any  of  the  pro- 
visions of  this  Act,  or  any  order  entered  in  pursuance 
hereof,  shall  constitute  a  separate  offense.  For  the  taking 
or  conversion  to  his  own  use  or  the  embezzlement  of 
money  or  property  derived  from  or  used  in  connection 
with  the  possession,  use,  or  operation  of  said  railroads  or 
transportation  systems,  the  criminal  statutes  of  the 
United  States,  as  well  as  the  criminal  statutes  of  the  vari- 
ous States  where  applicable,  shall  apply  to  all  officers, 
agents,  and  employees  engaged  in  said  railroad  and  trans- 
portation service,  while  the  same  is  under  Federal  control, 
to  the  same  extent  as  to  persons  employed  in  the  regular 
service  of  the  United  States.  Prosecutions  for  violations 
of  this  Act  or  of  any  order  entered  hereunder  shall  be  in 
the  district  courts  of  the  United  States,  under  the  direc- 
tion of  the  Attorney  General,  in  accordance  with  the  pro- 
cedure for  the  collection  and  imposing  of  fines  and  penal- 
ties now  existing  in  said  courts.'^" 

§  1771.  Title  XII.  Army  emergency  increase.  Select- 
ive draft.  Amended  by  Act  May  16,  1918,  Act  of  June  15, 
1917.  Resolved  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled. That  if  under  any  regulations  heretofore  or  hereafter 
prescribed  by  the  President  persons  registered  and  liable 
for  military  service  under  the  terms  of  the  Act  of  Con- 
gress approved  Mny  eighteenth,  nineteen  hundred  and 
seventeen,  ehtitled  *'An  Act  to  authorize  the  President  to 
increase  temporarily  the  Military  Establishment  of  the 
United  States,"  are  placed  in  classes  for  the  purpose  of 
determining  their  relative  liability  for  military  service, 
no  provision  of  said  Act  shall  prevent  the  President  from 

10— Sec.    11,    Oct.    21,    1918,    40 
Stat.  457. 


1272  Criminal  Law 

calling  for  immediate  military  service,  under  regulations 
heretofore  or  hereafter  prescribed  by  the  President,  all  or 
part  of  the  persons  in  any  class  or  classes  except  those  ex- 
empt from  draft  under  the  provisions  of  said  Act,  in  pro- 
jDortion  to  the  total  number  of  persons  placed  in  such 
class  or  classes  in  the  various  subdivisions  of  the  States, 
Territories,  and  the  District  of  Columbia  designated  by 
the  President  under  the  terms  of  said  Act  or  from  calling 
into  immediate  militaiy  service  persons  classed  as  skilled 
experts  in  industry  or  agriculture,  however  classified  or 
wherever  residing.^^ 

§  1772.  Food  control.     That  section  4  of  such  Act  of 
August  10, 1917,  is  hereby  amended  to  read  as  follows : 

'  *  That  it  is  hereby  made  unlawful  for  any  person  wil- 
fully to  destroy  any  necessaries  for  the  purpose  of  enhanc- 
ing the  price  or  restricting  the  supply  thereof;  knowingly 
to  commit  waste  or  wilfully  to  permit  preventable  deterio- 
ration of  any  necessaries  in  or  in  connection  with  their 
production,  manufacture,  or  distribution;  to  hoard,  as 
defined  in  section  6  of  this  Act,  any  necessaries,  to  mo- 
nopolize or  attempt  to  monopolize,  either  locally  or  gen- 
erally, any  necessaries;  to  engage  in  any  discriminatory 
and  unfair,  or  any  deceptive  or  wasteful  practice  or 
device,  or  to  make  any  unjust  or  unreasonable  rate  or 
charge  in  handling  or  dealing  in  or  with  any  necessaries; 
to  conspire,  combine,  agree,  or  arrange  with  any  other 
])erson  (a)  to  limit  tlic  facilities  for  transi)orting,  pro- 
ducing, harvesting,  iii.-iinit'acturiiig,  sii])plyiiig,  storing,  or 
dealing  in  any  necessaries;  (b)  to  restrict  the  supply  of 
any  necessaries;  (c)  to  restrict  distribution  of  any  neces- 
saries; (d)  to  prevent,  limit,  or  lessen  the  manufacture  or 
production  ol"  any  necessaries  in  order  to  ciiliance  the 
price  thereof;  or  (e)  to  exact  excessive  prices  for  any 
necessaries,  or  to  aid  or  abet  the  doing  of  any  act  made 

11— Sec.  ],  Act  May  16,  1918,  40 
Stat.  554. 


Permanent  War  Legislation  1273 

unlawful  by  this  section.  Any  person  violating  any  of 
the  provisions  of  this  section  upon  conviction  thereof 
shall  be  fined  not  exceeding  $5,000  or  be  imprisoned  for 
not  more  than  two  years,  or  both:  Provided,  That  this 
section  shall  not  apply  to  any  farmer,  gardener,  horti- 
culturist, vineyardist,  planter,  ranchman,  dairyman, 
stockman,  or  other  agriculturist,  with  respect  to  the  farm 
products  produced  or  raised  upon  land  owned,  leased,  or 
cultivated  by  him:  Provided,  further,  That  nothing  in 
this  Act  shall  be  construed  to  forbid  or  make  unlawful  col- 
lective bargaining  by  any  cooperative  association  or  other 
association  of  farmers,  dairymen,  gardeners,  or  other 
producers  of  farm  products  with  respect  to  the  farm 
products  produced  or  raised  by  its  members  upon  land 
owned,  leased,  or  cultivated  by  them." 

§  1773.  Former  punishments  for  specified  offenses  not 
repealed.  That  sections  8  and  9  of  the  Act  entitled  ''An 
Act  to  provide  further  for  the  national  security  and 
defense  by  encouraging  the  production,  conserving  the 
supply,  and  controlling  the  distribution  of  food  products 
and  fuel, ' '  approved  August  10, 1917,  be,  and  the  same  are 
hereby  repealed:  Provided,  That  any  offense  committed 
in  violation  of  said  sections  8  and  9,  prior  to  the  passage 
of  this  Act,  may  be  prosecuted  and  the  penalties  pre- 
scribed therein  enforced  in  the  same  manner  and  with  the 
same  effect  as  if  this  Act  had  not  been  passed.^^ 

§  1774.  Penalties  for  violation  of  War  Finance  Act, 
April  5,  1918,  enumeration.  Whoever  (1)  makes  any 
statement,  'knowing  it  to  be  false,  for  the  purpose  of  ob- 
taining for  himself  or  for  any  other  person,  firm,  corpora- 
tion, or  association  any  advance  under  this  title,  shall  be 
punished  by  a  fine  of  not  more  than  $10,000,  or  by  impris- 
onment for  not  more  than  five  years,  or  both. 

12— Sees.  2  and  3  of  Title  I,  Food 
Control  Act  Amendments,  approved 
Oct.  22,  1919,  41  Stat.  298. 


1274  Criminal  Law 

Whoever  wilfully  overvalues  any  security  by  which  any 
such  advance  is  secured,  shall  be  punished  by  a  fine  of  not 
more  than  $5,000,  or  by  imprisonment  for  not  more  than 
two  years,  or  both. 

Whoever  (1)  falsely  makes,  forges,  or  counterfeits  any 
bond,  coupon,  or  paper  in  imitation  of  or  purporting  to 
be  in  imitation  of  a  bond  or  coupon  issued  by  the  Corpora- 
tion; or  (2)  passes,  utters  or  publishes,  or  attempts  to 
pass,  utter,  or  publish  any  false,  forged,  or  counterfeited 
bond,  coupon,  or  paper  purporting  to  be  issued  by  the  Cor- 
poration, knowing  the  same  to  be  falsely  made,  forged,  or 
counterfeited;  or  (3)  falsely  alters  any  such  bond,  coupon, 
or  paper;  or  (4)  passes,  utters,  or  publishes  as  true  any 
falsely  altered  or  spurious  bond,  coupon,  or  paper  issued 
or  purporting  to  have  been  issued  by  the  Corporation, 
knowing  the  same  to  be  falsely  altered  or  spurious,  shall 
be  punished  by  a  fine  of  not  more  than  $10,000,  or  by 
imprisonment  for  not  more  than  five  years,  or  both. 

Whoever,  being  connected  in  any  capacity  with  the 
Corporation,  (1)  embezzles,  abstracts,  or  wilfully  misap- 
plies any  moneys,  funds,  or  credits  thereof,  or  (2)  with 
intent  to  defraud  the  Corporation  or  any  other  company, 
body  politic  or  corporate,  or  any  individual,  or  to  deceive 
any  officer  of  the  Corporation,  (a)  makes  any  false  entry 
in  any  book,  report,  or  statement  of  the  Corporation,  or 
(b)  without  authority  from  the  directors  draws  any  order 
or  assigns  any  note,  bond,  draft,  mortgage,  judgment,  or 
decree  thereof,  sliall  Ix'  punished  by  a  fine  of  not  more 
than  $10,000,  or  by  iiii])risoiimeiit  for  not  more  tlinii  five 
years,  or  botli. 

The  Secretary  of  tlie  Treasniy  is  lieroby  aiilliori/ed  to 
direct  and  use  the  Secret  Service  Division  of  the  Treas- 
ury Department  to  detect,  arrest,  and  deliver  into  custody 
of  the  United  States  marshal  having  jurisdiction  any 
j)erson  coiiimiHiiiu'  any  of  the  (.ffcnscs  pniiislinl)]('  nnder 
this  section. ^^ 

13— Act   Apr.  r.,   1!)18,  40  Stnt. 


CHAPTER  LXXXVII 

EEPEALING  PEOVISIONS 

Penal  Code  Act,  March  4,  1909 

§  1777.  Sections,  acts,  and  parts  of       §  1780.  Acts  of  limitation. 

acts  repealed.  §  1781.  Date  this  act  shall  l)c  effec- 

§  1778.  Accrued  rights,  etc.,  not  af-  tive. 

fected. 

§  1779.  Prosecutions      and      punish- 
ments. 

§  1777.  Sections,  Acts,  and  parts  of  Acts  repealed.  Sec. 
341.  The  following  sections  of  the  Revised  Statutes  and 
Acts  and  parts  of  Acts  are  hereby  repealed. 

Sections  four  hundred  and  twelve,  fifteen  hundred  and 
fifty-three,  sixteen  hundred  and  sixty-eight;  sections  sev- 
enteen hundred  and  eighty  to  seventeen  hundred  and 
eighty-three,  both  inclusive;  sections  seventeen  hundred 
and  eighty-five,  seventeen  hundred  and  eighty-seven,  sev- 
enteen hundred  and  eighty-eight,  seventeen  hundred  and 
eighty-nine,  twenty-three  hundred  and  seventy-three, 
twenty-four  hundred  and  twelve,  thirty-five  hundred  and 
eighty-three,  thirty-seven  hundred  and  eight,  thirty-seven 
hundred  and  thirty-nine,  thirty-seven  hundred  and  forty, 
thirty-seven  hundred  and  forty-tAVO,  thirty-eight  hundred 
and  thirty-two,  thirty-eight  hundred  and  fifty-one,  thirty- 
eight  hundred  and  sixty-nine,  thirty-eight  hundred  and 
eighty-seven;  sections  thirty-eight  hundred  and  ninety 
to  thirty-eight  hundred  and  ninety-four,  both  inclusive; 
section  thirty-eight  hundred  and  ninety-nine;  sections 
thirty-nine  hundred  and  twenty-two  to  thirty-nine  hun- 
dred and  twenty-five,  both  inclusive;  sections  thirty-nine 
hundred  and  forty-seven,  thirty-nine  hundred  and  fifty- 

1275 


1276  Criminal  Law 

four,  tliirty-nine  hundred  and  seventy-seven;  thirty-nine 
hundred  and  seventy-nine;  sections  thirty-nine  hundred 
and  eighty-one  to  thirty-nine  hundred  and  eighty-six, 
both  inclusive;  sections  thirty-nine  hundred  and  eighty- 
eight,  thirty-nine  hundred  and  ninety-two,  thirty-nine 
hundred  and  ninety-five,  thirty-nine  hundred  and  ninety- 
six,  four  thousand  and  thirteen,  four  thousand  and  six- 
teen, four  thousand  and  thirty,  four  thousand  and  fifty- 
three,  fifty-one  hundred  and  eighty-eight,  fifty-one  hun- 
dred and  eighty-nine;  sections  fifty-two  hundred  and 
eighty-one  to  fifty-two  hundred  and  ninety-one,  both  in- 
clusive; sections  fifty-three  hundred  and  twenty-three  to 
fifty-three  hundred  and  ninety-five,  both  inclusive;  sec- 
tions fifty-three  hundred  and  ninety-eight  to  fifty-four 
hundred  and  ten,  both  inclusive;  sections  fifty-four  hun- 
dred and  thirteen  to  fifty-four  hundred  and  eighty-four, 
both  inclusive;  sections  fifty-four  hundred  and  eighty- 
seven  to  fifty-five  hundred  and  ten,  both  inclusive;  sec- 
tions fifty-five  hundred  and  sixteen,  fifty-five  hundred 
and  eighteen,  fifty-five  hundred  and  nineteen;  sections 
fifty-five  hundred  and  twenty-four  to  fifty-five  hundred 
and  thirty-five,  both  inclusive;  sections  fifty-five  hun- 
dred and  fifty-one  to  fifty-five  hundred  and  sixty-seven, 
both  inclusive,  of  the  Revised  Statutes. 

That  part  of  section  thirty-eight  hundred  and  twenty- 
nine  of  the  Revised  Statutes  which  reads  as  follows: 
"And  every  person  who,  without  authority  from  the 
Postmaster-General,  sets  up  or  professes  to  keep  any 
office  or  place  of  business  bearing  the  sign,  name,  or  title 
of  post-office,  shall  for  every  such  orfense  be  liable  to  a 
penalty  of  not  more  than  five  hundred  dollars." 

Tliat  part  of  section  thirty-eight  hundred  and  sixty- 
seven  of  llic  Revised  Statutes  which  reads  as  foUows: 
"And  any  y)ers()n  not  connected  with  the  letter-carrier 
branch  of  the  postal  service  who  shall  wear  the  uniform 
which  may  be  prescribed  shall,  for  every  such  offense,  be 
punishable  by  a  fine  of  not  more  lliaii  one  hundred  dol- 


Repealing  Provisions  1277 

lars,  or  by  imprisonment  for  not  more  than  six  months, 
or  both." 

That  part  of  section  four  thousand  and  forty-six  of 
the  Revised  Statutes  which  reads  as  follows:  ''Every 
postmaster,  assistant,  clerk,  or  other  person  employed  in 
or  connected  with  the  business  or  operations  of  any 
money-order  office  who  converts  to  his  own  use,  in  any 
way  whatever,  or  loans,  or  deposits  in  any  bank,  except 
as  authorized  by  this  title,  or  exchanges  for  other  funds, 
any  portion  of  the  public  money-order  funds,  shall  be 
deemed  guilty  of  embezzlement;  and  any  such  person, 
as  well  as  every  other  person  advising  or  participating 
therein,  shall,  for  eveiy  such  offense,  be  imprisoned  for 
not  less  than  six  months  nor  more  than  ten  years,  and 
be  fined  in  a  sum  equal  to  the  amount  embezzled;  and 
any  failure  to  pay  over  or  produce  any  money-order 
funds  intrusted  to  such  person  shall  be  taken  to  be 
prima  facie  evidence  of  embezzlement;  and  upon  the 
trial  of  any  indictment  against  any  person  for  such  em- 
bezzlement, it  shall  be  prima  facie  evidence  of  a  balance 
against  him  to  produce  a  transcript  from  the  money- 
order  account  books  of  the  Sixth  Auditor.  But  nothing 
herein  contained  shall  be  construed  to  prohibit  any  post- 
master depositing,  under  tlie  direction  of  the  Postmaster- 
General,  in  a  national  bank  designated  by  the  Secretary 
of  the  Treasury  for  that  purpose,  to  his  own  credit  as 
postmaster,  any  money  order  or  other  funds  in  his  charge, 
nor  prevent  his  negotiating  drafts  or  other  evidences 
of  debt  through  such  bank,  or  through  United  States 
disbursing  officers,  or  otherwise,  when  instructed  or  re- 
quired to  do  so  by  the  Postmaster-General,  for  the  pur- 
pose of  remitting  surplus  money-order  funds  from  one 
post-office  to  another,  to  be  used  in  payment  of  money 
orders. ' ' 

'*An  Act  to  protect  lines  of  telegraph  constructed  or 
used  by  the  TTnited  States  from  malicious  injury  and  ob- 


1278  Chimin AL  Law 

struction,"  approved  June  twenty-third,  eighteen  hun- 
dred and  seventy-four. 

"An  Act  to  protect  persons  of  foreign  birth  against 
forcible  constraint  or  involuntary  servitude,"  approved 
June  twenty-third,  eighteen  hundred  and  seventy-four; 

That  part  of  ''An  Act  making  appropriations  for  the 
service  of  the  Postoffice  Department  for  the  fiscal  year 
ending  June  thirtieth,  eighteen  hundred  and  seventy-five, 
and  for  other  purposes,"  approved  June  twenty-third, 
eighteen  hundred  and  seventy-four,  which  reads  as  fol- 
lows: ''That  any  postmaster  who  shall  affix  his  signa- 
ture to  the  approval  of  any  bond  of  a  bidder  or  to  the 
certificate  of  sufficiency  of  sureties  in  any  contract  before 
the  said  bond  or  contract  is  signed  by  the  bidder  or  con- 
tractor and  his  sureties,  or  shall  knowingly,  or  without 
the  exercise  of  due  diligence,  approve  any  bond  of  a 
bidder  with  insufficient  sureties,  or  shall  knowingly 
make  any  false  or  fraudulent  certificate,  shall  be  forth- 
with dismissed  from  office  and  be  thereafter  disqualified 
from  holding  the  office  of  postmaster,  and  shall  also  be 
deemed  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  be  punished  by  a  fine  not  exceeding  five  thou- 
sand dollars,  or  by  imprisonment  not  exceeding  one  year, 
or  both;" 

Sections  one,  two,  and  three  of  "An  Act  to  protect  or- 
namental and  other  trees  on  Government  reservations 
and  on  lands  purchased  by  the  United  States,  and  for 
other  purposes,"  approved  March  third,  eighteen  hun- 
dred and  seventy-five; 

"An  Act  to  punish  certain  larcenies  and  the  receivers 
of  stolen  goods,"  approved  March  Ihird,  cightoon  hun- 
dred nnd  seventy-five; 

"An  Act  to  amend  sedioii  fifty  foui-  Imndivd  nnd  fifty- 
seven  of  tlie  Revised  Statutes  of  the  United  States,  relat- 
ing to  counterfeiting,"  approved  Jniiunry  sixteenth, 
eighteen  hundred  and  seventy-seven; 

That  part  of  section  five  of  "An  Act  establishing  post- 


Repealing  Provisions  1-79 

roads,  and  for  other  purposes,"  approved  March  third, 
eighteen  hundred  and  seventy-seven,  which  reads  as  fol- 
lows:   "And  if  any  person  shall  make  use  of  any  such 
official  envelope  to  avoid  the  payment  of  postage  on  his 
private  letter,  package,  or  other  matter  in  the  mail,  the 
person  so  offending  shall  be  deemed  guilty  of  a  mis- 
demeanor and  subject  to  a  fine  of  three  hundred  dollars, 
to  be  prosecuted  in  any  court  of  competent  jurisdiction;" 
That  part  of  section  one  of  ''An  Act  making  appropria- 
tions for  the  service  of  the  Postoffice  Department  for  the 
year  ending  June  thirtieth,  eighteen  hundred  and  sev- 
enty-nine, and  for  other  purposes, ' '  approved  June  seven- 
teenth, eighteen  hundred  and  seventy-eight,  which  reads 
as  follows:    "And  any  postmaster  who  shall  make  a  false 
return  to  the  auditor,  for  the  purpose  of  fraudulently 
increasing  his  compensation  under  the  provisions  of  this 
or  any  other  Act,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  fined  in  a 
sum  not  less  than  fifty  nor  more  than  five  hundred  dol- 
lars, or  imprisoned  for  a  term  not  exceeding  one  year,  or 
punished  by  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  court;  and  no  postmaster  of  any  class, 
or  other  person  connected  with  the  postal  service,  in- 
trusted with   the   sale  or  custody   of  postage   stamps, 
stamped  envelopes,  or  postal  cards,  shall  use  or  dispose 
of  them  in  the  payment  of  debts  or  in  the  purchase  of 
merchandise  or  other  salable  articles,  or  pledge  or  hypoth- 
ecate the  same,  or  sell  or  dispose  of  them  except  for 
cash;  or  sell  or  dispose  of  postage  stamps  or  postal  cards 
for  any  larger  or  less  sum  than  the  values  indicated  on 
their  faces;  or  sell  or  dispose  of  stamped  envelopes  for 
a  larger  or  less  sum  than  is  charged  therefor  by  the  Post- 
office  Department  for  like  quantities;  or  sell  or  dispose 
of  postage  stamps,  stamped  envelopes,  or  postal  cards 
otherwise  than  as  provided  by  law  and  the  regulations 
of  the  Postoffice   Department;  and   any  postmaster   or 
other  person  connected  with  the  postal  service  who  shall 


1280  Criminal  Law 

violate  any  of  these  provisions  shall  be  deemed  guilty  of 
a  misdemeanor,  and,  on  conviction  thereof,  shall  be  fined 
in  any  sum  not  less  than  fifty  nor  more  than  five  hundred 
dollars,  or  imprisoned  for  a  term  not  exceeding-  one 
year;" 

''An  Act  to  amend  section  fifty-four  hmidred  and 
ninety-seven  of  the  Revised  Statutes,  relating  to  embez- 
zlement by  officers  of  the  United  States,"  approved  Feb- 
ruaiy  third,  eighteen  hundred  and  seventy-nine; 

That  part  of  section  one  of  "An  Act  making  appropria- 
tions for  the  service  of  the  Postoffice  Department  for  the 
fiscal  year  ending  June  thirtieth,  eighteen  hundred  and 
eighty,  and  for  other  purposes,"  approved  March  third, 
eighteen  hundred  and  seventy-nine,  which  reads  as  fol- 
lows: "That  nothing  contained  in  section  thirty-nine 
hundred  and  eighty-two  of  the  Revised  Statutes  shall  be 
construed  as  prohibiting  any  person  from  receiving  and 
delivering  to  the  nearest  postoffice  or  postal  car  mail 
matter  properly  stamped."  Also  sections  thirteen, 
twenty- three,  twenty-seven,  and  twenty-eight  of  said  Act; 

"An  Act  to  amend  section  fifty-four  hundred  and  forty 
of  the  Revised  Statutes,"  approved  May  seventeenth, 
eighteen  hundred  and  seventy-nine; 

Sections  one,  three,  and  four  of  "An  Act  to  amend 
section  fifty-three  liundred  and  fifty-two  of  the  Revised 
Statutes  of  the  United  States,  in  reference  to  bigamy, 
and  i'oi-  other  i)iii-i)oses,"  approved  March  twenty-second, 
eigliteeu  hundred  and  eighty-two; 

Sections  eleven,  twelve,  thirteen,  fourteen,  and  fifteen 
of  "An  Act  to  regulate  and  improve  the  civil  service  of 
the  United  States,"  approved  .);iim;iry  sixteenth,  eighteen 
hundred  and  eighty-three; 

"An  Act  making  it  a  felony  for  a  person  to  falsely  and 
Irandiilently  assume  or  pretend  to  be  an  officer  or  em- 
ployee acting  nndcr  authority  of  Hk'  United  States  or 
;iny  departinciil  or  oriicci-  llioreol",  and  prescribing  a  pen- 


Repealinc;  Provisions  1281 

alty  therefor, ' '  approved  April  eighteenth,  eighteen  hun- 
dred and  eighty-four; 

''An  Act  to  prevent  and  punish  the  counterfeiting 
within  the  United  States  on  notes,  bonds,  or  other  securi- 
ties of  foreign  governments,"  approved  May  sixteenth, 
eighteen  hundred  and  eighty-four; 

Section  nine  of  ''An  Act  making  appropriations  for 
the  current  and  contingent  expenses  of  the  Indian  De- 
partment and  for  fulfilling  treaty  stipulations  with 
various  Indian  tribes  for  the  year  ending  June  thirtieth, 
eighteen  hundred  and  eighty-six,  and  for  other  purposes, ' ' 
approved  March  third,  eighteen  hundred  and  eighty- 
five; 

Section  two  of  "An  Act  to  amend  the  Act  entitled 
'An  Act  to  modify  the  money-order  system,  and  for  other 
purposes,'  approved  March  third,  eighteen  hundred  and 
eigh ty- three, "  approved  January  third,  eighteen  hun- 
dred and  eighty-seven; 

Sections  three,  four,  five,  nine,  and  ten  of  "An  Act  to 
amend  an  Act  entitled  'An  Act  to  amend  section  fifty- 
three  hundred  and  fifty-two  of  the  Revised  Statutes  of 
the  United  States,  in  reference  to  bigamy,  and  for  other 
purposes,'  approved  March  twenty-second,  eighteen  hun- 
dred and  eighty- two,"  approved  March  third,  eighteen 
hundred  and  eighty-seven; 

Section  two  of  "An  Act  relating  to  permissible  marks, 
printing  or  writing,  upon  second,  third,  and  fourth  class 
matter,  and  to  amend  the  twenty-second  and  twenty-third 
sections  of  an  Act  entitled  'An  Act  making  appropria- 
tions for  the  service  of  the  Postoffice  Department  for 
the  fiscal  year  ending  June  thirtieth,  eighteen  hundred 
and  eighty,  and  for  other  purposes,'  "  approved  January 
twentieth,  eighteen  hundred  and  eighty-eight; 

"An  Act  to  amend  section  fifty-three  hundred  and 
eighty-eight  of  the  Revised  Statutes  of  the  United  States 
in    relation   to    timber   depredations,"    approved    June 
fourth,  eighteen  hundred  and  eighty-eight; 
c.  L.— 81 


1282  Criminax,  Law 

■  "An  Act  relating-  to  postal  crimes,  and  amendatory  of 
the  statutes  therein  mentioned,"  approved  June  eight- 
eenth, eighteen  hundred  and  eighty-eight; 

"An  Act  amendatory  of  'An  Act  relating  to  postal 
crimes  and  amendatory  of  the  statutes  therein  men- 
tioned, '  approved  June  eighteenth,  eighteen  hundred  and 
eighty-eight,  and  for  other  purposes,"  approved  Septem- 
ber twenty-sixth,  eighteen  hundred  and  eighty-eight; 

' '  An  Act  to  punish,  as  a  felony,  the  carnal  and  unlaw- 
ful knowdng  of  any  female  under  the  age  of  sixteen 
years,"  approved  February  ninth,  eighteen  hundred  and 
eighty-nine ; 

Sections  one  and  two  of  "An  Act  to  punish  dealers 
and  pretended  dealers  in  counterfeit  money  and  other 
fraudulent  devices  for  using  the  United  States  mails," 
approved  March  second,  eighteen  hundred  and  eighty- 
nine; 

Section  one  of  "An  Act  to  amend  certain  sections  of 
the  Revised  Statutes  relating  to  lotteries  and  for  other 
purposes,"  approved  September  nineteenth,  eighteen 
hundred  and  ninety; 

"An  Act  further  to  prevent  counterfeiting  or  manu- 
facture of  dies,  tools,  or  other  implements  used  in  coun- 
terfeiting, and  providing  penalties  therefor,  and  provid- 
ing for  the  issue  of  search  warrants  in  certain  cases," 
approved  February  tenth,  eighteen  hundred  and  ninety- 
one; 

"An  Act  to  amend  sections  fifty-three  hundred  and 
sixty-five  and  (ifly  llnve  hundred  and  sixty-six  of  the 
Revised  Statutes,  relating  to  barratry  on  tlie  higli  seas," 
approved  August  sixth,  eighteen  inindicd  and  ninety- 
four;. 

Sections  one  and  two  of  "An  Act  for  the  suppression 
of  lottery  traffic  tlirougli  national  and  interstate  com- 
merce and  tiie  postal  service,  subject  to  the  .iurisdiction 
and  laws  of  the  United  Slates,"  appioved'March  second, 
eightef'ii  liundi-ed  and  niiicly  five; 


Repealinc  I'ltovisioNS  ]28:! 

*'An  Act  to  prohibit  prize  fighting  and  pugilism  and 
fights  between  men  and  animals,  and  to  provide  penalties 
therefor  in  the  Territories  and  the  District  of  Columbia, ' ' 
approved  February  seventh,  eighteen  hundred  and  ninety- 
six; 

That  part  of  "An  Act  making  appropriations  for  the 
Department  of  Agriculture  for  the  fiscal  year  ending  June 
thirtieth,  eighteen  hundred  and  ninety-five,"  approved 
August  eighth,  eighteen  hundred  and  ninety-four,  and 
that  part  of  ''An  Act  making  appropriations  for  the 
Department  of  Agriculture  for  the  fiscal  year  ending 
June  thirtieth,  eighteen  hundred  and  ninety-six,"  ap- 
proved March  second,  eighteen  hundred  and  ninety-five, 
and  that  part  of  ''An  Act  making  appropriations  for  the 
Department  of  Agriculture  for  the  fiscal  year  ending 
June  thirtieth,  eighteen' hundred  and  ninety-seven,"  ap- 
proved April  twenty-fifth,  eighteen  hundred  and  ninety- 
six,  which  reads  as  follows:  "Any  person  who  shall 
knowingly  issue  or  publish  any  weather  forecasts  or 
warnings  of  weather  conditions  falsely  representing  such 
forecasts  or  warnings  to  have  been  issued  or  published 
by  the  Weather  Bureau,  United  States  Signal  Service,  or 
other  branch  of  the  government  service,  shall  be  deemed 
guilty  of  misdemeanor,  and,  on  conviction  thereof,  for 
each  offense  be  fined  in  a  sum  not  exceeding  five  hundred 
dollars,  or  imprisoned  not  to  exceed  ninety  days,  or  be 
both  fined  and  imprisoned,  in  the  discretion  of  the 
court ; ' ' 

That  part  of  "An  Act  making  appropriations  for  cur- 
rent and  contingent  expenses  of  the  Indian  Department 
and  fulfilling  treaty  stipulations  with  various  Indian 
tribes  for  the  fiscal  year  ending  June  thirtieth,  eighteen 
hundred  and  ninety-seven,  and  for  other  purposes,"  ap- 
proved June  tenth,  eighteen  hundred  and  ninety-six, 
which  reads  as  follows:  "Provided  further.  That  here- 
after it  shall  be  unlawful  for  any  person  to  destroy,  de- 
face,  change,  or  remove  to  another  place   any  section 


1284  Criminal  Law 

comer,  quarter-section  corner,  or  meander  post  of  any 
Government  line  of  survey,  or  to  cut  down  any  witness 
tree  or  any  tree  blazed  to  mark  the  line  of  a  Government 
survey,  or  to  deface,  change,  or  remove  any  monument 
or  bench  mark  of  any  Government  survey.  That  any 
person  w^ho  shall  offend  against  any  of  the  provisions  of 
this  paragraph  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  upon  conviction  thereof  in  any  court,  shall  be  fined 
not  exceeding  two  hundred  and  fifty  dollars  or  be  im- 
prisoned not  more  than  one  hundred  days.  All  the  fines 
accruing  under  this  paragraph  shall  be  paid  into  the 
Treasury,  and  the  informer  in  each  case  of  conviction 
shall  be  paid  the  sum  of  twenty-five  dollars;" 

''An  Act  to  reduce  the  cases  in  which  the  penalty  of 
death  may  be  inflicted,"  approved  January  fifteenth, 
eighteen  hundred  and  ninety-seven; 

"An  Act  to  prevent  the  carrying  of  obscene  literature 
and  articles  designed  for  indecent  and  immoral  use  from 
one  State  or  Territory  into  another  State  or  Territory," 
approved  February  eighth,  eighteen  hundred  and  ninety- 
seven; 

''An  Act  to  prevent  forest  fires  on  the  public  domain," 
approved  February  twenty-fourth,  eighteen  hundred  and 
ninety-seven; 

"An  Act  to  prevent  the  purchasing  of  or  speculating 
in  claims  against  the  Federal  Government  by  United 
States  officers,"  approved  Februaiy  twenty-fifth,  eighteen 
hundred  and  ninety-seven; 

"An  Act  to  amend  section  fifty-four  hundred  and  fifty- 
nine  of  the  Revised  Statutes,  prescribing  the  punishment 
for  mutilating  United  States  coins,  and  for  uttering  or 
passing  or  attempting  to  utter  or  pass  such  mutilated 
coins,"  approved  March  third,  eighteen  hundred  and 
ninety-seven; 

Section  eighteen  of  "An  Act  to  amend  the  laws  relat- 
ing to  navigation,"  approved  March  third,  eighteen  hun- 
dred and  ninety-seven; 


Repealing  Puovisiuks  I2bj 

That  part  of  section  one  of  ''An  Act  making  appropria- 
tions for  the  service  of  the  Postofhce  Department  for  the 
fiscal  year  ending  June  thirteentli,  eighteen  iiundred  and 
ninety-nine,"  approved  June  thirteenth,  eighteen  hun- 
dred and  ninety-eight,  whicli  reads  as  follows:  "Pro- 
vided, That  any  person  or  persons  who  shall  place  or 
cause  to  be  placed  any  matter  in  the  mails  during  the 
regular  weighing  period,  for  the  purpose  of  increasing 
the  weight  of  the  mails  with  intent  to  cause  an  increase 
in  the  compensation  of  the  railroad  mail  carrier  over 
whose  route  such  mail  matter  may  pass,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  on  conviction  thereof 
be  fined  not  less  than  five  hundred  dollars  nor  more  than 
twenty  thousand  dollars,  and  shall  be  imprisoned  at  hard 
labor  not  less  than  thirty  days  nor  more  than  five  years ; ' ' 

Section  seventeen  of  "An  Act  to  provide  revenue  for 
the  Government,  and  to  encourage  the  industries  of  the 
United  States,"  approved  July  twenty-fourth,  eighteen 
hundred  and  ninety-seven; 

Section  three  of  an  Act  entitled  "An  Act  making  ap- 
propriations for  the  service  of  the  Postoffice  Department 
for  the  fiscal  year  ending  June  thirtieth,  nineteen  hun- 
dred and  four,  and  for  other  purposes, ' '  approved  March 
third,  nineteen  hundred  and  three; 

"An  Act  to  protect  the  harbor  defenses  and  fortifica- 
tions constructed  or  used  by  the  United  States  from  mali- 
cious injury,  and  for  other  purposes,"  approved  July 
seventh,  eighteen  hundred  and  ninety-eight; 

"An  Act  to  amend  an  Act  entitled  'An  Act  to  prevent 
forest  fires  on  the  public  domain,'  approved  February 
twenty-fourth,  eighteen  hundred  and  ninety-seven,"  ap- 
proved May  fifth,  nineteen  hundred; 

Sections  two,  three,  and  four  of  "An  Act  to  enlarge 
the  powers  of  the  Department  of  Agriculture,  proliibit 
the  transportation  by  interstate  commerce  of  game  killed 
in  violation  of  local  laws,  and  for  other  purposes,"  ap- 
proved May  twenty-fifth,  nineteen  hundred; 


1286  Criminal  Law 

"An  Act  to  prevent  the  sale  of  firearms,  opium,  and 
intoxicating  liquors,  in  certain  islands  of  the  Pacific," 
approved  February  fourteenth,  nineteen  hundred  and 
two; 

"An  Act  for  the  suppression  of  train  robbery  in  the 
Territories  of  the  United  States  and  elsewhere  and  for 
other  purposes,"  approved  July  first,  nineteen  hundred 
and  two; 

"An  Act  conferring  jurisdiction  upon  the  circuit  and 
district  courts  for  the  district  of  South  Dakota  in  certain 
cases,  and  for  other  purposes,"  approved  February  sec- 
ond, nineteen  hundred  and  three; 

"An  Act  to  amend  section  three  of  the  'Act  further 
to  prevent  counterfeiting  or  manufacturing  of  dies,  tools, 
or  other  implements  used  in  manufacturing, '  and  so  forth, 
approved  February  tenth,  eighteen  hundred  and  ninety- 
one,"  approved  March  third,  nineteen  hundred  and  three; 

"An  Act  for  the  protection  of  the  Bull  Run  Forest  Re- 
serve and  the  sources  of  the  water  supply  of  the  city  of 
Portland,  State  of  Oregon,"  approved  April  twenty- 
eighth,  nineteen  hundred  and  four; 

"An  Act  to  amend  the  Act  of  February  eighth,  eighteen 
hundred  and  ninety-seven,  entitled  'An  Act  to  prevent 
the  carrying  of  obscene  literature  and  articles  designed 
for  indecent  and  immoral  use  from  one  State  or  Terri- 
toi-y  into  another  State  or  Territory,'  so  as  to  prevent 
the  importation  and  exportation  of  llie  same,"  approved 
Fel)ruary  eigiilli,  nineteen  hundred  and  five; 

"An  Act  to  amend  section  thirteen  of  chai)ter  tiiree 
liundred  and  ninety-four  of  the  Supplement  to  the  Re- 
vised Statutes  of  the  United  States,"  approved  March 
second,  nineteen  hundred  and  five; 

Section  five  of  "An  Act  to  amend  sections  forty-four 
Imiidred  and  seventeen,  forty-four  Inindred  and  fifty- 
three,  forty-four  IiuimIiimI  and  eighty  ci.uhl,  and  forty- 
fonr  linn<li'(Ml  and  nlncls-  nine  of  the  licx'iscd  Statute's  re- 


Repbalinu  Provisions  1287 

lating  to  misconduct  by  officers  or  owners  of  vessels," 
approved  March  third,  nineteen  hundred  and  five; 
.~  "An  Act  to  punish  tlie  cutting,  chipping,  or  boxing 
of  trees  on  the  public  lands,"  approved  June  fourth,  nine- 
teen hundred  and  six. 

Sections  sixteen,  seventeen,  and  nineteen  of  "An  Act 
to  establish  a  bureau  of  innnigration  and  naturalization, 
and  to  provide  for  a  uniform  rule  for  the  naturalization 
of  aliens  throughout  the  United  States,"  approved  June 
twenty-ninth,  nineteen  hundred  and  six. 

An  Act  entitled  * '  An  Act  to  prohibit  corporations  from 
making  money  contributions  in  connection  w^itli  political 
elections, ' '  approved  January  twenty-sixth,  nineteen  hun- 
dred and  seven. 

An  Act  entitled  "An  Act  to  amend  sections  one,  two, 
and  three  of  an  Act  entitled  'An  Act  to  prohibit  shang- 
haiing in  the  United  States,'  approved  June  twenty- 
eighth,  nineteen  hundred  and  six,"  approved  March  sec- 
ond, nineteen  hundred  and  seven. 

An  Act  entitled  "An  Act  to  promote  the  safe  transpor- 
tation in  interstate  commerce  of  explosives  and  other 
dangerous  articles,  and  to  provide  penalties  for  its  viola- 
tion," approved  May  thirtieth,  nineteen  hundred  and 
eight. 

An  Act  entitled  "An  Act  to  amend  section  fifty-four 
hundred  and  thirty-eight  of  the  Revised  Statutes,"  ap- 
proved May  thirtieth,  nineteen  hundred  and  eight. 

Also  all  other  sections  and  parts  of  sections  of  the 
Revised  Statutes  and  Acts  and  parts  of  Acts  of  Congress, 
in  so  far  as  they  are  embraced  within  and  superseded  by 
this  Act,  are  hereby  repealed;  the  remaining  portions 
thereof  to  be  and  remain  in  force  with  the  same  effect 
and  to  the  same  extent  as  if  this  Act  had  not  been  passed. 

§  1778.  Accrued  rights,  etc.,  not  affected.  Sec.  342.  The 
repeal  of  existing  laws  or  modifications  thereof  embraced 
in  this  title  shall  not  affect  any  act  done,  or  any  right 


1288  Criminal  Law 

accruing  or  accrued,  or  any  suit  or  proceeding  had  or 
commenced  in  any  civil  cause  prior  to  said  repeal  or  modi- 
fications, but  all  liabilities  under  said  laws  shall  continue 
and  may  be  enforced  in  the  same  manner  as  if  said  repeal 
or  modifications  had  not  been  made. 

§  1779.  Prosecutions  and  punishments.  Sec.  343.  All 
offenses  committed,  and  all  penalties,  forfeitures,  or  lia- 
bilities incurred  prior  to  the  taking  effect  hereof,  under 
any  law  embraced  in,  or  changed,  modified,  or  repealed 
by  this  title,  may  be  prosecuted  and  punished  in  the  same 
manner  and  with  the  same  effect  as  if  this  Act  had  not 
been  passed. 

§  1780.  Acts  of  Limitation.  Sec.  344.  All  acts  of  limita- 
tion, whether  applicable  to  civil  causes  and  proceedings, 
or  for  the  recovery  of  penalties  or  forfeitures,  embraced 
in,  modified,  changed,  or  repealed  by  this  title,  shall  not 
be  affected  thereby;  and  all  suits  or  proceedings  for 
causes  arising  or  acts  done  or  committed  prior  to  the 
taking  effect  hereof  may  be  commenced  and  prosecuted 
within  the  same  time  and  with  the  same  effect  as  if  said 
repeal  had  not  been  made. 

§  1781.  Date  this  Act  shall  be  effective.  Sec.  345.  This 
Act  shall  take  effect  and  be  in  force  on  and  after  the  first 
day  of  January,  nineteen  hundred  and  ten. 

Approved,  March  4,  1909. 


APPENDIX 


THE  BILL  OF  EIGHTS— (1689  A.  D.) 

AN  ACT  for  declaring  the  riglits  and  liberties  of  the 
subject,  and  settling  the  succession  of  the  crown. 

Whereas  the  Lords  Spiritual  and  Temporal,  and  Com- 
mons, assembled  at  Westminster,  lawfully,  fully,  and 
freely  representing  all  the  estates  of  the  people  of  this 
realm,  did,  upon  the  thirteenth  day  of  February,  in  the 
year  of  our  Lord  one  thousand  six  hundred  eighty-eight, 
present  unto  their  Majesties,  then  called  and  known  by 
the  names  and  styles  of  William  and  Mary,  Prince  and 
Princess  of  Orange,  being  present  in  their  proper  persons, 
a  certain  declaration  in  wanting,  made  by  the  said  Lords 
and  Commons,  in  the  words  following:  viz. — 

Whereas  the  late  King,  James  II,  by  the  assistance  of 
divers  evil  counsellors,  judges  and  ministers  employed 
by  him,  did  endeavor  to  subvert  and  extirpate  the 
Protestant  religion,  and  the  laws  and  liberties  of  this 
kingdom: — 

1.  By  assuming  and  exercising  a  power  of  dispensing 
with  and  suspending  of  laws,  and  the  execution  of  laws, 
without  consent  of  Parliament. 

2.  By  committing  and  prosecuting  divers  worthy  prel- 
ates, for  humbly  petitioning  to  be  excused  from  concur- 
ring to  the  said  assumed  power. 

3.  By  issuing  and  causing  to  be  executed  a  commission 
under  the  Great  Seal,  for  erecting  a  court,  called  the 
Court  of  Commissioners  for  Ecclesiastical  Causes. 

4.  By  levying  money  for  and  to  the  use  of  the  Crown, 

1289 


1290  Ceimixal  Law 

by  pretense  of  prerogative,  for  other  time,  and  in  other 
manner  than  the  same  was  granted  by  Parliament. 

5.  By  raising  and  keeping  a  standing  army  within  this 
kingdom  in  time  of  peace,  without  consent  of  Parliament, 
and  quartering  soldiers  contrary  to  law. 

6.  By  causing  several  good  subjects,  being  Protestants, 
to  be  disarmed  at  the  same  time  when  Papists  were  both 
araied  and  em.ployed,  contrary  to  law. 

7.  By  violating  the  freedom  of  election  of  members  to 
serve  in  Parliament. 

8.  By  prosecutions  in  the  Court  of  King's  Bench,  for 
matters  and  causes  cognizable  only  in  Parliament;  and 
by  divers  other  arbitrary  and  illegal  courses. 

9.  And  whereas  of  late  years,  partial,  corrupt,  and  un- 
qualified persons  have  been  returned  and  served  on  juries 
in  trials,  and  particularly  divers  jurors  in  trials  for  high 
treason,  which  were  not  freeholders. 

10.  And  excessive  bail  hath  been  required  of  persons 
committed  in  criminal  cases,  to  elude  the  benefit  of  the 
laws  made  for  the  liberty  of  the  subjects. 

11.  And  excessive  fines  have  been  imposed;  and  illegal 
and  cruel  punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines  and 
forfeitures,  before  any  conviction  or  judgment  against 
the  persons  upon  whom  the  same  were  to  be  levied. 

All  which  are  utterly  and  directly  contrary  to  the 
known  laws  and  statutes,  and  the  freedom  of  this  realm. 

And  whereas  the  said  late  King  James  IT,  having  ab- 
dicated the  government,  and  the  throne  being  thereby 
vacant,  his  Highness  the  Prince  of  Orange  (who  it  hatli 
y)leascd  Almighty  Ood  to  make  the  gloricms  instrument 
of  delivering  tliis  kingdom  from  Popery  and  arbitrary 
powfr)  did  (by  Ihc  .'idvice  of  the  Lords  Spiritual  and 
Temporal  and  divers  principal  persons  of  the  Connnons) 
cause  letters  to  be  written  to  tlie  Lords  Spiritual  and 
Temporal,  being  Protestants,  and   other  letters  to  the 


Appendix  1-01 

several  counties,  cities,  universities,  boroughs  and  cinque- 
ports,  for  the  choosing  of  such  persons  to  represent  them, 
as  were  of  right  to  be  sent  to  Parliament,  to  meet  and 
sit  at  AVestminster  upon  the  two-and-twentioth  day  of 
January,  in  this  year  one  thousand  six  hundred  eighty 
and  eight,  jn  order  to  such  an  establishment,  as  that  their 
religion,  laws  and  liberties  might  not  be  in  danger  of 
being  subverted;  upon  which  letters,  elections  have  been 
accordingly  made. 

And  thereupon  the  said  Lords  Spiritual  and  Temporal, 
and  Commons,  pursuant  to  their  respective  letters  and 
elections,  being  now  assembled  in  a  full  and  free  repre 
sentation  of  this  nation,  taking  into  their  most  serious 
consideration  the  best  means  for  attaining  the  ends  afore- 
said, do  in  the  first  place  (as  their  ancestors  in  like  cause 
have  usually  done)  for  the  vindicating  and  asserting 
their  ancient  rights  and  liberties,  declare: 

1.  That  the  pretended  power  of  suspending  of  laws,  or 
the  execution  of  laws,  by  regal  authority,  as  it  hath  been 
assumed,  and  exercised  of  late,  is  illegal. 

2.  That  the  pretended  power  of  dispensing  with  laws, 
or  the  execution  of  laws  by  regal  authority,  as  it  hath 
been  assumed,  and  exercised  of  late,  is  illegal. 

3.  That  the  commission  for  erecting  the  late  Court  of 
Commissioners  for  Ecclesiastical  Causes,  and  all  other 
commissions  and  courts  of  like  nature,  are  illegal  and 
pernicious. 

4.  That  levying  money  for  or  to  the  use  of  the  Crown, 
by  pretence  and  prerogative,  without  grant  of  Parlia- 
ment, for  longer  time  or  in  other  manner  than  the  same 
is  or  shall  be  granted,  is  illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition  the 
King,  and  all  commitments  and  prosecutions  for  such 
petitioning  are  illegal. 

6.  That  the  raising  or  keeping  a  standing  army  within 


1292  Criminal  Law 

the  Kingdom  in  time  of  peace,  unless  it  be  with  the  con- 
sent of  Parliament,  is  against  law. 

7.  That  the  subjects  which  are  Protestants,  may  have 
arms  for  their  defense  suitable  to  their  conditions,  and 
as  allowed  by  law. 

8.  That  elections  of  members  of  Parliament  ought  to 
be  free. 

9.  That  the  freedom  of  speech,  and  debates  or  pro- 
ceedings in  Parliament,  ought  not  to  be  impeached  or 
questioned  in  any  court  or  place  out  of  Parliament. 

10.  That  excessive  bail  ought  not  to  be  required,  nor 
excessive  fines  imposed;  nor  cruel  and  unusual  punish- 
ments inflicted. 

11.  That  jurors  ought  to  be  duly  impanelled  and  re- 
turned, and  jurors  which  pass  upon  men  in  trials  for 
high  treason  ought  to  be  freeholders. 

12.  That  all  grants  and  promises  of  fines  and  for- 
feitures of  particular  persons  before  conviction,  are  illegal 
and  void. 

13.  And  that  for  redress  of  all  grievances,  and  for  the 
amending,  strengthening,  and  presei^ing  of  the  laws, 
Parliaments  ought  to  be  held  frequently. 

And  they  do  claim,  demand,  and  insist  upon  all  and 
singular  the  premises,  as  their  undoubted  rights  and  lib- 
erties, and  that  no  declaration,  judgments,  doings  or  pro- 
ceedings, to  the  prejudice  of  the  people  in  any  of  the  said 
premises,  ought  in  any  wise  to  be  drawn  hereafter  into 
consequence  or  example. 

To  which  demand  of  their  rights,  they  are  particularly 
encouraged  by  the  declaration  of  his  Highness  the  Prince 
of  Orange,  as  being  the  only  means  for  obtaining  a  full 
redress  and  remedy  therein. 

Having  therefore  an  entire  confidence  that  his  said 
Higlmess  the  Prince  of  Orange  will  perfect  the  deliver- 
ance so  far  advanced  by  liim,  and  will  still  preserve  them 
from  the  violation  of  their  rights,  which  they  have  been 


Appendix  1293 

here  asserted,  and  from  all  other  attempts  upon  their 
religion,  rights,  and  liberties. 

n.  The  said  Lords  Spiritual  and  Temporal,  and  Com- 
mons, assembled  at  Westminster,  to  resolve  that  William 
and  Maiy,  Prince  and  Princess  of  Orange,  be,  and  be 
declared.  King  and  Queen  of  England,  France  and  Ire- 
land, and  the  dominions  thereunto  belonging,  to  hold  the 
Crown  and  royal  dignity  of  the  said  kingdoms  and 
dominions  to  them  the  said  Prince  and  Princess  during 
their  lives,  and  the  life  of  the  survivor  of  them;  and  that 
the  sole  and  full  exercise  of  the  regal  power  be  only  in, 
and  executed  by,  the  said  Prince  of  Orange,  in  the  names 
of  the  said  Prince  and  Princess,  during  their  joint  lives; 
and  after  their  deceases,  the  said  Crown  and  royal  dignity 
of  the  said  kingdoms  and  dominions  to  be  to  the  heirs 
of  the  body  of  the  said  Princess;  and  for  default  of  such 
issue  to  the  Princess  Anne  of  Denmark,  and  the  heirs 
of  her  body;  and  for  the  default  of  such  issue  to  the 
heirs  of  the  body  of  the  said  Prince  of  Orange.  And 
the  Lords  Spiritual  and  Temporal,  and  Commons,  to  pray 
the  said  Prince  and  Princess  to  accept  the  same  accord- 
ingly. 

III.  And  that  the  oaths  hereafter  mentioned,  be  taken 
by  all  persons  of  whom  the  oaths  of  allegiance  and  su- 
premacy might  be  required  by  law,  instead  of  them ;  and 
that  the  said  oaths  of  allegiance  and  supremacy  be  abro- 
gated. 

I,  A.  B.,  do  sincerely  promise  and  swear,  That  I  will 
be  faithful  and  bear  true  allegiance  to  their  Majesties 
King  William  and  Queen  Mary. 

So  help  me  God. 

I,  A.  B.,  do  swear,  That  I  do  from  my  heart  abhor, 
detest,  and  adjure  as  impious  and  heretical,  that  damnable 
doctrine  and  position,  that  Princes  excommunicated  or 
deprived  by  the  Pope,  or  any  authority  of  the  See  of 
Rome,  may  be  deposed  or  murdered  by  their  subjects,  or 


129i  Chimin AL  Law 

any  other  whatsoever.  And  I  do  declare,  that  no  foreign 
prince,  person,  prelate,  state,  or  potentate  hath,  or  ought 
to  have,  any  jurisdiction,  power,  supeiiority,  pre-emi- 
nence, or  authority  ecclesiastical  or  spiritual,  within  this 
realm. 

So  help  me  God. 

IV.  Upon  which  their  said  Majesties  did  accept  the 
crown  and  royal  dignity  of  the  kingdoms  of  England, 
France,  and  Ireland,  and  the  dominions  thereunto  belong- 
ing, according  to  the  resolution  and  desire  of  the  said 
Lords  and  Commons  contained  in  the  said  declaration. 

V.  And  thereupon  their  Majesties  were  pleased,  that 
the  said  Lords  Spiritual  and  Temporal,  and  Commons, 
being  the  two  Houses  of  Parliament,  should  continue  to 
sit,  and  with  their  Majesties'  royal  concurrence  make 
effectual  provision  for  the  settlement  of  the  religion,  laws 
and  liberties  of  this  kingdom,  so  that  the  same  for  the 
future  might  not  be  in  danger  again  of  being  subverted; 
to  which  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  did  agree  and  jproceed  to  act  accordingly. 

VI.  Now  in  pursuance  of  the  premises,  the  said  Lords 
Spiritual  and  Temporal,  and  Commons,  in  Parliament  as- 
sembled, for  the  ratifying,  confirming,  and  establishing 
the  said  declaration,  and  the  articles,  clauses,  matters, 
and  things  therein  contained,  by  the  force  of  a  law  made 
in  due  form  by  authority  of  Parliament,  do  pray  that  it 
may  be  declared  and  enacted.  That  all  and  singular  the 
rights  and  liberties  asserted  and  claimed  in  the  said 
declaration,  are  the  true,  ancient,  and  indubitable  rights 
and  liberties  of  the  peo])le  of  tliis  kingdom,  and  so  shall 
be  esteemed,  allowed,  adjudged,  deemed,  and  taken  to 
be,  and  that  all  and  every  the  particulars  aforesaid  shall 
be  firmly  and  strictly  lioldon  and  observed,  as  they  are 
expressed  in  the  said  declaration;  and  all  oflicers,  and 
ministers  wliatsoever  shall  serve  their  Majesties  and  their 
successors  accni-ding  lo  llic  same  in  ;ill  limes. lo  come. 


Appendix  1295 

Vil.  And  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  seriously  considering  how  it  hath  pleased  Al- 
mighty God,  in  his  marvelous  providence,  and  merciful 
goodness  to  this  nation,  to  provide  and  preserve  their 
said  Majesties'  royal  persons  most  happily  to  reign  over 
us  upon  the  throne  of  their  ancestors,  for  which  they 
render  unto  liim  from  the  bottom  of  their  hearts  their 
humblest  thanks  and  praises,  do  truly,  firmly,  assuredly, 
and  in  the  sincerity  of  their  hearts,  think,  and  do  hereby 
recognize,  acknowledge  and  declare,  that  King  James  II, 
having  abdicated  the  government,  and  their  Majesties 
having  accepted  the  Crown  and  royal  dignity  as  afore- 
said, their  said  Majesties  did  become,  were,  are,  and  of 
sovereign  right  ought  to  be,  by  the  laws  of  this  realm, 
our  sovereign  liege  lord  and  lady.  King  and  Queen  of 
England,  France,  and  Ireland,  and  the  dominions  there- 
unto belonging  in  and  to  whose  princely  persons  the  royal 
State,  Crown,  and  dignity  of  the  said  realms,  w^ith  all 
honors,  styles,  titles,  regalities,  prerogatives,  powers, 
jurisdictions  and  authorities  to  the  same  belonging  and 
appertaining,  are  most  fully,  rightfully,  and  entirely  in- 
vested and  incorporated,  and  annexed. 

VIII.  And  for  preventing  all  questions  and  divisions 
in  this  realm,  by  reason  of  any  pretended  titles  to  the 
Crown,  and  for  preserving  a  certainty  in  the  succession 
thereof,  in  and  upon  which  the  unity,  peace,  and  tran- 
quillity, and  safety  of  this  nation  doth,  under  God,  wholly 
consist  and  depend,  the  said  Lords  Spiritual  and  Tem- 
poral, and  Commons,  do  beseech  their  Majesties  that  it 
may  be  enacted,  established  and  declared,  that  the  Crown 
and  legal  government  of  the  said  kingdoms  and  domin- 
ions, with  all  and  singular  the  premises  thereunto  be- 
■  longing  and  appertaining,  shall  be  and  continued  to  their 
said  Majesties,  and  the  survivor  of  the  other,  during  their 
lives,  and  the  life  of  the  survivor  of  them.  And  that  the 
entire,  perfect,  and  full  exercise  of  the  regal  power  and 


1296  Ceiminal  Law 

government  be  only  in,  and  executed  by,  his  Majesty,  in 
the  names  of  both  their  Majesties  during  their  joint  lives ; 
and  after  their  deceases  the  said  crown  and  premises 
shall  be  and  remain  to  the  heirs  of  the  body  of  her 
Majesty;  and  for  default  of  such  issue,  to  her  Royal 
Highness  the  Princess  Anne  of  Denmark,  and  the  heirs 
of  her  body;  and  for  default  of  such  issue,  to  the  heirs 
of  the  body  of  his  said  Majesty.  And  thereunto  the  said 
Lords  Spiritual  and  Temporal,  and  Commons,  do,  in  the 
name  of  all  the  people  aforesaid,  most  humbly  and  faith- 
fully submit  themselves,  their  heirs  and  posterities  for 
ever;  and  do  faithfully  promise,  That  they  will  stand  to, 
maintain,  and  defend  their  said  Majesties,  and  also  the 
limitation  and  succession  of  the  crown  herein  specitied 
and  contained,  to  the  utmost  of  their  powers,  wath  their 
lives,  and  estate,  against  all  persons  whatsoever  that 
shall  attempt  anything  to  the  contrary. 

IX.  And  Whereas  it  hath  been  found  by  experience, 
that  it  is  inconsistent  with  the  safety  and  welfare  of  this 
Protestant  kingdom,  to  be  governed  by  a  Popish  Prince, 
or  by  any  King  or  Queen  marrying  a  Papist,  the  said 
Lords  Spiritual  and  Temporal,  and  Commons,  do  further 
pray  that  it  may  be  enacted,  That  all  and  every  persons 
that  is,  are,  or  shall  be  reconciled  to,  or  shall  hold  com- 
munion with,  the  See  or  Church  of  Rome,  or  shall  profess 
the  Popish  religion,  or  shall  marry  a  Papist,  shall  be  ex- 
cluded, and  be  forever  incapable  to  inherit,  possess,  or 
enjoy  the  Crown  and  Government  of  this  realm,  and  Ire- 
land, and  the  dominions  thereunto  belonging,  or  any  part 
of  the  same,  or  to  have,  use,  or  exercise  any  regal  power, 
authority,  or  jurisdiction  within  the  same;  and  in  all  and 
every  such  case  or  cases  the  people  of  these  realms  shall 
be  and  are  hereby  absolved  of  their  allegiance;  and  the 
said  Crown  and  Government  shall  from  time  to  time  de-- 
scend  to,  and  be  enjoyed  by,  such  person  or  persons, 
being  Protestants,  as  sliould  have  inherited  and  enjoyed 


Appendix  1297 

the  same,  in  case  the  said  person  or  persons  so  reconciled, 
holding  communion,  or  professing,  or  marrying  as  afore- 
said, were  naturally  dead. 

THE  TWELVE  TABLES 
TABLE  I 

THE  SUMMONS  BEFORE  THE  MAGISTRATE 

1.  If  the  plaintiff  summon  a  man  to  appear  before  the 
magistrate  and  he  refuse  to  go,  the  plaintiff  shall  first 
call  witnesses  and  arrest  him. 

2.  If  the  defendant  attempt  evasion  or  flight,  the  plain- 
tiff shall  take  him  by  force. 

3.  If  the  defendant  be  prevented  by  illness  or  old  age, 
let  him  who  summons  him  before  the  magistrate  furnish 
a  beast  of  burden,  but  he  need  not  send  a  covered  carriage 
for  him  unless  he  choose. 

4.  For  a  wealthy  defendant  only  a  wealthy  man  may 
go  bail;  any  one  who  chooses  may  go  bail  for  a  poor 
citizen  of  the  lowest  class. 

5.  In  case  the  contestants  come  to  an  agreement,  the 
magistrate  shall  announce  the  fact. 

6.  In  case  they  come  to  no  agreement,  they  shall  before 
noon  enter  the  case  in  the  comitium  or  forum. 

TABLE  II 

JUDICIAL  PEOCEDUEE 

2.  A  serious  illness  or  a  legal  appointment  with  an  alien 

should  one  of  these  occur  to  the  judge,  arbiter,  or 

either  party  to  the  suit,  the  appointed  trial  must  be  post- 
poned. 

3.  If  the  witnesses  of  either  party  fail  to  appear,  that 
party  shall  go  and  sewe  a  verbal  notice  at  his  door  on 
three  days. 

C.  L.— 82 


1298  CKiMiiSrAL  Law 

TABLE  III 

"EXECUTION   FOLLOWING  CONFESSION  OR  JUDGMENT 

1.  A  debtor,  either  by  confession  or  judgment,  shall 
have  thirty  days  grace. 

2.  At  the  expiration  of  this  period  the  plaintiff  shall 
serve  a  formal  summons  upon  the  defendant,  and  bring 
him  before  the  magistrate. 

3.  If  the  debt  be  not  paid  or  if  no  one  becomes  surety, 
the  plaintiff  shall  take  him  away,  and  bind  him  with 
shackles  and  fetters  of  not  less  than  fifteen  pounds 
weight,  and  heavier  at  his  discretion. 

4.  If  the  debtor  wish,  he  may  live  at  his  own  expense; 
if  not,  he  in  whose  custody  he  may  be  shall  furnish  him 
a  pound  of  meal  a  day,  more  at  his  discretion. 

6.  On  the  third  market  day  the  creditors,  if  there  are 
several,  shall  divide  the  property.  If  one  take  more  or 
less,  no  guilt  shall  attach  to  him. 

TABLE  IV 

PATERNAL  RTGII'I'S 

3.  If  a  father  shall  thrice  sell  his  son,  the  son  shall  be 
free  from  the  paternal  authority. 

TABLE  V 

INITERTTANCE  AND  TUTELAGE 

3.  Wiiat  has  Ik'cii  appointed  in  regard  to  the  property 
or  tutelage  shall  be  binding  in  law. 

4.  If  a  m;iu  die  intestate,  having  no  nnlnrnl  heirs,  his 
])r()pcrty  shall  pass  to  the  nearest  agnate. 

5.  If  lliere  be  no  agnate,  the  gentiles  shall  succeed. 

7 If  one  be   hopelessly  insane,  his   agnates 

and  gentiles  shall  lia\-e  .•lulhority  ovci-  him  ;iii(l  his  ])rop- 
erty in  case  there  he  none  to  take  charge. 

8 from  that  estat<' into  that  estate. 


Appendix  1299 

TABLE  VI 

OWNERSHIP  AND  POSSESSION 

1.  Whenever  a  party  shall  negotiate  a  nexum  or  trans- 
fer by  mancipatio,  according  to  the  formal  statement  so 
let  the  law  be. 

5.  Whoever  in  presence  of  the  magistrates  sliall  join 
issue  by  mannmn  consertio 

7.  A  beam  built  into  a  house  or  vine-trellis  shall  not 
be  removed. 

9.  When  the  vines  have  been  pruned,  until  the  grapes 
are  removed 

TABLE  VII 

LAW  CONCERNING  REAL  PROPERTY 

5.  If  parties  get  into  dispute  about  boundaries 

7.  They  shall  pave  the  way.  If  they  do  not  pave  the 
way  with  stones  a  man  may  drive  where  he  pleases. 

8.  If  water  from  rain  gutters  cause  damage 

TABLE  VIII 

ON  TORTS 

1.  Whoever  shall  chant  a  magic  spell 

2.  If  a  man  maim  another,  and  does  not  compromise 
with  him,  there  shall  be  retaliation  in  kind. 

3.  If  with  the  fist  or  club  a  man  break  a  bone  of  a 
freeman,  the  penalty  shall  be  three  hundred  asses;  if  of 
a  slave,  one  hundred  and  fifty  asses. 

4.  If  he  does  any  injury  to  another,  twenty-five  asses; 
if  he  sing  a  satirical  song  let  him  be  beaten. 

5 If  he  shall  have  inflicted  a  loss he  shall 

make  it  good. 

8.  Whoever  shall  blight  the  crops  of  another  by  incan- 
tation  nor  shall  thou  win  over  to  thyself  another's 

grain 


1300  Criminal  Law 

12.  If  a  thief  be  caught  stealing  by  night  and  he  be 
slain,  the  homicide  shall  be  lawful. 

13.  If  in  the  daytime  the  thief  defend  himself  with  a 
weapon,  one  may  kill  him. 

15 with  a  leather  girdle  about  his  naked  body, 

and  a  platter  in  his  hand 

16.  If  a  man  contend  at  law  about  a  theft  not  detected 
in  the  act 

21.  If  a  patron  cheat  his  client,  he  shall  become  in- 
famous. 

22.  He  who  has  been  summoned  as  a  witness  or  acts 
as  libripens,  and  shall  refuse  to  give  his  testimony,  shall 
be  accounted  infamous,  and  shall  be  incapable  of  acting 
subsequently  as  witness. 

24.  If  a  weapon  slip  from  a  man's  hand  without  his 
intention  of  hurling  it 

TABLE  IX 
(No  fragments  of  this  table  are  extant.) 

TABLE  X 

1.  They  shall  not  inter  or  burn  a  dead  man  within  the 
city. 

2 more  than  this  a  man  shall  not  do ;  a 

man  shall  not  smooth  the  wood  for  the  funeral  pyre  with 
an  axe. 

4.  Women  shall  not  lacerate  their  faces,  nor  indulge  in 
immoderate  wailing  for  the  dead. 

5.  They  sliall  not  collect  the  bones  of  a  dead  man  for  a 
second  interment. 

7.  Whoever  wins  a  crown,  either  in  person  or  by  his 
skives  or  animals,  or  lias  received  it  for  valor 

8 he   sliall  not  add  gold ;  but   gold 

used  in  .if'ii'ing  the  tooth This  may  be  burned 

orbnriod  with  the  dead  witiioiit  iiicui'fing  nny  ])onalty. 


Appendix  1301 

TABLE  XI 

(No  fragments  of  this  table  are  extant.) 

TABLE  XII 

SUPPLEMENTARY  LAWS 

2.  If  a  slave  has  committed  a  theft,  or  has  done  dam- 
age  

3.  If  either  party  shall  have  won  a  suit  concerning 
property  by  foul  means,  at  the  discretion  of  the  oppo- 
nent   the  magistrate  shall  fix  the  damage  at  twice 

the  profits  arising  from  the  interim  possession. 


THE  LAWS  OF  MOSES 

(DEUTERONOMY.     The  fifth  Book  of  the  Bible,  part  of  Chapter  V,  iu- 
eluding  the  ten  commandments.) 

Verse  11 :  Thou  shalt  not  take  the  name  of  the  Lord  thy 
God  in  vain:  for  the  Lord  will  not  hold  him  guiltless  that 
taketh  his  name  in  vain. 

Verse  12:  Keep  the  sabbath  day  to  sanctify  it,  as  the 
Lord  thy  God  hath  commanded  thee. 

Verse  13:  Six  days  thou  shalt  labour,  and  do  all  thy 
work; 

Verse  14:  But  the  seventh  day  is  the  sabbath  of  the 
Lord  thy  God :  in  it  thou  shalt  not  do  any  work,  thou,  nor 
thy  son,  nor  thy  daughter,  nor  thy  manservant,  nor  thy 
maidservant,  nor  thine  cattle,  nor  thy  stranger  that  is 
within  thy  gates ;  that  thy,  thy  manservant  and  thy  maid- 
servant may  rest  as  well  as  thou. 

Verse  15:  And  remember  that  thou  wast  a  servant  in 
the  land  of  Egypt,  and  that  the  Lord  thy  God  brought 
thee  out  thence  through  a  mighty  hand  and  by  a  stretched 
out  arm:  therefore  the  Lord  thy  God  commanded  thee  to 
keep  the  sabbath  day. 


1302  Ceimixal  Law 

Verse  16:  Honour  thy  father  and  thy  mother,  as  the 
Lord  thy  God  hath  commanded  thee ;  that  thy  days  may 
be  prolonged,  and  that  it  may  go  well  with  thee,  in  the 
land  which  the  Lord  thy  God  giveth  thee. 

Verse  17 :  Thou  shalt  not  kill. 

Verse  18:  Neither  shalt  thou  commit  adultery. 

Verse  19:  Neither  shalt  thou  steal. 

Verse  20:  Neither  shalt  thou  bear  false  witness  against 
thy  neighbour. 

Verse  21:  Neither  shalt  thou  desire  thy  neighbour's 
wife,  neither  shalt  thou  covet  thy  neighbour's  house,  his 
field,  or  his  manservant,  or  his  maidservant,  his  ox  or  his 
ass,  or  anything  that  is  thy  neighbour's. 

Verse  22:  These  words  the  Lord  spake  unto  all  your 
assembly  in  the  mount  out  of  the  midst  of  the  fire,  of  the 
cloud,  and  of  the  thick  darkness,  wdth  a  great  voice:  and 
he  added  no  more.  And  he  wrote  them  in  two  tables  of 
stone,  and  delivered  them  unto  me. 

CHAPTER  XII 

Verse  1 :  These  are  the  statutes  and  judgments,  which 
ye  shall  observe  to  do  in  the  land,  which  the  Lord  God 
of  thy  fathers  giveth  thee  to  possess  it,  all  the  days  that 
ye  live  upon  the  eartli. 

Verse  2:  Ye  shall  utU'ily  destroy  all  the  places,  wherein 
the  nations  which  ye  shall  possess  served  their  gods, 
upon  the  high  mountains,  and  upon  the  hills,  and  under 
every  green  tree. 

Verse  8:  And  ye  shall  overthrow  Iheir  altai's,  and  break 
their  pillais,  and  hniii  Ihrir  groves  with  lire;  and  ye 
shall  hew  down  the  graven  images  of  theii-  gods,  and  de- 
stroy the  names  of  them  out  of  that  place. 

CHAPTER  XI  IT 

Verse  1:  11'  there  ai-isc  nniong  yon  a  i)rophet,  or  a 
(Ireamci-  of  (iienins,  jind  giveth  thee  a  sign  or  a  wonder. 


AlM'KNDIX  IMO.I 

Verse  2:  And  the  sign  or  the  wonder  eonie  to  pass, 
whereof  he  speak  unto  thee,  saying,  Let  us  go  after  other 
gods,  which  thou  hast  not  known,  and  let  us  serve  them; 

Verse  3 :  Thou  shalt  not  hearken  unt^  the  words  of  that 
prophet,  or  that  dreamer  of  dreams:  for  the  Lord  your 
God  proveth  you,  to  know  whether  ye  h)ve  tlio  Tjord  your 
God  with  all  your  heart  and  with  all  your  soul. 

Verse  4:  Ye  shall  walk  after  the  fjord  youi-  God,  and 
fear  him,  and  keep  his  commandments,  and  obey  his  voice, 
and  ye  shall  serve  him,  and  cleave  unto  him. 

Verse  5:  And  that  i)rophet,  or  that  dreamer  of  dreams, 
shall  be  put  to  death;  because  he  hath  spoken  to  turn 
you  away  from  the  Lord  your  God,  which  brought  you 
out  of  the  land  of  Egypt,  and  redeemed  you  out  of  the 
house  of  bondage,  to  thrust  thee  out  of  the  way  which  the 
Lord  thy  God  commanded  thee  to  walk  in.  So  shalt  thou 
put  the  evil  away  from  the  midst  of  thee. 

Verse  6:  If  thy  brother,  the  son  of  thy  mother,  or  thy 
son,  or  thy  daughter,  or  the  wife  of  thy  bosom,  or  thy 
friend,  which  is  as  thine  own  soul,  entice  thee  secretly, 
saying.  Let  us  go  and  serve  other  gods,  which  thou  hast 
not  known,  thou,  nor  thy  fathers; 

Verse  7:  Namely,  of  the  gods  of  the  people  which  are 
round  about  you,  nigh  unto  thee,  or  far  off  from  thee, 
from  the  one  end  of  the  earth  even  unto  the  other  end  of 
the  earth; 

Verse  8:  Thou  shalt  not  consent  unto  him  nor  hearken 
unto  him;  neither  shall  thine  eye  pity  him,  neither  shalt 
thou  spare,  neither  shalt  thou  conceal  him: 

Verse  9:  But  thou  shalt  surely  kill  him;  thine  hand 
shall  be  first  upoii  liim  to  put  him  to  death,  and  after- 
wards the  hand  of  all  the  people. 

Verse  10:  And  thou  shalt  stone  him  with  stones,  that 
he  die ;  because  he  hath  sought  to  thrust  thee  away  from 
the  Lord  thy  God,  which  brought  thee  out  of  the  land  of 
Egypt,  from  the  house  of  bondage. 


1304  Cbimixal  Law 

Verse  11:  And  all  Israel  shall  hear,  and  fear,  and  shall 
do  no  more  any  such  wickedness  as  this  is  among  you. 

Verse  12:  If  thou  shalt  hear  say  in  one  of  thy  cities, 
which  the  Lord  thy  God  hath  given  thee  to  dwell  there, 
saying, 

Verse  13 :  Certain  men,  the  children  of  Belial,  are  gone 
out  from  among  you  and  have  withdrawn  the  inhabitants 
of  their  city,  saying,  Let  us  go  and  serve  other  gods,  which 
ye  have  not  known; 

Verse  14:  Then  shalt  thou  inquire,  and  make  search, 
and  ask  diligently;  and,  behold,  if  it  be  truth,  and  the 
thing  certain,  that  such  abomination  is  wrought  among 
you; 

Verse  15:  Thou  shalt  surely  smite  the  inhabitants  of 
that  city  with  the  edge  of  thy  sword,  destroying  it  utterly 
and  all  that  is  therein,  and  the  cattle  thereof,  with  the 
edge  of  thy  sword. 

Verse  16:  And  thou  shalt  gather  all  the  spoil  of  it  into 
the  midst  of  the  street  thereof,  and  shalt  burn  with  fire 
the  city,  and  all  the  spoil  thereof  every  whit,  for  the 
Lord  thy  God;  and  it  shall  be  an  heap  forever;  it  shall  not 
be  built  again. 

Verse  17:  And  there  shall  cleave  nought  of  the  cursed 
thing  to  thine  hand:  that  the  Lord  may  turn  from  the 
fierceness  of  his  anger,  and  show  thee  mercy,  and  have 
compassion  upon  thee,  and  multiply  thee,  as  he  hath  sworn 
unto  thy  fathers; 

CHAPTER  Xrv 

Verse  1:  Ye  are  the  children  of  the  Lord  your  God;  ye 
shall  not  cut  yourselves,  nor  make  any  baldness  between 
your  eyes  for  tlie  dead. 

Verse  2:  For  thou  art  an  holy  people  unto  tlic  Lord  tliy 
,  God,  and  the  Lord  hath  clioscn  thee  to  be  a  peculiar 
people  unto  himself,  nbovo  all  ilio  nations  that  are  uynm 
the  earth. 


Appendix  1305 

Verse  3 :  Tliou  shalt  not  eat  any  abominable  thing. 

Verse  4:  These  are  the  beasts  which  ye  shall  eat:  the 
ox,  the  sheep,  and  the  goat. 

Verse  5:  The  hart,  and  the  roebuck,  and  the  fallow  deer, 
and  the  wild  goat,  and  the  pygarg,  and  the  wild  ox,  and 
the  chamois. 

Verse  6:  And  every  beast  that  parteth  the  hoof,  and 
cleaveth  the  cleft  into  two  claws,  and  cheweth  the  cud 
among  the  beasts,  that  ye  shall  eat. 

Verse  7:  Nevertheless  these  ye  shall  not  eat  of  them 
that  chew  the  cud,  of  thorn  that  divide  the  cloven  hoof;  as 
the  camel,  and  the  hare,  and  the  coney,  for  they  chew  the 
cud,  but  divide  not  the  hoof;  therefore  they  are  unclean 
unto  you. 

Verse  8:  And  the  swine,  because  it  divideth  the  hoof, 
yet  cheweth  not  the  cud,  it  is  unclean  unto  you:  ye  shall 
not  eat  of  their  flesh,  nor  touch  their  dead  carcass. 

Verse  9:  These  ye  shall  eat  of  all  that  are  in  the  waters: 
all  that  have  fins  and  scales  shall  ye  eat. 

Verse  10:  And  whatsoever  hath  not  fins  and  scales  ye 
may  not  eat;  it  is  unclean  unto  you. 

Verse  11:  And  of  all  clean  birds  ye  shall  eat. 

Verse  12:  But  these  are  they  of  which  ye  shall  not  oat: 
the  eagle,  and  the  ossifrage,  and  the  ospray. 

Verse  13:  And  the  glede,  and  the  kite,  and  the  vulture 
after  his  kind. 

Verse  14:  And  every  raven  after  his  kind. 

Verse  15:  And  the  owl,  and  the  night  hawk,  and  the 
cuckoo,  and  the  hawk  after  his  kind. 

Verse  16:  The  little  owl,  and  the  great  owl,  and  the 
swan. 

Verse  17 :  And  the  pelican,  and  the  gier  eagle,  and  the 
cormorant. 

Verse  18:  And  the  stork,  and  the  heron  after  her  kind, 
and  the  lapwing,  and  the  bat. 

Verse  19:  And  every  creeping  thing  that  flieth  is  un- 
clean unto  you :  they  shall  not  be  eaten. 


13.Q6.  CRiMmm.'  Law 

Verse  20:  But  of  all  clean  fowlsye  may  eat. 
r  Verse  21:  Ye  shall  not  eat  of  any  thing  that  dieth  of 
itself:  thou  shalt  give  unto  the  stranger  that  is  in  thy 
gates,  that  he  may  eat  it ;  or  thou  maj^est  sell  it  unto  an 
alien :  for  thou  art  an  holy  people  unto  the  Lord  thy  God. 
Thou  shalt  not  seethe  a  kid  in  his  mother 's  milk. 

Verse  22 :  Thou  shalt  truly  tithe  all  the  increase  of  thy 
seed,  that  the  field  bringeth  forth  year  by  year. 

Verse  23:  And  thou  shalt  eat  before  the  Lord  thy  God, 
in  the  place  which  he  shall  choose  to  place  his  name  there, 
the  tithe  of  thy  corn,  of  thy  wine,  and  of  thine  oil,  and  the 
firstlings  of  thy  herds  and  of  thy  flocks;  that  thou  mayest 
learn  to  fear  the  Lord  thy  God  always. 

Verse  24:  And  if  the  way  be  too  long  for  thee,  so  that 
thou  are  not  able  to  carry  it ;  or  if  the  place  be  too  far  from 
thee,  which  the  Lord  thy  God  shall  choose  to  set  his  name 
there,  when  the  Lord  thy  God  hath  blessed  thee: 

Verse  25:  Then  shalt  thou  turn  it  into  money,  and  bind 
up  the  money  in  thine  liand,  and  shalt  go  unto  the  place 
which  the  Lord  thy  God  shall  choose : 

Verse  26:  And  thou  shalt  bestow  that  money  for  what- 
soever thy  soul  lusteth  after,  for  oxen,  or  for  sheep,  or  for 
wine,  or  for  strong  drink,  or  for  whatsoever  thy  soul  de- 
sireth:  and  thou  shalt  eat  there  before  the  Lord  thy  God, 
and  thou  shalt  rejoice,  tlioii,  and  Ihinc  household. 

Verse  27:  And  the  Levite  that  is  within  thy  gates;  thou 
slialt  not  forsake  liim;  for  lie  hath  no  part  nor  inheritance 
witli  thee. 

Verse  28:  At  tiie  end  ol"  three  years  tliou  shall  l)ring 
forth  all  tiie  tithe  of  thine  increase  the  same  year,  and 
shalt  lay  it  up  within  thy  gates: 

Verse  20:  And  the  Levite  (because  he  Inilh  no  pni1  nor 
inheritance  with  thee),  :>nd  the  stranger,  niid  the  father- 
less, and  the  widow,  which  arc  within  thy  gates,  shall 
come,  and  shall  eat  and  ho  satisfied;  that  the  Lord  thy 
God  may  bless  tln-e  in  ;ill  the  work  of  tliiiie  Imnd  which 
thou  doest. 


Appendix  1H07 

CHAPTER  XV 

Verse  1:  At  the  end  of  every  seven  years  thou  shalt 
make  a  release. 

Verse  2 :  And  this  is  the  manner  of  the  release :  Every 
creditor  that  lendeth  aught  unto  his  neighbour  shall  re- 
lease it;  he  shall  not  exact  it  of  his  neighbour,  or  of  his 
brother;  because  it  is  called  the  Lord's  release. 

Verse  3:  Of  a  foreigner  thou  mayest  exact  it  again:  but 
that  which  is  thine  with  thy  brother  thine  hand  shall 
release ; 

Verse  4:  Save  when  there  shall  be  no  poor  among  you; 
for  the  Lord  shall  greatly  bless  thee  in  the  land  which 
the  Lord  thy  God  giveth  thee  for  an  inheritance  to  possess 
it: 

Verse  5:  Only  if  thou  carefully  harken  unto  the  voice 
of  the  Lord  thy  God,  to  observe  to  do  all  these  command- 
ments which  I  command  thee  this  day. 

Verse  6:  For  the  Lord  thy  God  blesseth  thee,  as  he 
promised  thee:  and  thou  shalt  lend  unto  many  nations, 
but  thou  shalt  not  borrow ;  and  thou  shalt  reign  over  many 
nations,  but  they  shall  not  reign  over  thee. 

Verse  7 :  If  there  be  among  you  a  poor  man  of  one  of 
thy  brethren  within  any  of  thy  gates  in  thy  land  which 
the  Lord  thy  God  giveth  thee,  thou  shalt  not  harden  thine 
heart,  nor  shut  thine  hand  from  thy  poor  brother: 

Verse  8 :  But  thou  shalt  open  thine  hand  wide  unto  him, 
and  shalt  surely  lend  him  sufficient  for  his  need,  in  that 
which  he  wanteth. 

Verse  9:  Beware  that  there  be  not  a  thought  in  thy 
wicked  heart,  saying,  the  seventh  year  of  release  is  at 
hand,  and  thine  eye  be  evil  against  thy  poor  brother,  and 
thou  givest  him  nought;  and  he  ciy  unto  the  Lord. 

Verse  10:  Thou  shalt  surely  give  him  and  thine  heart 
shall  not  be  grieved  when  thou  givest  unto  him:  because 
that  for  this  thing  the  Lord  thy  God  shall  bless  thee  in  all 
thy  works,  and  in  all  that  thou  puttest  thine  hand  unto. 


1308  Ceimixal  Law 

Verse  11:  For  the  poor  shall  never  cease  out  of  the 
land :  therefore  I  command  thee,  saying,  Thou  shalt  open 
thine  hand  wide  unto  thy  brother,  to  thy  poor,  and  to  thy 
needy,  in  thy  land. 

Verse  12:  And  if  thy  brother,  an  Hebrew  man,  or  an 
Hebrew  woman,  be  sold  unto  thee,  and  serve  thee  six 
years;  then  in  the  seventh  year  thou  shalt  let  him  go  free 
from  thee. 

Verse  13:  And  when  thou  sendest  him  out  free  from 
thee,  thou  shalt  not  let  him  go  away  empty: 

Verse  14:  Thou  shalt  furnish  him  liberally  out  of  thy 
flock,  and  out  of  thy  floor,  and  out  of  thy  winepress:  of 
that  wherewith  the  Lord  thy  God  hath  blessed  thee  thou 
shalt  give  unto  him. 

Verse  15:  And  thou  shalt  remember  that  thou  wast  a 
bondman  in  the  land  of  Egypt,  and  the  Lord  thy  God 
redeemed  thee:  therefore  I  command  thee  this  thing 
today. 

Verse  16:  And  it  shall  be,  if  he  say  unto  thee,  I  will 
not  go  away  from  thee :  because  he  loveth  thee  and  thine 
house,  because  he  is  well  w^ith  thee. 

Verse  17:  Then  thou  shalt  take  an  awl,  and  thrust  it 
through  his  ear  unto  the  door,  and  he  shall  be  thy  servant 
forever.  And  also  unto  thy  maid-servant,  thou  shalt  do 
likewise. 

Verse  18:  It  shall  not  seem  hard  unto  thee,  when  thou 
sendest  him  away  free  from  thee;  for  he  hath  been  worth 
a  double  hired  servant  to  thee,  in  serving  thee  six  years: 
and  the  Lord  thy  God  shall  bless  thee  in  all  that  thou 
doest. 

Verse  19:  All  the  firstling  males  that  come  of  thy  herd 
and  of  thy  flock  thou  shalt  sanctify  unto  the  Lord  thy  God: 
thou  shalt  do  no  work  with  the  firstlings  of  thy  bullock, 
nor  sliear  the  firstling  of  thy  slicep. 

Verse  20:  Thou  shalt  eat  it  before  the  Lord  thy  God 
year  by  year  in  tlie  place  which  the  Lord  shall  choose, 
thou  and  thy  household. 


Appendix  1309 

Verse  21:  And  if  there  be  any  blemish  therein,  as  if  it 
be  lame,  or  blind,  or  have  an  ill  blemish,  thou  shalt 
not  sacrifice  it  mito  the  Lord  thy  God. 

Verse  22:  Thou  shalt  eat  it  within  thy  gates:  the  un- 
clean and  the  clean  person  shall  eat  it  alike,  as  the  roe- 
buck, and  as  the  hart. 

Verse  23:  Only  thou  shalt  not  eat  the  blood  thereof; 
thou  shalt  pour  it  upon  the  ground  as  water. 

CHAPTER  XVII 

Verse  1:  Thou  shalt  not  sacrifice  unto  the  Lord  thy  God 
any  bullock,  or  sheep,  wherein  is  a  blemish  or  any  evil 
favoredness:  for  that  is  an  abomination  unto  the  Lord  thy 
God. 

Verse  2:  If  there  be  found  among  you,  within  any  of 
thy  gates  w^hich  the  Lord  thy  God  giveth  thee,  man  or 
woman,  that  hath  wrought  wickedness  in  the  sight  of  the 
Lord  thy  God,  in  transgressing  his  covenant. 

Verse  3:  And  hath  gone  and  sei'ved  other  gods,  and 
worshipped  them,  either  the  sun,  or  moon,  or  any  of  the 
host  of  heaven,  which  I  have  not  commanded; 

Verse  4:  And  it  be  told  thee,  and  thou  hast  heard  of  it, 
and  inquired  diligently,  and,  behold,  it  be  true,  and  the 
thing  certain,  that  such  abomination  is  wrought  in  Israel : 

Verse  5:  Then  shalt  thou  bring  forth  that  man  or  that 
woman,  which  have  committed  that  wricked  thing,  unto 
thy  gates,  even  that  man  or  that  woman,  and  shalt  stone 
them  with  stones,  till  they  die. 

Verse  6:  At  the  mouth  of  two  witnesses,  or  three  wit- 
nesses, shall  he  that  is  worthy  of  death  be  put  to  death; 
but  at  the  mouth  of  one  witness  he  shall  not  be  put  to 
death. 

Verse  7:  The  hands  of  the  witnesses  shall  be  first  upon 
him  to  put  him  to  death,  and  afterward  the  hands  of  all 
the  people.  So  thou  shalt  put  the  evil  away  from  among 
yon. 

Verse  8:  If  there  arise  a  matter  too  hard  for  thee  in 


1310  Criminal  Law 

judgment,  between  blood  and  blood,  between  plea  and 
plea,  and  between  stroke  and  stroke,  being  matters  of  con- 
troversy within  thy  gates:  then  slialt  thon  arise,  and  get 
thee  up  into  the  place  which  the  Lord  thy  God  shall 
choose : 

Verse  9:  And  thou  shalt  come  unto  the  priests  the  Le- 
vites,  and  unto  the  judge  that  shall  be  in  those  days,  and 
inquire;  and  they  shall  shew  thee  the  sentence  of  judg- 
ment : 

Verse  10 :  And  thou  shalt  do  according  to  the  sentence, 
which  they  of  that  place  show  thee;  and  thou  shalt  ob- 
serve to  do  according  to  all  that  they  inform  thee: 

Verse  11:  According  to  the  sentence  of  the  law  which 
they  shall  teach  thee,  and  according  to  the  judgment 
which  they  shall  tell  thee,  thou  shalt  do:  thou  shalt  not 
decline  from  the  sentence  which  they  shall  show  thee  to 
the  right  hand,  nor  to  the  left. 

Verse  12:  And  the  man  that  will  do  presumptuously, 
and  will  not  harken  unto  the  priest  that  standeth  to  min- 
ister there  before  the  Lord  thy  God,  or  unto  the  judge, 
even  that  man  shall  die:  and  thou  shalt  put  away  the 
evil  from  Israel. 

Verse  13:  And  all  the  people  shall  hear,  and  fear,  and 
do  no  more  presumptuously. 

Verse  14:  When  thou  art  come  unto  the  land  which  the 
Lord  thy  God  givetli  thee,  and  shalt  possess  it,  and 
shalt  dwell  therein,  and  slialt  say,  I  will  set  a  king  over 
me,  like  as  all  the  nations  that  are  about  mo: 

Verse  15:  Thou  shalt  in  any  wise  set  him  king  over 
thee,  whom  the  Tjoi'd  thy  God  shall  choose:  one  from 
;iimiim-  tliy  lirctlircii  sli;ilt  llion  set  i\ing  oxer  thee:  thou 
niaycsl  not  set  a  sli'angcr  oyrv  tlicc,  wliicli  is  not  thy 
brother. 

N'erse  Ki:  \*>\i\  lie  slinll  not  multiply  horses  to  himself, 
nor  cause  the  |»cn|ilc  to  rcliini  to  Egypt,  to  the  end  that 
]i(^  sliuiild   nnilliply  liorscs:   l'oi-;isnnicIi  as  the   Lord  hath 


Api'endix'  1.'!1  1 

said  unto  you,  Yo  sliall  lieiicel'ortli  ivtuni  no  luoi'e  iliat 
way. 

Verse  17:  Neither  sliall  lie  multiply  wives  to  himself, 
that  his  heart  turn  not  away:  iieither  shall  he  greatly  mul- 
tiply to  himself  silver  and  gold. 

Verse  18:  And  it  shall  be,  when  he  sitteth  upon  the 
throne  of  his  kingdom,  that  he  shall  write  him  a  copy  of 
this  law  in  a  book  out  of  that  which  is  before  the  ])riests 
the  Levites: 

Verse  19:  And  it  shall  be  with  him,  and  he  shall  head 
therein  all  the  days  of  his  life:  that  he  may  learn  to  fear 
the  Lord  his  God,  to  keep  all  the  words  of  this  law  and 
these  statutes,  to  do  them: 

Verse  20:  That  his  heart  be  not  lifted  up  above  his 
brethren,  and  that  he  turn  not  aside  from  the  connnand- 
ment,  to  the  right  hand,  or  to  the  left:  to  the  end  that 
he  may  prolong  his  days  in  his  kingdom,  he,  and  his  chil- 
dren, in  the  midst  of  Israel. 

CHAPTER  XIX 

Verse  1:  When  the  Lord  thy  God  hath  cut  off  the  na- 
tions, whose  land  the  Lord  thy  God  giveth  thee,  and  thou 
succeedest  them,  and  dwellest  in  their  cities,  and  in  their 
houses : 

Verse  2 :  Thou  shalt  separate  three  cities  for  thee  in  the 
midst  of  thy  land,  which  the  Lord  thy  God  giveth  tliee  to 
possess  it. 

Verse  3:  Thou  shalt  prepare  thee  a  way  and  divide  the 
coasts  of  thy  land  which  the  Lord  thy  God  giveth  thee  to 
inherit,  into  three  parts,  that  eveiy  slayer  may  flee 
thither. 

.  Verse  4V  And  this  is  the  case  of  the  slayer,  which  shall 
flee  thither,  that  he  may  live:  Who  sokilleth  his  neigh- 
bour igiiorantly,  whom  he  hated  riot  in  time  past ; 

Verse  5:  As  \V^iieira  man  goeth  into  the  wood  Avith  his 
neighbour  to  hew  wood,  and  his  hand  fetcheth  a  stroke 


1312  Ckimixal  Law 

• 
with  the  ax  to  cut  down  the  tree,  and  the  head  slippeth 
from  the  helve,  and  lighteth  upon  his  neighbour,  that  he 
die ;  he  shall  flee  unto  one  of  those  cities,  and  live : 

Verse  6:  Lest  the  avenger  of  blood  pursue  the  slayer, 
while  his  heart  is  hot,  and  overtake  him,  because  the  way 
is  long,  and  slay  him;  whereas  he  was  not  worthy  of  death, 
inasmuch  as  he  hated  him  not  in  time  past. 

Verse  7 :  Wherefore  I  command  thee,  saying,  Thou  shalt 
separate  three  cities  for  thee. 

Verse  8 :  And  if  the  Lord  thy  God  enlarge  thy  coast,  as 
he  hath  sworn  unto  thy  fathers,  and  give  thee  all  the  land 
which  he  promised  to  give  unto  thy  fathers; 

Verse  9 :  If  thou  shalt  keep  all  these  commandments  to 
do  them,  which  I  command  thee  this  day,  to  love  the  Lord 
thy  God,  and  to  walk  ever  in  his  ways;  then  shalt  thou 
add  three  cities  more  for  thee,  beside  those  three : 

Verse  10:  That  innocent  blood  be  not  shed  in  thy  land, 
which  the  Lord  thy  God  giveth  thee  for  an  inheritance, 
and  so  blood  be  upon  thee. 

Verse  11:  But  if  any  man  hate  his  neighbour,  and  lie 
in  wait  for  him,  and  rise  up  against  him,  and  smite  him 
mortally  that  he  die,  and  fleeth  into  one  of  these  cities : 

Verse  12:  Then  the  elders  of  his  city  shall  send  and 
fetch  him  thence,  and  deliver  him  into  the  hand  of  the 
avenger  of  blood,  that  he  may  die. 

Verse  13:  Thine  eye  shall  not  pity  him,  but  thou  shalt 
put  away  the  guilt  of  innocent  blood  from  Israel,  that  it 
may  go  well  with  thee. 

Verse  14:  Thou  shalt  not  remove  thy  neighbour's  land- 
mark, which  they  of  old  time  have  set  in  thine  inheritance, 
which  thou  shalt  inherit  in  the  land  that  the  Lord  thy 
God  giveth  thee  to  possess  it. 

Verse  15:  One  witness  shall  not  rise  up  against  a  man 
for  any  iniquity,  or  for  any  sin,  in  any  sin  that  he  sinncth: 
at  the  mouth  of  two  witnesses,  or  at  the  mouth  of  three 
witnesses,  shall  the  matter  be  established. 


Appendix  131.'] 

Verse  16:  If  a  false  witness  rise  up  against  any  man  to 
testify  against  him  that  which  is  wrong; 

Verse  17:  Then  both  the  men,  between  wliom  the  con- 
troversy is,  shall  stand  before  the  Lord,  before  the  priests 
and  the  judges,  which  shall  be  in  those  days; 

Verse  18:  And  the  judges  shall  make  diligent  inquisi- 
tion: and,  behold,  if  the  witness  be  a  false  witness,  and 
hath  testified  falsely  against  his  brother: 

Verse  19 :  Then  shall  ye  do  unto  him,  as  he  had  thought 
to  have  done  unto  his  brother:  so  shalt  thou  put  the  evil 
away  from  among  you. 

Verse  20:  And  those  which  remain  shall  hear,  and  fear, 
and  shall  henceforth  commit  no  more  any  such  evil  among 
you. 

Verse  21:  And  thine  eye  shall  not  pity;  but  life  shall 
go  for  life,  eye  for  eye,  tooth  for  tooth,  hand  for  hand, 
foot  for  foot. 

CHAPTER  XX 

Verse  1:  When  thou  goest  out  to  battle  against  thine 
enemies,  and  seest  horses,  and  chariots,  and  a  people  more 
than  thou,  be  not  afraid  of  them:  for  the  Lord  thy  God 
is  with  thee,  which  brought  thee  up  out  of  the  land  of 

EgJTt. 

Verse  2:  And  it  shall  be,  when  ye  are  come  nigh  unto 
the  battle,  that  the  priest  shall  approach  and  speak  unto 
the  people. 

Verse  3:  And  shall  say  unto  thee,  Hear,  0  Israel,  ye 
approach  this  day  unto  battle  against  your  enemies:  let 
not  your  hearts  faint,  fear  not,  and  do  not  tremble,  neither 
be  ye  terrified  because  of  them; 

Verse  4:  For  the  Lord  your  God  is  he  that  goeth  with 
you,  to  fight  for  you  against  your  enemies,  to  save  you. 

Verse  5:  And  the  officers  shall  speak  unto  the  people 
saying,  What  man  is  there  that  hath  built  a  new  house, 
c.  L.— 83 


1314  Chimin AL  Law 

and  hath  not  dedicated  it?  let  him  go  and  return  to  his 
house,  lest  he  die  in  the  battle,  and  another  man  dedicate 
it. 

Verse  6 :  And  what  man  is  he  that  hath  planted  a  vine- 
yard, and  hath  not  yet  eaten  of  it?  let  him  also  go  and 
return  unto  his  house,  lest  he  die  in  the  battle,  and  an- 
other man  eat  of  it. 

Verse  7:  And  what  man  is  there  that  hath  betrothed 
a  wife,  and  hath  not  taken  her  I  let  him  go  and  return  unto 
his  house,  lest  he  die  in  the  battle,  and  another  man  take 
her. 

Verse  8:  And  the  officers  shall  speak  further  unto  the 
people,  and  they  shall  say,  What  man  is  there  that  is  fear- 
ful and  fainthearted?  let  him  go  and  return  unto  his 
house,  lest  his  brethren's  heart  faint  as  well  as  his  heart. 
Verse  9:  And  it  shall  be,  when  the  officers  have  made 
an  end  of  speaking  unto  the  people,  that  they  shall  make 
captains  of  the  armies  to  lead  the  people. 

Verse  10 :  When  thou  comest  nigh  unto  a  city  to  fight 
against  it,  then  proclaim  peace  unto  it. 

Verse  11:  And  it  shall  be,  if  it  make  thee  answer  of 
peace,  and  open  unto  thee,  then  it  shall  be,  that  all  the 
people  that  is  found  therein  shall  be  tributaries  unto  thee, 
and  they  shall  serve  thee. 

Verse  12:  And  if  it  will  make  no  peace  with  thee,  but 

will  make  war  against  thee,  then  thou  shalt  besiege  it: 

Verse  13:  And  when  the  Lord  thy  God  hath  delivered  it 

unto  thine  hands  thou  shalt  smite  every  male  thereof  with 

the  edge  of  thy  sword: 

Verse  14:  But  the  woman,  and  the  little  ones,  and  the 
cattle,  and  all  that  is  in  the  city,  even  all  the  spoil  thereof, 
shalt  thou  take  unto  thyself;  and  thou  shalt  eat  the  spoil 
of  thine  enemies,  which  the  Lord  tliy  God  hath  given 
thee. 

Verse  15:  Tlius  shalt  thou  do  unto  all  the  cities  which 
are  very  far  off  from  thee,  which  are  not  of  the  cities  of 
these  nations. 


Appendix  1315 

Verse  16:  But  of  the  cities  of  these  people  which  the 
Lord  thy  God  doth  give  thee  for  an  inheritance,  thou  shalt 
save  alive  nothing  that  breatheth : 

Verse  17:  But  thou  shalt  utterly  destroy  them;  namely, 
the  liitites,  and  Amorites,  the  Canaanites,  and  the  Periz- 
zites,  the  Hivites,  and  the  Jebusites ;  as  the  Lord  thy  God 
hath  commanded  thee: 

Verse  18 :  That  they  teach  you  not  to  do  after  all  their 
abominations,  which  they  have  done  unto  their  gods;  so 
should  ye  sin  against  the  Lord  your  God. 

Verse  19:  When  thou  shalt  besiege  a  city  a  long  time, 
in  making  war  against  it  to  take  it,  thou  shalt  not  destroy 
the  trees  thereof  by  forcing  an  ax  against  them:  for  thou 
mayest  eat  of  them,  and  thou  shalt  not  cut  them  down  (for 
the  tree  of  the  field  is  man's  life)  to  employ  them  in  the 
siege : 

Verse  20 :  Only  the  trees  which  thou  knowest  that  they 
be  not  trees  for  meat,  thou  shalt  destroy  and  cut  them 
down;  and  thou  shalt  build  bulwarks  against  the  city 
that  maketh  war  with  thee,  until  it  be  subdued. 

CHAPTER  XXI 

Verse  1:  If  one  be  found  slain  in  the  land  which  the 
Lord  thy  God  giveth  thee  to  possess  it,  lying  in  the  field, 
and  it  be  not  known  who  hath  slain  him : 

Verse  2:  Then  thy  elders  and  try  judges  shall  come 
forth,  and  they  shall  measure  unto  the  cities  which  are 
round  about  him  that  is  slain: 

Verse  3:  And  it  shall  be,  that  the  city  which  is  next 
unto  the  slain  man,  even  the  elders  of  that  city  shall  take 
an  heifer,  which  hath  not  been  wrought  with,  and  which 
hath  not  drawn  in  the  yoke ; 

Verse  4:  And  the  elders  of  that  city  shall  bring  down 
the  heifer  unto  a  rough  valley,  which  is  neither  eared 
nor  shewn,  and  shall  strike  off  the  heifer's  neck  there  in 
the  valley: 


1316  Criminal  Law 

Verse  5:  And  the  priests  the  sons  of  Levi  shall  come 
near;  for  them  the  Lord  thy  God,  hath  chosen  to  minister 
mito  him,  and  to  bless  in  the  name  of  the  Lord;  and  by 
their  word  shall  every  controversy  and  every  stroke  be 
tried : 

Verse  6:  And  all  the  elders  of  that  city,  that  are  next 
unto  the  slain  man,  shall  wash  their  hands  over  the 
heifer  that  is  beheaded  in  the  valley. 

Verse  7:  And  they  shall  answer  and  say,  Our  hands 
have  not  shed  this  blood,  neither  have  our  eyes  seen  it. 

Verse  8:  Be  merciful,  0  Lord,  unto  thy  people  Israel, 
whom  thou  hast  redeemed,  and  lay  not  innocent  blood 
unto  thy  people  of  Israel's  charge.  And  the  blood  shall 
be  forgiven  them. 

Verse  9:  So  shalt  thou  put  away  the  guilt  of  inno- 
cent blood  from  among  you,  when  thou  shalt  do  that 
which  is  right  in  the  sight  of  the  Lord. 

Verse  10:  When  thou  goest  forth  to  war  against  thine 
enemies,  and  the  Lord  thy  God  hath  delivered  them  into 
thine  hands,  and  thou  hast  taken  them  captive. 

Verse  11:  And  seest  among  the  captives  a  beautiful 
woman,  and  hast  a  desire  unto  her,  that  thou  wouldst 
have  her  to  thy  wife ; 

Verse  12:  Then  thou  shalt  bring  her  home  to  thine 
house;  and  she  shall  shave  her  head,  and  pare  her  nails; 

Verse  13:  And  she  shall  put  the  raiment  of  her  cap- 
tivity from  off  her,  and  shall  remain  in  thine  house,  and 
bewail  her  father  and  her  mother  a  full  month;  and  after 
tliat  thou  shalt  go  in  unto  her  and  be  her  husband,  and 
slie  vsliall  be  thy  wife. 

Verse  14:  And  it  shall  be,  if  tiiou  have  no  delight  in 
her,  then  thou  shalt  let  her  go  whither  she  will;  but  thou 
slialt  not  sell  her  at  all  for  money,  thou  shalt  not  make 
Hierchandisc  of  her,  l)ecausc  thou  hast  liumbled  her. 

Verse  15:  If  ;i  inan  linvc  two  wives,  one  beloved,  and 
anotlicr  Iwilcd,  and  llicy  have  hoi  iic  liini  cliildrcn,  both  the 


Appendix  1317 

beloved  and  the  hated;  and  if  the  firstborn  son  be  hers 
that  was  hated: 

Verse  16:  Then  it  shall  be  when  he  maketh  his  sons 
to  inherit  that  which  he  hatli,  that  he  may  not  make  the 
son  of  the  beloved  firstborn  before  the  son  of  the  hated, 
which  is  indeed  the  firstborn. 

Verse  17:  But  he  shall  acknowledge  the  son  of  the 
hated  for  the  firstborn,  by  giving  him  a  double  portion 
of  all  that  he  hath:  for  he  is  the  beginning  of  his  strength; 
the  right  of  the  firstborn  is  his. 

Verse  18:  If  a  man  have  a  stubborn  and  rebellious  son, 
which  will  not  obey  the  voice  of  his  father,  or  the  voice 
of  his  mother,  and  that,  when  they  have  chastened  him, 
will  not  hearken  unto  them: 

Verse  19:  Then  shall  his  father  and  his  mother  lay 
hold  on  him,  and  bring  him  out  unto  the  elders  of  his  city, 
and  unto  the  gate  of  his  place; 

Verse  20:  And  they  shall  say  unto  the  elders  of  his  city. 
This,  our  son,  is  stubborn  and  rebellious,  he  will  not 
obey  our  voice;  he  is  a  glutton,  and  a  drunkard. 

Verse  21:  And  all  the  men  of  his  city  shall  stone  him 
with  stones,  that  he  die:  so  shalt  thou  put  evil  away 
from  among  you ;  and  all  Israel  shall  hear  and  fear. 

Verse  22 :  And  if  a  man  have  committed  a  sin  worthy 
of  death,  and  he  be  put  to  death,  and  thou  hang  him  on 
a  tree: 

Verse  23:  His  body  shall  not  remain  all  night  upon 
the  tree,  but  thou  shalt  in  any  wise  bury  him  that  day; 
(for  he  that  is  hanged  is  accursed  of  God) ;  that  thy 
land  be  not  defiled,  which  the  Lord  thy  God  giveth  thee 
for  an  inheritance. 

CHAPTER  XXII 

Verse  1:  Thou  shalt  not  see  thy  brother's  ox  or  his 
sheep  go  astray,  and  hide  thyself  from  them:  thou  shalt 
in  any  case  bring  them  again  unto  thy  brother. 


1318  Ceiminal  Law 

Verse  2 :  And  if  thy  brother  be  not  nigh  unto  thee,  or  if 
thou  know  him  not,  then  thou  shalt  bring  it  unto  thine 
own  house,  and  it  shall  be  with  thee  until  thy  brother  seek 
after  it,  and  thou  shalt  restore  it  to  him  again. 

Verse  3 :  In  like  manner  shalt  thou  do  with  his  ass ;  and 
so  shalt  thou  do  with  his  raiment;  and  with  all  lost  thing 
of  thy  brother's,  w^hich  he  hath  lost,  and  thou  hast  found, 
shalt  thou  do  likewise ;  thou  mayest  not  hide  thyself. 

Verse  4:  Thou  shalt  not  see  thy  brother's  ass  or  his  ox 
fall  down  by  the  way,  and  hide  thyself  from  them:  thou 
shalt  surely  help  him  to  lift  them  up  again. 

Verse  5:  The  w^oman  shall  not  wear  that  which  per- 
taineth  unto  a  man,  neither  shall  a  man  put  on  a  woman 's 
garment ;  for  all  that  do  so  are  abomination  unto  the  Lord 
thy  God. 

Verse  6:  If  a  bird's  nest  chance  to  be  before  thee  in  the 
way  in  any  tree  or  on  the  ground,  whether  they  be  young 
ones  or  eggs,  and  the  dam  sitting  upon  the  young,  or  upon 
the  eggs,  thou  shalt  not  take  the  dam  with  the  young. 

Verse  7:  But  thou  shalt  in  any  wise  let  the  dam  go,  and 
take  the  young  to  thee;  that  it  may  be  well  with,  thee  and 
that  they  mayest  prolong  thy  days. 

Verse  8:  When  thou  buildest  a  new  house,  then  thou 
shalt  make  a  battlement  for  thy  roof,  that  thou  bring 
not  blood  upon  thine  house,  if  any  man  fall  from  thence. 

Verse  9:  Thou  shalt  not  sow  thy  vineyard,  with  divers 
seeds:  lest  the  fruit  of  thy  seed  which  thou  hast  sown, 
and  the  fruit  of  thy  vineyard  be  defiled. 

Verse  10:  Thou  shalt  not  plow  with  an  ox  and  an  ass 
together. 

Verse  11:  Thou  shalt  not  wear  a  garment  of  divers 
sorts,  as  of  woolen  and  linen  together. 

Verse  12:  Thou  shalt  make  thee  fringes  upon  the  four 
quarters  of  thy  vesture,  wherewith  thou  coverest  thyself. 

Verse  13:  If  any  man  take  a  wife,  and  go  in  unto  her, 
and  hate  her: 

Verse  14:  And  give  occasions  of  speech  against  her. 


Appendix  1319 

and  bring  up  an  evil  name  upon  lier,  and  say,  I  took 
this  woman,  and  when  I  came  to  her,  I  found  her  not  a 
maid: 

Verse  15:  Then  shall  the  father  of  the  damsel,  and  her 
mother,  take  and  bring  forth  the  tokens  of  the  damsel's 
virginity  unto  the  elders  of  the  city  in  the  gate: 

Verse  16:  And  the  damsel's  father  shall  say  unto  the 
elders,  I  gave  my  daughter  unto  this  man  to  wife,  and 
he  hateth  her; 

Verse  17:  And,  lo,  he  hath  given  occasions  of  speech 
against  her,  saying,  I  found  not  thy  daughter  a  maid; 
and  yet  these  are  the  tokens  of  my  daughter's  virginity. 
And  they  shall  spread  the  cloth  before  the  elders  of  the 
city. 

Verse  18:  And  the  elders  of  that  city  shall  take  that 
man  and  chastise  him. 

Verse  19:  And  they  shall  amerce  him  in  an  hundred 
sheckels  of  silver,  and  give  them  unto  the  father  of  the 
damsel,  because  he  hath  brought  up  an  evil  name  upon 
a  virgin  of  Israel :  and  she  shall  be  his  wife ;  he  may  not 
put  her  away  all  his  days. 

Verse  20:  But  if  this  thing  be  true,  and  the  tokens 
of  virginity  be  not  found  for  the  damsel; 

Verse  21:  Then  they  shall  bring  out  the  damsel  to  the 
door  of  her  father's  house,  and  the  men  of  her  city 
shall  stone  her  with  stones  that  she  die:  because  she  hath 
wrought  folly  in  Israel,  to  play  the  whore  in  her  father's 
house:  so  shalt  thou  put  evil  away  from  among  you. 

Verse  22:  If  a  man  be  found  lying  with  a  woman  mar- 
ried to  an  husband,  then  they  shall  both  of  them  die,  both 
the  man  that  lay  with  the  woman,  and  the  woman:  so 
shalt  thou  put  away  evil  from  Israel. 

Verse  23:  If  a  damsel  that  is  a  virgin  be  betrothed  unto 
an  husband,  and  a  man  find  her  in  the  city  and  lie  with 
her; 

Verse  24:  Then  ye  shall  bring  them  both  out  into  the 
gate  of  that  city,  and  ye  shall  stone  them  with  stones 


1320  Ckiminal  Law 

that  they  die ;  the  damsel,  because  she  cried  not ;  being  in 
the  city;  and  the  man,  because  he  hath  humbled  his  neigh- 
bour's wife:  so  thou  shalt  put  away  evil  from  among  you. 

Verse  25:  But  if  a  man  find  a  betrothed  damsel,  in  the 
field,  and  the  man  force  her,  and  lie  with  her:  then  the 
man  only  that  lay  with  her  shall  die. 

Verse  26:  But  unto  the  damsel  thou  shall  do  noth- 
ing; there  is  in  the  damsel  no  sin  worthy  of  death;  for 
as  when  a  man  riseth  against  his  neighbour,  and  slayeth 
him,  even  so  is  this  matter : 

Verse  27:  For  he  found  her  in  the  field,  and  the  be- 
trothed damsel  cried,  and  there  was  none  to  save  her. 

Verse  28:  If  a  man  find  a  damsel  that  is  a  virgin,  which 
is  not  betrothed,  and  lay  hold  on  her,  and  lie  with  her, 
and  they  be  found: 

Verse  29:  Then  the  man  that  lay  with  her  shall  give 
unto  the  damsel's  father  fifty  shekels  of  silver,  and  she 
shall  be  his  wife;  because  he  hath  humbled  her,  he  may 
not  put  her  away  all  his  days. 

Verse  30:  A  man  shall  not  take  his  father's  wife,  nor 
discover  his  father's  skirt. 

CHAPTER  XXIII 

Verse  1 :  He  that  is  wounded  in  the  stones,  or  hath  his 
privy  member  cut  off,  shall  not  enter  into  the  congrega- 
tion of  the  Lord. 

Verse  2:  A  bastard  shall  not  enter  into  the  congrega- 
tion of  the  Lord;  even  to  his  tenth  generation  shall  he 
not  enter  into  the  congregation  of  the  Lord. 

Verse  3:  An  Ammonite  or  IMoabite  shall  not  enter  into 
the  congregation  of  the  Lord;  even  to  their  tenth  genera- 
tion shall  they  not  enter  into  tlie  congregation  of  the 
Lord  for  ever: 

Verse  4:  Because  they  met  you  not  with  l)read  and  witli 
water  in  the  way,  when  ye  came  forth  out  of  Egyi)t:  and 


AprENDix  i;!:^l 

because  they  hired  against  thee  Balaam  tlie  son  of  Beor 
of  Pethor  of  Mesopotamia,  to  curse  tliee. 

Verse  5:  Nevertheless  the  Lord  thy  God,  would  not 
hearken  unto  Balaam;  but  the  Lord  thy  God  turned  the 
curse  into  a  blessing  unto  thee,  because  the  Lord  thy 
God  loved  thee. 

Verse  6:  Thou  shalt  not  seek  their  peace  nor  their 
prosperity  all  the  days  for  ever. 

Verse  7:  Thou  slialt  not  abhor  an  Edomite;  for  he  is 
thy  brother:  thou  shalt  not  abhor  an  Egyptian;  because 
thou  wast  a  stranger  in  his  land. 

Verse  8:  The  children  that  are  begotten  of  thee,  shall 
enter  into  the  congregation  of  the  Lord  in  their  third 
generation. 

Verse  9:  When  the  host  goeth  forth  against  thine  ene- 
mies, then  keep  thee  from  evoiy  wicked  thing. 

Verse  10:  If  there  be  among  you  any  man  that  is 
not  clean  by  reason  of  uncleanness  that  chanceth  him 
by  night,  then  shall  he  go  abroad  out  of  the  camp,  he  shall 
not  come  within  the  camp: 

Verse  11:  But  it  shall  be,  when  evening  cometh  on,  he 
shall  wash  himself  with  water:  and  when  the  sun  is  down, 
he  shall  come  into  the  camp  again. 

Verse  12:  Thou  shalt  have  a  place  also  without  the 
camp,  whither  thou  shalt  go  forth  abroad: 

Verse  13:  And  thou  shalt  have  a  paddle  upon  thy 
weapon;  and  it  shall  be,  when  thou  wilt  ease  thyself 
abroad,  thou  shalt  dig  therewith,  and  shalt  turn  back 
and  cover  that  which  cometh  from  thee: 

Verse  14:  For  the  Lord  thy  God  walketh  in  the  midst 
of  thy  camp,  to  deliver  thee,  and  to  give  up  thine  enemies 
before  thee;  therefore  shall  thy  camp  be  holy:  that  he 
see  no  unclean  thing  in  thee,  and  turn  ixwixy  from  thee. 

Verse  15:  Thou  shalt  not  deliver  unto  his  master  the 
servant  which  is  escaped  from  his  master  unto  thee: 

Verse  16:  He  shall  dwell  with  thee,  even  among  you, 


1322  Chimin AL  Law 

in  that  place  which  he  shall  choose  in  one  of  thy  gates, 
where  it  liketh  him  best :  thou  shalt  not  oppress  him. 

Verse  17 :  There  shall  be  no  whore  of  the  daughters  of 
Israel,  nor  a  sodomite  of  the  sons  of  Israel. 

Verse  18:  Thou  shalt  not  bring  the  hire  of  a  whore, 
or  the  price  of  a  dog,  into  the  house  of  the  Lord,  thy 
God,  for  any  vow:  for  even  both  these  are  abomination 
unto  the  Lord  thy  God. 

Verse  19:  Thou  shalt  not  lend  upon  usury  to  thy 
brother;  usury  of  money,  usury  of  bicurals,  usury  of  any 
thing  that  is  lent  upon  usury. 

Verse  20:  Unto  a  stranger  thou  mayest  lend  upon 
usury;  but  unto  thy  brotlier  thou  shalt  not  lend  upon 
usury:  that  the  Lord  thy  God  may  bless  thee  in  all  that 
thou  settest  thine  hand  to  in  the  land  whither  thou  goest 
to  possess  it. 

Verse  21:  When  thou  shalt  vow  a  vow  unto  the  Lord 
thy  God,  thou  shalt  not  slack  to  pay  it;  for  the  Lord  thy 
God  w^ill  surely  require  it  of  thee;  and  it  would  be  sin 
in  thee. 

Verse  22:  But  if  thou  shalt  forbear  to  vow,  it  shall 
be  no  sin  in  thee. 

Verse  23:  That  which  is  gone  out  of  thy  lips  thou 
shalt  keep  and  pcrf oiTn ;  even  a  freewill  offering,  accord- 
ing as  thou  hast  vowed  unto  the  Lord  thy  God,  which 
thou  hast  promised  with  thy  mouth. 

Verse  24:  When  thou  comest  into  thy  neighbor's  vine- 
yard, then  thou  mayest  cat  grapes  thy  fill  at  thine  own 
pleasure;  but  thou  shalt  not  put  any  in  thy  vessel. 

Verse  25:  When  thou  comest  into  the  standing  corn 
of  thy  neiglibor,  then  thou  mayest  pluck  the  ears  with 
thine  hand;  but  thou  shalt  not  move  a  sickle  unto  thy 
neighbor's  standing  com. 

CHAPTER  XXIV 

Verse  1:  When  a  man  hath  taken  a  wife,  and  married 
her,  and  it  come  to  pass  that  she  find  no  favor  in  his 


Appendix  1323 

eyes,  beoaiise  he  hath  found  some  uncleanness  in  her: 
then  let  him  write  her  a  bill  of  divorcement,  and  give 
it  into  her  hand,  and  send  her  out  of  his  house. 

Verse  2:  And  when  she  is  departed  out  of  his  house, 
she  may  go  and  be  another  man's  wife. 

Verse  3:  And  if  the  latter  husband  hate  her,  and  write 
her  a  bill  of  divorcement,  and  giveth  it  into  her  hand, 
and  sendeth  her  out  of  his  house ;  or  if  the  latter  husband 
die,  which  took  her  to  be  his  wife; 

Verse  4:  Pier  former  husband,  which  sent  her  away, 
may  not  take  her  again  to  be  his  wife,  after  that  she  is 
defiled;  for  that  is  abomination  before  the  Lord:  and 
thou  shalt  not  cause  the  land  to  sin,  which  the  Lord  thy 
God  giveth  thee  for  an  inheritance. 

Verse  5 :  When  a  man  hath  taken  a  new  wife,  he  shall 
not  go  out  to  war,  neither  shall  he  be  charged  with  any 
business;  but  he  shall  be  free  at  home  one  year,  and 
shall  cheer  up  his  wife  which  he  hath  taken. 

Verse  6:  No  man  shall  take  the  nether  or  the  upper 
millstone  to  pledge:  for  he  taketh  a  man's  life  to  pledge. 

Verse  7:  If  a  man  be  found  stealing  any  of  his  brethren 
of  the  children  of  Israel,  and  niaketh  merchandise  of 
him,  or  selleth  him;  then  that  thief  shall  die;  and  thou 
shalt  put  evil  away  from  among  you. 

Verse  8:  Take  heed  in  the  plague  of  leprosy,  that  thou 
observe  diligently  and  do  according  to  all  that  the  priests 
the  Levites  shall  teach  you:  as  I  commanded  them,  so 
ye  shall  observe  to  do. 

Verse  9:  Remember  what  the  Lord  thy  God  did  unto 
Miriam  by  the  way,  after  that  ye  were  come  forth  out 
of  Egypt. 

Verse  10:  When  thou  dost  lend  thy  brother  any  thing, 
thou  shalt  not  go  into  his  house  to  fetch  his  pledge. 

Verse  11:  Thou  shalt  stand  abroad,  and  the  man  to 
whom  thou  dost  lend  shall  bring  out  the  pledge  abroad 
unto  thee. 


1324  Criminal  Law 

Verse  12:  And  if  a  man  be  poor,  thou  slialt  not  sleep 
with  his  pledge. 

Verse  13 :  In  any  case  thou  slialt  deliver  him  to  pledge 
again  when  the  sun  goeth  down,  that  he  may  sleep  in 
his  own  raiment,  and  bless  thee:  and  it  shall  be  right- 
eousness unto  thee  before  the  Lord  thy  God. 

Verse  14:  Thou  shalt  not  oppress  an  hired  servant 
that  is  poor  and  needy,  whether  he  be  of  thy  brethren 
or  of  thy  strangers  that  are  in  thy  land  within  thy  gates. 

Verse  15:  At  his  day  thou  shalt  give  him  his  hire, 
neither  shall  the  sun  go  down  upon  it;  for  he  is  poor, 
and  setteth  his  heart  upon  it:  lest  he  cry  against  thee 
unto  the  Lord,  and  it  be  sin  unto  thee. 

Verse  16:  The  fathers  shall  not  be  put  to  death  for 
the  children,  neither  shall  the  children  be  put  to  death 
for  the  fathers:  every  man  shall  be  put  to  death  for  his 
own  sin. 

Verse  17.  Thou  shalt  not  pervert  the  judgment  of  the 
stranger,  nor  of  the  fatherless:  nor  take  a  widow's  rai- 
ment to  pledge: 

Verse  18:  But  thou  shalt  remember  that  thou  wast  a 
bondman  in  Egypt,  and  the  Lord  thy  God  redeemed  thee 
hence:  therefore  I  command  thee  to  do  this  thing. 

Verse  19:  When  thou  euttest  down  thine  harvest,  in 
thy  field,  and  hast  forgot  a  sheaf  in  the  field,  thou  shalt 
not  go  again  to  fetch  it:  it  shall  be  for  the  stranger,  for 
the  fatherless  and  for  the  widow: 

Verse  20:  And  thou  shalt  remember  that  thou  wast  a 
bondman  in  tlie  land  of  Egypt:  therefore  I  command 
thee  to  do  this  thing. 

CHAPTER   XXV 

Verse  1:  If  there  be  a  controversy  between  men,  and 
they  come  unto  judgment,  that  the  judges  may  judge 
them;  then  thoy  sluill  jiisUfy  tlie  righteous,  and  condemn 
the  wicked. 


Appendix  132.j 

Verse  2:  And  it  shall  be,  if  the  wicked  niaii  be  worthy 
to  be  beaten,  that  the  judge  shall  cause  him  to  lie  down, 
and  be  beaten  before  his  face,  according  to  his  fault,  by 
a  certain  number. 

Verse  3:  Forty  stripes  lie  may  give  him,  and  not  ex- 
ceed: lest,  if  he  should  exceed,  and  beat  him  above  these 
with  many  stripes,  then  thy  brother  should  seem  vile 
unto  thee. 

Verse  4:  Thou  shalt  not  muzzle  the  ox  when  he 
treadeth  out  the  corn. 

Verse  5:  If  brethren  dwell  together,  and  one  of  them 
die,  and  have  one  child,  the  wife  of  the  dead  shall  not 
marry  without  unto  a  stranger:  her  husband's  brother 
shall  go  in  unto  her,  and  take  her  to  him  to  wife,  and 
perform  the  duty  of  an  husband's  brother  unto  her. 

Verse  6:  And  it  shall  be,  that  the  first  born  which  she 
beareth  shall  succeed  in  the  name  of  his  brother  which 
is  dead,  that  his  name  be  not  put  out  of  Israel. 

Verse  7:  And  if  the  man  like  not  to  take  his  brother's 
wife,  then  let  his  brother's  wife  go  up  to  the  gate,  unto 
the  elders,  and  say.  My  husband's  brother  refuseth  to 
raise  up  unto  his  brother  a  name  in  Israel,  he  will  not 
perform  the  duty  of  my  husband's  brother. 

Verse  8:  Then  the  elders  of  his  city  shall  call  him, 
and  speak  unto  him:  and  if  he  stand  to  it,  and  say,  I  like 
not  to  take  her; 

Verse  9:  Then  shall  his  brother's  wife  come  unto  him 
in  the  presence  of  the  elders,  and  loose  his  shoe  from 
off  his  foot,  and  spit  in  his  face,  and  shall  answer  and 
say.  So  shall  it  be  done  unto  that  man  that  will  not  build 
up  his  brother's  house. 

Verse  10:  And  his  name  shall  be  called  in  Israel,  The 
house  of  him  that  hath  his  shoe  loosed. 

Verse  11:  When  men  strive  together  one  with  another, 
and  the  wife  of  the  one  draweth  near  for  to  deliver  her 
husband  out  of  the  hand  of  him  that  smiteth  him,  and 
putteth  forth  her  hand,  and  taketh  him  by  the  secrets: 


1326  Criminal  Law 

Verse  12:  Then  thou  shall  cut  oE  her  hand,  thine  eye 
shall  not  pity  her. 

Verse  13:  Thou  shalt  not  have  in  thy  bag  divers 
weights,  a  great  and  a  small. 

Verse  14:  Thou  shalt  not  have  in  thine  house  divers 
measures,  a  great  and  a  small. 

Verse  15:  But  thou  shalt  have  a  perfect  and  just 
weight,  a  perfect  and  just  measure  shalt  thou  have: 
that  thy  days  may  be  lengthened  in  the  land  which  the 
Lord  thy  God  giveth  thee. 

Verse  16:  For  all  that  do  such  things,  and  all  that  do 
unrighteously,  are  an  abomination  unto  the  Lord  thy 
God. 

Verse  17:  Remember  what  Amelek  did  unto  thee  by 
the  waj^,  when  ye  were  come  forth  out  of  Egypt: 

Verse  18 :  How  he  met  thee  by  the  way,  and  smote  the 
hindmost  of  thee  even  all  that  were  feeble  behind  thee, 
when  thou  wast  faint  and  weary;  and  he  feared  not  God. 

Verse  19:  Therefore  it  shall  be,  when  the  Lord  thy 
God  hath  given  thee  rest  from  all  thine  enemies  round 
about  in  the  land  which  the  Lord  thy  God  giveth  thee 
,  for  an  inheritance  to  possess  it,  that  thou  shalt  blot  out 
the  remembrance  of  Amelek  from  under  heaven;  thou 
shalt  not  forget  it. 


TABLE  OF  CASES 

Parts  I  and  II 


[references  ark  to  sections] 


Anderson  v.  O'Donell,  13  A.  S. 

E.    728    

Anderson  v,  Dunn,  6  Wh.  201. 
A.  T.  &  S.  R.  R.  V.  State,  40 

L.   R.   A.   29 

Abbrey    v.    State,    36    S.    W. 

(Tex.   App.)    930 

Adair  v.  State,  6  Okla.   Crini. 

284,  118  P.  416,  44  L.  R.  A. 

(N.    S.)     119 

Ayers  v.  State,  10  Okla.  Crim. 

616,  140  Pac.  1025,  52  L.  R. 

A.    (N.  S.)    2480 

Ayers  v.  State,  26  S.  W.  396. . 
Angelo  V.  People,  96  111.  209, 

36  Am.  Rep.   132 

Armour  Packing  Co.  v.  United 

States,  153  Fed.  1,  82  C.  C. 

A.  136,  14  L.  R.  A.  (N.  S.) 

400    

Adams  v.  State,  25  Ark.  405. . 
Alonzo  V.  State,  15  Tex.  App. 

378,  19  Am.  Rep.  207 

Arlington  v.  Com.,  87  Va.  96, 

12    S.    E.    224 

Alexander    v.    State,    21    Tex. 

App.  406,  57  Am.  Rep.  617, 

17    S.   W.    139 

Anderson  v.  State,  174  Ala.  11, 

56  So.  998,  Am.  Cas.  1914  B 

760    

Angerhoffer  v.  State,   15  Tex. 

App.   613 

Anderson  v.  Com.,  5  Eand 

(Va.)  627,  16  Am.  Dec. 

775  


14 

20 


21 


98 


113 


113 
114 

133 


164 
167 

204 

206 


224 


718a 


328 


Alonzo  V.  State,  15  Tex.  App. 

378,  39  Am.  Rep.  207 331 

Allen  V.  People,  82  111.  610..  349 
Aiioehicks    v.     State,     6     Tex. 

App.  524    353 

Adams   v.   Waggoner,   33    Ind. 

531,  5   Am.   Rep.   230 353 

Atwater    v.     Sawyer,    76    Me. 

538,  49  Am.  Rep.  634 358 

Allen    V.    State,    73    Am.    Dec. 

760,    28   Ga.    395 371 

Alderman    v.    People,    4    Mich       • 

414    420 

Allen  V.  State,  91  Ala.  19,  24 

A.    S.    R.    856 581 

Adams   v.    Com.,    153   Ky.    88, 

154    S.    W.    381,    44    L.    R. 

A.    (N.    S.)    637 586 

Adams  v.  State,  60  Ala.  52..  590 
Alexander    v.    State,    12    Tex. 

540    593 

Arcid  V.  State,  26   Tex.   App. 

205    597 

Ashley  v.  Young,  2  Burr  802.  606 
Adams   v.   Com.,    153   Ky.    88, 

154  S.  W.  381,  44  L.  R.  A. 

(N.    S.)     637 697 

Arnold   v.   State,  52   Ind.   281, 

21  Am.  Rep.  175 698 

Andre  v.  State,  5  la.  389,  68 

Am.    Dec.    708 705 

Arnold  v.  Cost.,  22  Am.  Dec. 

306    506 

Arnold   v.   Cost.,   22   Am.  Dec. 

312    511 

Alexander    v.    State,    28    Tex. 

App.  187,  12  S.  W.  595 517 


1327 


1328 


Table  of  Cases 


[references  are 
Arnald  v.  Cost.,  22  Am.  Dec. 

316  517 

Allen   V.   State,   4-i   Tex.   App. 
63,  68  S.  W.  286,  100  A.  S. 

E.    830 518 

Alexander  v.  State,  Tex.   2  S. 

W.    595 524 

Adams  v.  State,  65  Ind.  565 .  .  530 
Adams  V.  State,  47  111.  376..  534 
Anderson    v.    State,    27     Tex. 

App.  177,  11  A.  S.  K.  33..      552 
Alexander    v.    State,    25    Tex. 
App.  260,  7  S.  W.  67,  8  A. 

S.    E.    438 557 

Adams  v.  State,  47  HI.  376 ... .  558 
Aldrich  v.  State,  53  N.  H.  398, 

16    Am.    Eep.    339 567 

Adams    v.    Com.,    153    Ky.    88 
154,  S.  W.  381,  44  L.  E.  A. 

(N.   S.)    637 570 

Alierman  v.  People,  Mich.  414  434 
Anderson  v.  Dunn,  6  Wli.   (U. 

S.)     204 450 

Anderson  v.  Dunn,  61  Ohio  216  450 
Anderson  v.  Dunn,  6  Wh.   (U. 

S.)     204 452 

Alderson    v.    Commissions,    32 
W.  Va.  640,  9  S.  E.  868,  25 
A.  S.  E.  840,  5L.  R.  A.  334.      456 
Arnold  v.   Com.,  80   Ky.   300, 

44  Am.  Eep.  480 468 

Atwell  V.  United  States,  162 
Fed.  97,  89  C.  C.  A.  97,  15 
Ann.  Cas.   253,  17  L.   E.  A. 

1049    472 

Allen   V.   State,    10   Tex.    App. 

150     495 

Allen   V.   State,   16  Tex.   App. 

150 500 

Allen  V.  Strite,  44  Tex.  App. 
63,  OS  S.  W.  286,  100  A.  S. 

E.    839    506 

Arnold   v.   State,  52   Tnd.   28], 

21   Am.  Eep.   175 6!)8 


TO   SECTIONS] 


B 


Bowers  v.  State,  24  Tex.  App. 
542,  7  S.  W.  247,  5  A.  S.  E. 

901    443 

Burdett  v.  Abbot,  14  E.  Eep.  1     445 
Burdett  v.  Coleman,  14  East..      445 
Burnham  v.  Morrissey,  14  Gray 
(Mass.)    226,    74    Am.    Dec. 

676    458 

Bell  V.  State,  45  Am.  Dec.  130     458 
Bullock  V.  McDoughno,  2  Pear- 
son  (Pa.)    195 469 

Boshford  v.  Willis,  78  Kan.  96 
Pac.  663,  16  Ann.  Cas.  310, 

18  L.  E.  A.  268 328 

Boshford  v.  Wells  (Kans.),  18 
L.   E.   A.    (N.   S.)    581,   see 

note  to  this  case 329 

Boshford  v.  Wells,  78  Kans. 
295,  96  Pac.  663,  16  Ann. 
Cas.  310,  18  L.  E.  A.  (N.  S.) 

580   330 

Bird   V.    State,    27    Tex.    App. 

635,  11   A.  S.  E.  214 330 

Bediford  v.  State,  86  Ala.  67, 

11  A.  S.  E.  20 330 

Blake  v.   Barnard,  9   C.   &   P. 

626   346 

Bartlier    v.    I'eople,    5    N.    E. 

(111.),  338    536 

Buel  V.  People,  78  N.  Y.  492, 

34  Am.  Eep.  555 541 

Bcthelheimer  v.  State,  54  Ind. 

128    542 

Burner  v.  State,  58  Ind.  158.  .      544 
Bayette  v.  State,  2  Tex.  App. 

93    548 

Bryant  v.  State,  65  N.  C.  327.      550 
Brown  v.  Weaver,  42  L.  E.  A. 

423   Miss.  7 550 

BohaiiiKin  v.  Com.,  6  Bush  312     557 

Boyd  V.  Elliott,  11   la.  97 16 

Baker   v.    People,   3   Cow.    (N. 

v.)  486,  15  Am.  Dec.  322.  .  .        18 
Bainott  V.  Hopkins,  7  Fed.  312       50 


Table  of  Cases 


132ii 


[references  aue 

Brownsville   v.   Bosse,   43   Tex. 

440     78 

Buch  V.  Hanson,  70  111.  480..  78 
Blackhard    v.    State,    18    Tes. 

App.  500    103 

Bradley  v.  State,  31  Ind.  492.  100 
Bariihart  v.  State,  82  Wis.  23, 

51  N.  W.  1009 117 

Bowling    V.    State,    16    S.    W. 

658   123 

Burt  V.  State,  40  S.  W.  1000.  129 
Bibb  V.  State,  94  Ala.  31,  10 

So.   506    136 

Barber  v.  State,  78  Ala.  19.  . .  161 
Bechtelheinier  v.  State,  54  Ind. 

28    169 

Brooks  V.  State,  90  Ind.  428..  169 
Bratton  v.  State,  10  Hump.  103  169 
Brooks  V.  State,  51  Ga.  612.  .  .  172 
Broughton  v.  McGraw,  39  Fed. 

692   174 

Boyd  V.  State,  88  Ala.   169,  7 

So.  268   180 

Bower  v.  State,  24  Tex.  A.  542, 

5  A.  S.  E.  901,  7  S.  W.  247.  192 
Breese   v.    State,   12    Ohio    St. 

146,   80  Am.  Dec.   340 192 

Black  V.  State,  36  Ga.  447,  91 

Am.  Dec.  772 210 

Bell  V.  State,  48  Ala.  684,  17 

Am.    Rep.    40 213 

Ben  V.  State,  22  Ala.  958  Am. 

Dec.  234 218 

Brown  v.  State,  38  Tex.  482.  .  230 
Blocker  v.  State,  9  Tex.  App. 

279   242 

Barows  v.   State,  49  Miss.   17, 

19  Am.  Rep.  25,  1  Cr.  Rep. 

249    242 

Brown  v.  State,  98  Miss.  786, 

54  So.  305,  34  L.  R.  A.   (N. 

S.)    841    243 

Billard    v.    State,   30    Tex.    94 

Am.  Dec.  317 244 

Ballard  v.  Carmicheol,  83  Tex. 

355    249 

C.  L.— 84 


TO   SECTIONS] 

Block  V.  State,  83  Ala.  81,  3 

A.  S.  R.  691,  3  So.  814 256 

Belote  V.  State,  36  Miss.  96,  72 

Am.    Dec.    163 256 

Brown  V.  Walker,  161  U.  S.  91  307 
Barron    v.     Baltimore,    7    Pet. 

(U.  S.)   243 326 

Baker  v.  ,  3  Cow.  (N.  Y.) 

686,  15  A.  M.  Dec.  322 326 

Brinkley  v.  State,  89  Ala.  34, 

8  So.  22,  18  A.  S.  R.  87 559 

Brown  v.  State,  98  Miss.  786, 

54  So.  305,  34  L.  R.  A.   (N. 

S.)    811    560 

Bonfonti  v.  State,  2  Minn.  123  569 
Bratton    v.    State,    10    Hunph. 

103    569 

Black  V.   State,  83   Ala.   81,  3 

So.  814,  3  A.  S.  R.  691 570 

Bell  V.  State,  7  Tex.  App.  25. .  577 
Barfield  v.  State,  29  Ga.  127, 

72  Am.  Dec 511 

Baldwin  v.  Com.,  71  Am.  Dec. 

704,  Supra   511 

Biles  V.  Com.,  75  Am.  Dec.  568, 

32  Pa.  St.  529 512 

Brown   v.    State,    15   Ohio   St. 

717,  45  Am.  Dec.  671 512 

Barefield  v.  State,  29  Ga.  127.  513 
Barrum  v.  State,   15  Ohio  St. 

717,  45  Am.  Dec.  601 518 

Burks  V.   State,  24  Tex.   App. 

326    525 

Butler  V.   State,   125   111.    641, 

18  N.  E.  338,  8  A.  S.  R.  423, 

1  L.  R.  A.  211 530 

Brown  v.  State,  83  Ala.  33,  3 

So.  857,  3  A.  S.  R.  685 531 

Brown  v.  State,  83  Ala.  33,  3 

So.  857,  3  A.  S.  R.  685....  532 
Blozer  v.  People,  129  111.  112, 

21  N.  E.  818,  4  L.  R.  A.  579  534 
Brcnnon  v.  State,  25  Ind.  403 .  694 
Bloom  V.  Richards,  2  Ohio  St. 

391 716 


1330 


Table  or  Cases 


[references  .\re 
Bohney  v.  State,  21  Tex.  App. 

597    718 

Baker  v.  State,  4  Ark.  56 631 

Buell  V.  State,  45  Ark.  336.  .  .  663 
Brown   v.    U.    S.    Cert.    Court, 

May,    1875    •. 664 

Beacher  v.  Anderson,  45  Mich. 

543,  8  N.  W.  539 667 

Bamber   v.    Com.,    10   Pa.    St. 

339     674 

Beckwith  v.  State,  21  Ind.  225  675 
Bailey    v.    Com.,    82    Va.    107, 

3  A.  S.  E.  88 687 

Bass    V.    State,    15    Tex.    App. 

62    687 

Burney  v.  State,  21  Tex.  App. 

565     689 

Bean  v.    State,   People    (111.), 

16  N.   E.  656 692a 

Bunnett  v.  State,  83  Ala.  40,  3 

So.    612    692a 

Britt      V.      State,      7      Hunp. 

(Tenn.)    45    693 

Brown  V.  State,  28  Ark.  128..  694 
Barnes  v.  State,  9  Tex.  App. 

128    694 

Braley  v.  Eose,  47  la.  651...  577 
Bell  V.  State,  7  Tex.  App.  25  577 
Baker    v.    State,    29    Ohio    St. 

184,  23  Am.  Eep.  731,  2  Am. 

Cr.  Kep.  337 581 

Brewer  v.  State,  93  Ark.  470, 

125  S.  W.  127,  20  Ann.  Cas. 

1378,   30   L.    E.    A.    (N.   S.) 

339    581 

Brown   v.   State,   9   Tex.   App. 

81     583 

P.eatty  v.  State,  61  Miss.  18..  584 
Brooks  V.  State,  26  Tex.  App. 

184    587 

Blunt  V.  Com.,  4  Leigh  680.  .  .  587 
Bailey  v.  State,  58  Ala.  414..  587 
Burrows  v.  State,  137  Ind.  474, 

45  A.  S.  R.  210 590 

Baxter  v.  State,  34  Tex.  App. 

516,  31   S.  W.  394,  53  A.  S. 

U.    720    604 


TO   SECTIONS] 

Baker  v.  State,  4  Ark.  56 630 

Bowers  v.  State,  24  Tex.  App. 

542,  id.,  5  A.  S.  R.  901....  631 
Beach  v.  Hancock,  59  Am.  Dee. 

373,  27  N.  H.  223 346 

Berchard  v.  Booth,  4  Wis.  67.  349 
Brown  v.  State,  58  Ga.  212..  349 
Boyd  V.  State,  88  Ala.  169,  7 

So.  268,  16  A.  S.  R.  820...  359 
Bright  V.  State,  10  Tex.  App. 

68   361 

Burney  v.  State,  21  Tex.  App. 

565    375 

Baker  v.  People,  203  111.  68  N. 

E.   93    399 

Burfield  v.  State,  14  Ala.  603.  406 
Beal  V.  State,  15  Ind.  378...  419 
Bonifield  v.  Blake,  6  Car.  and 

P.  75 426 

Barr  v.  Essex  Trades  Council, 

45   N.    J.    Eq.    101,   29    Atl. 

881    432 

Brown   v.   State,   2   Tex.   App. 

115    438 

Bloomer  v.  State,  48  Md.  521- 

31    442 

Bucl  V.  Street,  9  John.  441...  459 
Burdett  v.  Com.,  103  Va.  838, 

48  S.  E.  878,  106  A.  S.  R. 

916,  68  L.  R.  A.  251 472 

Burk  V.  People,  91  N.  Y.  5. .  .  481 
Berry   v.   Com.,    96    Am.    Dec. 

767    481 

Brown  v.  State,  23  Tex.  App. 

214,  4  S.  W.  588 482 

Brown    v.    State,   1    Ala.    3    S. 

W.  816   487 

Bcaty  V.  State,  82  Ind.  228. . .  491 
Buckalow    V.    State,    11    Tex. 

App.   353    496 

Buckaloo     V.     State,     11     Tex. 

App.   353    496 

Buckaloo    V.     State,     11     Tex. 

App.   353    500 

Barton  v.  People,  135  111.  405, 

25  A.  S.  R.  375 501 


Table  of  Cases 


1331 


[referen 
Blackwell    v.    State,    41    Tex. 

App.  104,  51  S.  W.  919,  96 

A.   S.   R.    778 

Brown  v.   State,  37  Tex.  App. 

104,  38  S.  W.  1008,  G6  A.  S. 

R.    794    

Barton  v.  People,  135  111.  405, 

25   N.   E.   776,  25   A.   S.  R. 

375,  10  L.  R.  A.  302 

Barton  v.  People,  25  A.  S.  R. 

378    to   387 

Baysinger  v.  State,  77  Atl.  63, 

54    Am.    Rep.    46 

Biles  V.  Com.,  75  Am.  Dec.  568, 

32  Pa.  St.  529 

0 

Com.  V.  Edwards,  9  Dana  447 

Com.  V.  Clary,  8  Mass.  72 

Com.  V.  Commissioners,  37  Pa. 

St.  237   

Com.  V.  Terrel,  1  Duvall  153.  . 
Com.  V.  CoUens,  1  Mass.  116. 
Com.    V.    Upricbards,    3    Grey 

434    

Com.  V.  Gillespi,  7  S.  &  R.  469, 

10  Am.  Dec.  475 

Com.   V.    Harvey,    8    Am.    Jur. 

69    

Com.  V.  Gillespi,  7  S.  &  R.  469, 

10  Am.  Dec.  475 

Com.  V.  Van  Floy,  1  Met.  (K. 

Y.)    1 

Com.  V.  Rogers,  9  Met.  500.. 
Com.  V.  Pulaski  County,  17  S. 

W.  448  (Ky.) 

Com.    V.    Illinois   Cent.    R.    R. 

Co.,  152  Ky.  320,  153  S.  W. 

459,   45   L.    R.    A.    (N.    S.) 

334   

Com.  V.  Pulaski  County,  17  S. 

W.   448    (Ky.) 

Com.  V.  Pulaski  County,  17  S. 

W.   338    (Ky.) 

Com.  V.  Bagley,  24  Mass.  279 


CES   ARE   TO   SECTIONS] 

Com.    V.    Murphey,    165    Mass. 
66,  43   N.   E.  405,  52  A.   S. 

501  R.  496   156 

Com.    V.    Connelli,    163    Mass. 

539,  40  N.  E.  862 160 

501        Com.    V.    Campbell,    7    Allen. 

541,  83  Amer.  Dec.  705 162 

Com.  V.  Mixer,  207  Mass.  141, 

501  93   N.  E.   249,  31   L.  R.   A. 

(N.   S.)    467,  20  Ann,  Cas. 

505  1152   and  note 164 

Com.  V.  Emmons,  98  Mass.  6.      164 

506  Com.  V.  Farren,  9  Allen  489.     164 
Com.  V.  White,  11  Allen  264.      164 

508       Com.  V.  Bradford,  9  Mete.  268  166 

Com.  V.  Shields,  1  Mass.  228.  166 

Com.  V.  Devlin,  126  Mass.  253 .  170 

Com.  V.  York,  9  Mete.  103...  171 

9       Com.  V.  Makely,  131  Mass.  21  172 

88       Com.   V.   Bradford,    126   Mass. 

42    172 

87       Com.   V.    Goldstein,    114   Mass. 

91           273     172 

91       Com.  V.  Brooks,  9  Gray  299..  173 
Com.  V.  Bonner,  9  Mete.  Mass. 

94  410     174 

Com.  V.  Hill,  11  Mass.  136...  187 

95  Com.   V.   Knapp,  9   Pick.   496.      188 
Com.  V.  Glover,  111  Mass.  395.      189 

95       Com.  V.  Harris,  7  Grat.  600..      204 
Com.    V.    McChard,    2    Danna. 

99  242     205 

Com.  V.  Vaughn,  101  Ky.  603, 

99  42  S.  W.   117,  45  L.   R.   A. 

129  858    207 

Com.     V.    Harrison,     11     Grey 

398  207 

141 

Com.  V.  Thompson,  24  Pick, 

374  207 

Com.  V.  Sheldon,  3  Mass.  188.  208 

Com.  V.  Clair,  7  Allen  525 211 

Com.    V.    Summerville,    1    Va. 

Cas.    163    211 

142       Com.  V.  Squires,  1  Mete.  258 . .  217 

Com.  V.  Pinchase,  2  Pick.  521 .  232 

142       Com.   V.   Bockman,    105   Mass. 

145  53     232 


1332 


Table  of  Cas^s 


[REFERENCES    ARE 

Com.    V.    Farherty,   140    Mass. 

454,   5   N.   E.   758 250 

Com.  v.  Welsch,  97  Mass.  523.  250 
Com.  V.  Musey,  112  Mass.  287  250 
Com.  V.  Kenedy,  131  Mass.  584  272a 
Com.  V.  Keys,  11  Grey  Mass. 

323   273 

Com.  V.  Brown,  9  Leigh  (Va.) 

633   273 

Com.   V.   Brown,   9   Leigh   633, 

36    Va.    — ,    33     Am.    Dec. 

263    273 

Com.  V.  Culver,  126  Mass.  464.  275 
Com.  V.  Sego,  125  Mass.  210. .  278 
Com.  V.  McDermott,  123  Mass. 

440,  25  Am.   Rep.   120 280 

Com.  V.  Knapp,  10  Pick.  477, 

20  Am.  Dec.  534 281 

Com.  V.  Knapp,  9  Pick.  496..  283 
Com.  V.  Brown,  131  Mass.  69.  284 
Com.  V.  McDermott,  123  Mass. 

440    , 285 

Com.  V.  Call,  21  Pick.  515 287 

Com.  V.  Goodwin,  186  Pa.  218, 

40  A.  T.  L.  412,  65  A.  S.  R. 

852    290 

Com.  V.  Smith,  119  Mass.  505.      292 

Com.  V.  Howe,  9  Grey  110 292 

Com.   V.  Hickman,   46   Pa.   St. 

357    302 

Com.  V.  Ahl,  43  Pa.  St.  53 .  .  .  302 
Com.  V.  Obrian,  89  Ky.  354,  12 

S.  W.   516 321 

Com.    V.    Weghmoth,    79    Am. 

Dec.  776,  2  Allen  144 324 

Com.     V.      Putniiui,      1      Pick. 

(Mass.)    136    328 

Com.  V.  Call,  32  Am.  Dec.  284, 

21  Pick.  509  and  note 328 

Com.     V.     Kilwcll,     1      Pittsb. 

(Pa.)    255    328 

Com.  V.  Call,  21  Pick.  509,  32 

Am.  Dec.   284    329 

Com.  V.  Tucker,  11  Mass.  403.  345 

Com.  V.  Flynn,  3  Cush.  529.  .  .  345 

Com.  V.  Harvey,  10  Met.  423.  345 

Com.  V.  McDonald,  5  Cush.  365  347 


TO   SECTIONS] 

Com.    V.    Straton,    114    Mass. 

303,   19  A.   S.  R.  350 348 

Com.  V.  McDonald,  5  Cush.  365  350 
Com.  V.  Mann,  116  Mass.  58..  351 
Com.  V.  Straton,  19  Am.  Dec. 

350,  114  Mass.  303 352 

Com.  V.  Eyrl,  1  S.  &  R.  347 ..  .  354 
Com.   V.   Powers,   7   Met.    600, 

41  Am.  Dec.  465 356 

Com.  V.  Mithel,  1  Phila.  63 .  .  357 
Com.  V.  Powers,  7  Met.  600 .  .  357 
Com.  V.  White,  110  Mass.  407.  361 
Com.  V.  Tolliver,  69  Am.  Dec. 

252,  8  Gray  (Mass.)  397...  371 
Com.  V.   McKie,  61  Am.   Dec. 

410,  1  Gray  (Mass.)  61 371 

Com.  V.  Baxter,  4  Mass.  439.  .  372 
Com.    V.    Kingberry,    5    Mass. 

105    372 

Com.  V.  riagg,  135  Mass.  545  372 
Com.  V.  Randolph,  146  Pa.  82, 

23  Atl.  388,  28  A.  S.  R.  782  372 
Com.   V.    McCullock,    15    Mass. 

227     380 

Com.  V.  Jackson,  11  Bush.  679, 

74  Ky.  21,  Am.  Rep.  225..  393 
Com.   V.  Lane,   113   Mass.  471, 

18    Am.    Rep.    509,    5    Vol. 

Cj'c,   p.    692 397 

Com.  V.  Colloghan,  2  Va.  Cas. 

460   402 

Com.  V.  Silsbee,  9  Mass.  417..  404 
Com.  V.  Hickoy,  16  Mass.  385.  404 
Com.  V.  Lowery,  158  Mass.  18  413 
Com.  V.  Glover,  111  Mas.s.  395  415 
Com.  V.  Hunt,  4  Met.   Ill,  38 

Am.  Doc.   346 419 

Com.  V.  Bliss,  12  Phil.  580...  420 
Com.    V.    Kingsberry,   5    Mass. 

105     421 

Com.  V.  Walker,  108  Mass.  309  421 
Com.    V.    Goldsmith,    12    Phil. 

632   425 

Com.  V.  Warren,  6  Mass.  74.  .  425 
Com.  V.  Hunt,  38  Am.  Dec.  346  427 
Com.  V.  Eastman,  48  Am.  Dec. 

596   427 


Table  ok  Cases 


1333 


[RErERENCES    ARE 

Com.  V.  Hunt,  4  Mete.  (Mass.) 

Ill,  38  Am.  Dec.  346 436 

Com.  V.  Brown,  14  Gray  419.  442 
Com.  V.  Bond,  1  Gray  (Mass.) 

364    448 

Com.   V.   Hensley,   2  Va.   Gas. 

149    448 

Com.      V.      Price,      10      Gray 

(Mass.)    472,    71    Am.    Dec. 

668   448a 

Com.   V.    Perkins,   124   Pa.   St. 

36,  16  Atl.  525,  2  L.  E.  A. 

223     458 

Com.    V.    Jackson,    38    S.    W. 

(Ky.)   424   466 

Com.   V.   Eyan,    155   Wis.  .523, 

31  A.  S.  E.  560,  15  L.  E.  A. 

317,  30  N.  E.  364 479 

Com.  V.  Berry,  99  Mass.  428.  .  479 
Com.  V.  Doherty,  127  Mass.  26  479 
Com.  V.  Simpson,  9  Mete.  138.  481 
Com.  V.  Smith,  129  Mass.  124.  483 
Com.  V.  Cooper,  130  Mass.  285  483 
Com.  V.  Libbey,  45  Am.  Dec. 

— ,  11  Met.  (Mas.)  64 487 

Com.  V.  King,  9  Cush.  284...  487 
Com.  V.  Turner,  97  Mass.  50.  .  487 
Com.  V.   Marressy,  86  Pa.   St. 

416    487 

Com.  V.  Libbey,  45  Am.  Dec. 

185,  11  Met.  (Mass.)  64 489 

Com.  V.  Stone,  236  Pa.  35,  84 

Atl.  659    489a 

Com.  V.  Foster,  107  Mass.  221.  490 
Com.  V.  Ferguson,  135  Ky.  32, 

121  S.  W.  967,  21  Ann.  Cas. 

434,   24  L.   E.   A.   1101   and 

note    490 

Com.  V.  Eichelberber,  119  Pa. 

St.  254,  4  A.  S.  E.  642,  13 

Atl.  422   490 

Com.  V.  Ferguson,  135  Ky.  32, 

121  S.  W.  967,  21  Ann.  Cas. 

434,   24   L.    E.    A.    (N.    S.) 

1101     495 

Com.  V.  Wallace,  114  Pa.  St. 

405,  6  Atl.  685 495 


TO   SECTIONS] 

Com.  V.  Grady,  13  Bush    (Ky.) 

285     496 

Com.  V.  Beckett,  119  Ky.  817, 

84  S.  W.  758,  27  Ky.  L.  Eep. 

265,   115   A.   S.    E.    285,   68 

L.  E.  A.  638 498 

Com.  V.  Drew,  36  Mas.  179.  .  .  498 
Com.  V.  Drew,  36  Mass.  119.  .  .  500 
Com.  V.  Coe,  115  Mass.  502. .  .  500 
Com.  V.  Sehwarts,  92  Ky.  510, 

36   A.   S.   E.   609,   18   S.  W. 

775    500 

Com.  V.  Drew,  19  Pick.  179..  501 
Com.  V.  Coe,  115  Mass.  481.  .  .  503 
Com.  V.  Swartz,  18  S.  W.  775.  503 
Com.  V.  Devlin,  141  Mass.  423, 

6  N.  E.   64 504 

Com.  V.  Foster,  114  Mass.  311, 

19  Am.  Eep.  353 509 

Com.  V.  Baldwin,  77  Mass.  187, 

11    Gray   197,   71   Am.   Dec. 

703     509 

Com.  V.  Foster,  114  Mass.  311, 

19  Am.  Eep.  353 509 

Com.  V.  Baldwin,  71  Am.  Dec. 

704,  11  Gray  197  (Mass.)  .  .  511 
Com.    V.    Sonkey,    22    Pa.    St. 

390,  60  Am.  Dec.  91 511 

Com.  V.  Baldwin,  71  Am.  Dec. 

703,  11  Gray  197  (Mass.) . .  513 
Com.  V.  Foster,  114  Mass.  417  513 
Com.   V.   Este,   140  Mass.   279, 

2  N.  E.  769 514 

Com.     V.     Baldwin,     11     Gray 

(Mass.)    197,    71    Am.    Dec. 

704    515 

Com.  V.  Sarle  (2  Binn),  4  Am. 

Dee.   446    518 

Com.  V.  Brown,  147  Mass.  585, 

18  N.  E.  587,  9  A.  S.  E.  736, 

1  L.  E.  A.  620 518 

Com.  V.  Houston,  8  Mass.  107.     520 

Com.  V.  Eoss,  2  Mass.  373 524 

Com.  V.  White,  145  Mass.  392, 

14  N.  E.   661 525 

Com.  V.  Foster,  114  Mass.  311, 

19  Am.  Eep.  353 527 


1334 


Table  of  Cases 


[references  are 

Com.  T.  Eay,  3  Gray  446 527 

Com.  V.  Dunn,  58  Pa.  St.  9.  .  .  530 

Com.  V.  Hawkins,  3  Gray  4G3.  531 

Com.  V.  Webster,  5  Gush  305.  531 

Com.  V.  Drmiim,  58  Pa.  St.  9.  532 

Com.  V.  Hopkins,  3  Gray  463.  532 
Com.    V.    Cauffman,    10    Bush 

495    535 

Com.  V.  Fox,  7  Gray  585 536 

Com.    V.    Campbell,    89    Mass. 

541,  83  Am.  Dec.  705,  9  Am. 

&   Eng.   End.   536 536 

Com.  V.  Spotford,  66  Mass.  176  537 
Com.     V.     Webster,     S.     Cusli 

(Mass.)    295,   52    Am.    Dec. 

711 545 

Com.  V.  Drum,  58  Pa.  St.  9..  548 
Com.     V.     Selfridge,     Har.     & 

Thorn.  Self  Defense  1 548 

Com.  V.  Drew,  4  Mass.  396.  .  .  549 
Com.    V.    Hartwell,    128    Mass. 

415,  35  Am.  Eep.   391 552 

Com.  V.  Drew,  68  Pa.  St.  563.  558 

Com.   V.   Drew,  4  Mass.   491..  560 
Com.     V.      Boeman,      8     Gray 

(Mass.)  497 573 

Com.  V.  Brown,  4  Mass.  580.  .  .  579 

Com.  V.  Williams,  2  Cush  583.  582 

Com.  V.  Collins,  12  Alien  181.  583 
Com.    V.    Lawless,    103    Mass. 

425    583 

Com.  V.  White,  11  Cush.  483.  584 

Com.  V.  Toney,  97  Mass.  58 .  .  .  589 
Com.   V.   O'Brien,   12    (Mass.) 

Allen  183   591 

Com.    V.    McDonald,    5    Cush. 

365   594 

Com.  V.  Morris,  1  Va.  Cas.  176, 

5  Am.  Dec.  515 602 

Com.  V.  Clap,  3  Am.  Dec.  212, 

4   Mass.   163,   3   Oroeiil.    Kv. 

164    602 

Com.  V.  Clap,  3  Am.  Dec.  212.  604 

Com.  V.  Smith,  33  S.  W.  420.  .  604 
f'om.   Duonc    (Pa.),   1    Burney 

601,  2  Am.  Dec.  497 604 


TO   SECTIONS] 
Com.  V.  Blanding,  15  Am.  Dee. 

210,  3   Pick  304 605 

Com.  V.  Blanding,  12  Am.  Dec. 

218-219   600 

Com.  V.  Blanding,  15  Am.  Dec. 

210     609 

Com.  V.  Clap,  3  Am.  Dec.  212.  613 
Com.  V.   Chambers,  3   Cr.  Law 

Mag.  543    617 

Com.    V.    Lourbert,    12    Allen 

(Mass.)  177 638 

Com.  V.  Cheney,  114  Mass.  281  639 
Com.  V.  Hopkins,  43  Am.  Eep. 

527,  133  Mass.  38 639 

Com.  V.  Oaks,  113  Mass.  8 639 

Com.  V.  Upton,  6  Grey  473 ..  .  640 
Com.  V.  Lovett,  4  Clark  65 .  .  .  643 
Com.  V.  Munget,  4  Clark  6.  .  .  .  643 
Com.  V.  Warden,  128  Mass.  52, 

35  Am.  Eep.  357 645 

Com.  V.  Passamore,  I.  S.  &  E., 

219   648 

Com.  V.  Boone,  2  Gray  74 651 

Com.  V.  Card,  105  Mass.  582.  659 
Com.  V.  Parker,  2  Cush  212 ..  .  667 
Com.  V.  Baker,  133  Mass.  399.  677 
Com.  V.  Burke,  105  Mass.  376, 

7  Am.  Eep.  531 686 

Com.  V.  Green,  2  Pick  380.  ..  .  688 
Com.    V.    Murphey,    165    Ma.ss. 

66,  52  A.  S.  E.  496,  42   N. 

E.   504    690 

Com.     V.     Fogerty,     8     Gray 

(Mass.)    489    691 

Com.  V.  White,  133  Pa.  St.  182, 

19  Atl.  340 700 

Com.  V.  Wright,  27  S.  W.  815.  705 
Com.   V.  Howe   (1908),  35  Pa. 

Super.  Ct.  554,  same  case  on 

other  appeals  in   (1909)    38 

Pa.     Super.     Ct.     208     and 

(1910)    42    Pa.    Sui)or.    Ct. 

136    705 

Com.     V.     Knalnnd,     20     I'ick 

206    708 

Com.  V.  Has,  122  Mass.  40...      721 


Table  oi:   Cases 


1335 


[hkferences  akf, 
Conniiiiigs    v.    State    of    Mis- 
souri, 4  Wall  277 12 

Commings    v.    State    of    Mis- 
souri, 4  Wall.  277 14 

Carpenter  v.  State  of  Pa.,  17 

Wall  191    14 

Crandell  v.  Nev.,  6  Wall.  25 . .  42 
Campbell    v.    Wilson,    6    Tex. 

379   82 

Cypress  Ponn  Draining  Co.  v. 

Hooper,  2  Met.  (Ky.)  350..       81 
Cressman    v.    State,    54    Ark. 

283    117 

Carpenter  v.  Com.,  92  Ky.  452, 

18  S.  W.  9 117 

Coyle  V.  Com.,  100  Pa.  St.  573, 

45  Am.  Eep.  397 127 

aark  V.  State,  12  Ohio  St.  483, 

40  Am.  Dec.  431 128 

Clark  V.  State,  26  S.  W.  68.  .  .  128 
Goodwin  v.  State,  96  Ind.  550.  129 
Commissioners  v.  Boston  &  M. 

R.   R.    C,   8   Amer.    &   Eng. 

R.  E.  Cas.  298 141 

Cuttler  V.  State,  36  N.   J.  L. 

125   147 

Clark    V.    State,    98    Ala.    474, 

56  A.  S.  R.  45 156 

Crisman  v.  State,  54  Ark.  283, 

15  S.  W.  889,  26  A.  S.  R.  4     161 
Chapman    v.    State,    43    Tex. 

App.    326,    65    S.    W.    1078, 

96  A.  S.  R.  874 189 

Cartwrite    v.    State,    16    Tex. 

App.  493    189 

Cammeron    v.    State,    32    Tex. 

App.    180    195 

Cross  V.  N.  C,  132  U.  S.  131.  199 
Cannon  v.  People,  127  111.  507, 

11  A.  S.  R.  147,  21  N.  E. 

525  215 

Carroll  v.  State,  50  Tex.  App. 

485,   98   S.   W.   859,   123   A. 

S.  R.  851,  14  Ann.  Cas.  476.  228 
Cane  v.  State,  18  Tex.  App. 

387  275 


TO   SECTIONS] 

Carter  v.  State,  37  Tex.  362.  .  277 
Collons  V.  State,  20  Tex.  App. 

399   277 

Clawson     v.     State,     14    Ohio 

St.  1 286 

Cuddington    v.    Wilksons,    IIo- 

hert's  Rep.   81 302 

Chanler  v.  State,  141  Ind.  106, 

39  N.  E.  444 158 

Clemm  v.  State,   154   Ala.  12, 

45  So.  212,  129  A.  S.  R.  17 

and   note    220 

Crouse  v.  State,  16  Ark.  566.  327 
Carolti  v.   State,  97  Am.  Dec. 

471,  42  Miss.  334 328 

Caroti  v.  State,  42  Miss.  224, 

97  Am.  Dec.  465 328 

Crouse  v.  State,  16  Aik.  566.  .  328 
Carotti  v.  State,  42  Miss.  334, 

97   Am.  Dec.  465 330 

Carotti  v.  State,  42  Miss.  334, 

97  Am.  Dec.  471 330 

Collins  V.  State,  14  Ala.  608. .  330 
Canvile  v.  State,  35  Ala.  392.  333 
Curkinstate      v.      People,      36 

Mich.  309   339 

Case:y  v.  State,  25  Tex.  380.  .  .  459 
aark    V.     State,    Breese    340 

(111.),   12   Am.   Dec.    184...     460 

Crow  V.  State,  24  Tex.  12 464 

Casey  v.  State,  25  Tex.  384. .  .  464 
Cooper  V.  People,  13  Colo.  337, 

22  Pae.  790,  6  L.  R.  A.  430.  468 
Carter  v.  Com.,  96  Va.  791. .  .  472 
Cobbcy  V.  Burks,  38  Am.  Rep. 

364  477 

Calkins  v.  State,  98  Am.  Dec. 

121    481 

Campbell  v.  State,  35  Ohio  St. 

70    487 

Clark   V.   Com.   Ky.,   29   S.  W. 

973     489 

Calwell  V.  Hall.  60  Miss.  330.  489a 
Clark    V.    State,    61    Tex.    Cr. 

Rep.  539,  135  S.  W.  575...  489a 
Campbell  v.  State,  35  Ohio  70.     490 


1336 


Table  of  Cases 


[references  are 
Clawson  v.  Case,  120  Wis.  650, 

100  N.  W.  578,  116  A.  S.  E. 

972,  9  Am.  Cas.  966 503 

Chancey  v.  State,  130  Ala. 

71,  50  So.  403,  89  A.  S.  E. 

17  50o 

Canntee  v.  State,  33  S.  W.  127  510 
Caner  v.  People,  39  Mich.  786  518 
Couch  V.  State,  28  Ga.  367 ..  .  518 
Cox  v.  State,  117  Ala.  103,  23 

So.    806,    67    A.    S.    E.    41, 

L.  E.  A.   760 399a 

Crump    V.    Com.,    54    Va.    927, 

6  S.  E.  620,  10  A.  S.  E.  805.  418 
Cov  V.  State,  8  Tex.  App.  303  423 
Crump  V.  Com.,  84  Va.  927,  6 

N.  E.  620,  10  A.  S.  E.  595.  430 
Carew      v.      Eutherford,      106 

Mass.  10-15,  8  Am.  Eep.  287  430 
Crump  V.  Com.,  84  Va.  927.  .  .      431 

Cole  V.  People,  84  111.  216 434 

Cole  V.  People,  34  la.  216 436 

Cohea  v.   State,  11   Tex.   App. 

153    443 

Carnahan     v.     Camahan,     143 

Mich.    390,    107    N.    W.    73, 

114   A.    S.    E.    660,    8    Ann. 

Cas.    53 449 

Clifford   V.   Brandon,   2   Camp. 

370    726 

Cooper    V.    Hohnson,    81    Mo. 

483   634 

Clark  V.  Com.,  79  Ky.  349...  637 
Cadwell  v.  State,  17  Conn.  467  638 
Clark  V.   Com.,  79  Ky.   358,   1 

Hawk  P.  C.  693 647 

f'hamherlin  v.  People,  23  N.  J. 

85,  80  Am.  Dec.  255 658 

Covey  V.  State,  23   Tex.   App. 

388,  5  S.  W.  283 659 

Crump  V.  Com.,  75  Va.  922.  .  .  667 
Cameron  v.  United  States,  2.'{1 

U.  S.  710,  58  Led.  448 608 

Cox  V.  State,  3  Tex.  App.  479, 

see    18    Tex.    App.    134,    26 

Tex.   App.   14 069 


TO    SECTIONS] 

Crosswell    v.    State,    13    Mich. 

427,  87  Am.  Dec.  774 685 

Cunningham   v.    Com.,    88   Va. 

37   689 

Childs    V.    State    Sup.    Court, 

1875   .  .- 694 

Callahan  v.  State,  30  Am.  Eep. 

211   705 

Carroll  v.  State,  74  Miss.  688, 

60   A.   S.   E.   539 705 

Carroll  y.    State,   23    Ala.    28, 

58  Am.  Dec.  282 559 

Campbell  v.  Com.,  88  Ky.  402, 

21  A.  S.  E.  348 562 

Crawford  v.  State,  96  Ga.  701, 

17   S.   E.   620,  35   A.   S.   E. 

535   562 

Crowell  V.  State,  24  Tex.  App. 

404,  6  S.  W.  318 570 

Curtis  V.  Topeka,  30  Kans.  76, 

59  Am.  Eep.  529 574 

Culp   V.   State,   1    Part    (Ala.) 

33,  26  Am.  Dec.  357 575 

Calentine    v.    State,    50    Tex. 

App.  94,  S.  W.  1061,  123  A. 

S.  E.  837 575 

Conner     v.     State,     6     S.     W. 

(Tex.)    138    577 

Coomes  v.  State,  17  Tex.  App. 

258    585 

Clark  V.  State,  86  Tcnn.  511..  594 
Castlebcrry   v.    State,   35    Tex. 

App.  382,  60  A.  S.  E.  531.  .  598 
Cooper  V.  State,  29  Tex.  App. 

8,  25  A.  S.  E.  712 598 

Coffin  V.  Coffin,  1,  1  Kent.  235     609 

Click  V.  State,  3  Tex.  282 619 

Click  V.  State,  3  Tex.  280 622 

Coyle  V.   State,   44    (Tex.)    S. 

W.  1087   521 

Cross    V.    People,    47    111.    152, 

95   Am.   Doc.  474 525 

CuiMiiiiuliMin  V.  State,  49  Miss. 

703    527 

Cupps  V.  State,  120  Wis.  504, 

97  N.  W.  210,  102  A.  S.  E. 

996   531 


Table  of  Cases 


133; 


[rkferences  ake 

Com  well  V.  State,  61  Tex.  App. 

122,  134  S.  W.  221  Ann.  Cas. 

1913b,   71 531 

Coffee      V.      State,      3      Yerg 

(Tenn.)    283,    24    Am.    Dec. 

570   533 

Copeland    v.    State,    7    Hump. 

479    541 

Cupps  V.  State,  120  Wis.  504, 

97  N.  W.  210,  102  A.  S.  K. 

996  542 

Copeland    v.    State,    7    Hump. 

(Tenn.)    342    546 

Coldwell  V.  State,  41  Tex.  86.  550 
Clements  v.  State,  50  Ala.  117  550 
Clampett  v.  State,  9  Tex.  App. 

27   555 

Case  V.  State,  41  Tex.  182 555 

Cunningham  v.  State,  17  Tex. 

App.   89    558 

Carlton  v.   People,   150,   181,   37 

N.  E.  244,  41  A.  S.  R.  346.  345b 
Chapman  v.  State,  78  Ala.  463, 

56  Am.  Rep.  42 346 

Clamper  v.  State,  12  Ohio  St. 

466    353 

Cole   V.   Ronen,   88   Mich.   219, 

50  N.  W.   138,   13  L.  R.  A. 

848   358 

Clampett  v.  State,  9  Tex.  App. 

27   361 

Campbell  v.  People,  16  111.  17, 

61  Am.  Dec.  49 361 

Connor  v.  State,  4  Yeager,  137, 

26  Am.  Dec.  217 363 

Cunningham  v.  State,  49  Miss. 

685   364 

Cox  V.  People,  82  111.  191 373 

Crawford  v.  State   (Miss.),  35 

L.  R.  A.  224 397 

Canon   v.    United    States,    116 

U.  S.  55,  29  L.  ed.  56 399a 

Chicago   B.  &   O.   R.   Co.   v.   Gil- 

dersleeve,   219  Mo.   170,  118 

S.  W.  86,  16  Ann.  Cas.  749.      452 


TO   SECTIONS] 


D 


Donald  V.  State,  48  Miss.  661, 

12  Am.  Rep.  375 18 

Dynes  v.  Hoover,  20  How.  65.  47 
Doherty  v.  State,  73   Vt.   386, 

50  Atl.  1113 113 

Dod.son  V.  State,  62  Ala.  308, 

34  Am.  Rep.  2 154 

Davis  V.  Com.  (Ky.),  23  S.  W. 

505    296 

Dominiek   v.   Bowduin,   44   Ga. 

357    304 

Dunkin  v.  Com.,  36  Ky.  295..  332 
Duncan  v.  Com.,  6  Dana  (Ky.) 

295  353 

Dunn  V.  Miller,  135  N.  C.  204, 

47  S.  E.  421,   102  A.   S.  R. 
528,  65  L.  R.  A.  800 359 

Damemhofer  v.  State,  69  Ind. 

295,  35  Am.  Rep.  216 359 

Doralin  v.  State,  14  Tex.  App. 

61   359 

Drysdale  v.  State,  83  Ga.  744, 

10   S.   E.   358,  20  A.   S.   R. 

340,  6  L.  R.  A.  124 360 

Dunaway    v.    People,    51    Am. 

Rep.  686,  10  111.  333 374 

Dwyer    v.    Brannoch,    66    Mo. 

391,  27  Am.  Rep.  359 391 

Dill    V.    State,    35    Tex.    App. 

240,  33  S.  W.  126,  60  A.  S. 

R.  37    420 

Dumas  v.  State,  14  Tex.  App. 

464,  46  Am.   Rep.   241 393 

Denet      v.      State,      2      Head 

(Tenn.)    505,    75    Am.    Dec. 

747    445 

Dashing  v.  State,  78  Ired  357 .  447 
Dahnke  v.  People,  168  111.  102, 

48  N.   E.   108,  39  L.  R.   A. 

197   449 

Dunham  v.  State,  6  la.  245.  .  .  466 
Davis  V.  Davis,  20  N.  C.  170.  469 
Dorsey  v.  State,  11  Ala.  40.  .  .      500 


1338 


Table  of  Cases 


[referexces  are 
Delk  V.  State,  135  Ga.  312,  69 

S.  E.  541,  Am.  Cas.,  1912a, 

105  532 

Dabney  v.  State,  113  Ala.  38 

21  So.  211,  59  A.  S.  R.  92.      542 

Dill  V.  State,  25  Ala.  15 548 

Dyson  v.  State,  26  Miss.  362 .  .      555 

Dell  V.  State,  25  Ala.  15 561 

Dabney  v.  State,  113  Ala.  38, 

59  A.  S.  R.  92,  21  So.  211.     565 
Dunaway    v.    People,    110    111. 

333,  51  Am.  Kep.  686 569 

Dignowitty   v.    State,    17    Tex. 

App.  67,  Am.  Dec.  670 588 

Davis  V.  State,  10  Lea  (Tenn.) 

707    588 

Debs  V.  State,  45  Tex.  650 589 

Deere  v.  Wolf,  65  la.  32,  21 

N.  W.   168 601 

Davis  V.   State,   22   Tex.   App. 

45   630 

Davis  V.   State,  22  Tex.   App. 

45   632 

Drake  V.  State,  14  Neb.  535...  639 
Don  Moran  v.  People,  25  Mich. 

12,  Am.  Eep.  283 685 

Doyle   V.    State,   39    Fla.    155, 

63  A.  S.  R.  159 687 

Dalas    V.    State,    3    A.    L.    E. 

1459   705a 

Davis  V.  Brown,  27  Ohio  326.      707 

E 

Ex   parte   Wilson,    114    U.    S. 

417,  4  Am.  Cr.  Rep.  283...  16 
Ex    parte    Wilson,    114   U.    S. 

417,  29  L.   ed.   89 17 

Ex  parte  Bergcr,  193  Mo.  16, 

112A.  S.  R.  472 18 

Erie  R.  Ry.  v.  Cooper,  33  Pa. 

St.   282    21 

Ex  parte  Bolman,  4  Crancli  75  24 
Ex  parte  Milliagn,  4  Wall.  125  43 
Ex  parte  Garland,  4  Wall.  333  43 
Ex  parte  Reed,  100  U.  S.  13- 

25    47 

Ex  parte  Mason,  105  U.  S.  697       47 


TO   SECTIONS] 

Ex  parte  McKnight,  28  N.  E. 

(Ohio)    1034    70 

Ex   parte   Toss,   102   Col.   347, 

21  A.  S.  E.  181 70 

Ex  parte  Burnett,  44  Cal.  84.  78 
Ex  parte  Robinson,  6  McLean 

(U.  S.)  355   84 

Ex  parte  Bushnell,  8  Ohio  St. 

599    84 

Ex  parte  Knowles,  5  Cal.  301.  85 
Ex  parte  Watkins,  3  Pet.   (U. 

S.)   193   85 

Ex  parte  McArdle,  7  Wall.  506  87 
Ex    parte    Eodgers,     10    Tex. 

App.   655 95 

Eskridge     v.     State,     25     Ala. 

30    291 

Ex  parte  Well,  18  How.  533 . .  300 
Ex  parte  Hunt,  1010  Ark.  284.  300 
Ex  parte  Friffiths,  118  Ind.  83  300 
Ex  parte  Garland,  4  Wall.  (U. 

S.)    333     302 

Ex  parte  Correll,  13  Nev.  193.  302 
Ex    parte    Hawkins,    61    Ark. 

341,  54  A.   S.  R.  209 303 

Ex  parte  Reno,  66  Mo.  266,  27 

Am.  Rep.  337 306 

Ex  parte  Powel,  73  Ala.  517.  .  306 
Elliott   v.   State,    (Tex.   App.) 

19    S.   W.    249 306 

Evans  v.  O'Connor,  174  Mass. 

287,   75  A.  S.  R.  346 306 

Ex    parte    Nicholds,    110    Cal. 

654    326a 

Easton  v.   State,   39   Ala.   551 

87  Am.  Dee.  491 460 

Elsey   V.    State,   47    Ark.   572, 

2  S.  W.  337 518 

Estell    V.    State,   51    N.    J.    L. 

182,  17  Atl.  118 553 

Evans  v.  State,  44  Miss.  762.  .  557 
Estep    v.    Com.,    86    Ky.    39, 

9  A.  S.  R.  260 562 

Evans  v.  State,  33  Ga.  4,566.  .      566 
Ellis  V.  People,  21   How.  356.  .      584 
Exum  V.  State,  90  Tcnn.   501, 
17   S.   W.   107,   25   A.   S.   R. 


Table  of  Cases 


1339 


[references  are 

700,  15  L.  R.  A.  381,  S.  W. 

25   A.   S.  R.   703 662 

Easton  v.  State,  39  Ala.  551, 

87  Am.  Dec.  49 456 

Easton  v.  State,  39  Ala.  551. .  459 
Ex    parte    Geisler,    Cr.    Court 

Unites  N.   D.   Tex.  50   Fed. 

411    447 

Ex  parte  Smith,  135  Mo.  223, 

36   S.   W.   628,  58   A.  S.  R. 

505    365 

Ex    parte    Parker,    74    S.    C, 

466,  55  S.  E,  122,  114  A.  S. 

R.  1011,  7  Ann.  Cas.  874.  .  .  450 
Ex  parte  Adams,  25  Miss.  833 .  455 
Ex   parte   Robetson,    19   Wall. 

505    455 

Ex  parte  Rowe,  7  Cal.  175...  455 
Ex   parte   O 'Brian,   30    S.   W. 

(No.)     150     458 

Ex  parte  Clark,  126  Cal.  235, 

58  Pac.  546,  77  A.  S.  R. 

176  46  L.  R.  A 458 

Ex    parte    Adams,    25    Miss. 

883,  59  Am.  Dec.  234 458 

Ex  parte  Arnold,  128  Mo.  256, 

30  S.  W.  768,  49  A.  S.  E. 

557,  44  L.  R.  A.  386 458 

Ex  parte  Parks,  37  Tex.  App. 

590,  40  S.  W.  300,  66  A.  S. 

R.    835    458 

Ex    parte    Warfield,    40    Tex. 

App.    413,    50    S.    W.    933, 

76   A.   S.   R.   724 458 

Ex  parte  Thatcher,  2  Gilm,  170  459 
Ex  parte  Wray,  30  Miss.  673.  529 
Ex  parte  Adams,  25  Miss.  883 .  459 
Ex   parte   Robertson,   9   Wall. 

505    460 

Ex  parte  McGill,  6  Tex.  App. 

498    461 

Ex  parte   Kellog,   56   Vt.   511, 

461    461 

Ex    parte    Al    Men,    77    Cal. 

178    461 

Ex   parte   O 'Brian,   30   S.   W. 

(Mo.)     160     463 


TO   SECTIONS] 

Ex    parte    Kirby,    34    S.    W. 

(Tex.)    635    4G3 

Ex  parte  Burford,   1   Cranch., 

456    463 

Ex    parte    Hickey,    4    Smede., 

and    N,    783 464 

Ex  parte  Gould,  99  Cal.  360.  .  465 
Ex   parte   Barry,   85  Cal.   603, 

25  P.  256,  20  A.  S.  R.  248.      466 
Ex  parte  Turner,  3  Mont.,  D. 

&    D.    523 466 

Ex    parte    Ah    Men,    77    Cal. 

198    469 

Ex    parte    Fau    Gen    You,    19 

P.    (Cal.)    500 469 

Ex  parte  Mylius,  6  W.  Va.  406, 

45     S.     E.     602,     11     Ann. 

Cas.   812    469 

Ex    parte     Looper,     61     Tex. 

App.    129,    134    S.    W.    345, 

Ann.   Cas.   1913B.   32 470 

Ex  parte  Robertson,  19  Wall., 

505    470 

Ex  parte  Kearney,  7  Wh.  38. .  470 
Ex   parte  Robinson,    19   Wall. 

505    472 

Ex    parte    Ward,    173    U.    S. 

452    661 

Ex  parte  Briggs,  2  Woods,  428  664 
Ex  i^arte  Ritteuhousc,  4  N.  J. 

L.    230    683 

Ex  parte   Sundstrom,   25   Tex. 

App,  133    718a 

Ex   parte   Wilson,    114  .U.    S. 

417,  id.,  4  Am.  Cr.  Rep.  283 .      447 
Evans  v.  State,  13  Tex.  App. 

225    355 

Estes  V,  Carter,  10  la.  400 419 

Elkins  V.  People,  28  N.  Y.  177  421 
Elsey  V.  State,  47  Ark.  572..  421 
Egleston  v.  State,  129  Ala.  80, 

30     So.     582 479 

Egleston  v.  State,  129  Ala.  80, 

30  So.  582,   87   A.  S.   R.   37 

and  note 490 

Easton  v.  State,  36  Miss.  593.     493 


1340 


Table  of  Cases 


[refi:rences  are 
F 

Falcon  v.  Campbell,  2  McLeon, 

195    21 

Ft.  Leavensworth  v.  Lowe,  114 

U.    S.,    525 88 

Florensville   v.    State,   91   Ala. 

39    117 

Felton    V.    U.    S.,    96    W.    S. 

699,  24    (L.  ed.)    875 160 

Fisher   v.   Com.,   1   Bush,   Ky., 

211,  89  Amer.  Dec.  620....      209 
Franklin  v.  State,  85  Ga.  470, 

11  S.  E.  876 232 

Forbes  v.  Foot,  13  Amer.  Dec. 

732    248 

Fletcher  v.  State,  12  Ark.,  169  272a 
Frank  v.  State,  39  Miss.  705. .     279 
Fuller  V.   State,   122   Ala.   32, 
26    So.    146,    82    A.    S.    R. 

17    303 

Farrar  v.  State,  29  Tex.  App. 

250,  Id.  15  S.  W.  717 346 

Ford    V.    Skinner,    4    C.    &    P. 

239    348 

Fink    V.    Thomas,   60    W.    Va. 
187,  66   S.  E.   650,   19  Ann. 

Cas.    571    360 

Finey  v.  State,  3   Head.,  544, 
1    East   P.    C.    470,    11    Me. 

391     393 

Furguson    v.    State,    52    Neb. 
432,  72  N.  W.  590,  66  A.  S. 

R.    512 411 

Forsythe  v.»  State,  6  Ohio   St. 

19    414 

Franklin  Union  No.  41  v. 
People,  220  111.  77  N.  E. 
176,  110,  A.  S.  R.  248,  4 
L.  R.  A.  (N.  S.)  1001....  418 
Ferguson  v.  State,  134  Ala. 
63,  32  So.  760,  92  A.  S.  R. 

17    443 

Fox   V.   State,   Ohio,   46   U.   S. 

410,  12  U.  S.  L.  ed.  213.. . .     447 
P'irst  Congregational  Church  v. 
Muscatine,  2  la.  69 455 


TO   SECTIONS] 

Froid  V.  State,  7  Tex.  215 459 

Farnham  v.  Coleman,  19  S. 
Dak.  342,  103  N.  W.  161, 
117     A.     S.     R.     944,     and 

note    953    462 

Fulton  V.  State,  13  Ark.  168 .  .     479 
Fitzgerald  v.  State,  (N.  J.  L.) 

14    Atl.    746 491 

Foote  V.  People,  17  Hun.   (N. 

Y.)     218     499 

Foute  V.  State,  15  Lea  715.  .  .      523 
Farris  v.  Com.,  14  Bush  362.  .      542 
Fouts  V.  State,  8  Ohio  St.  98 . .     542 
Farrar  v.  State,  29  Tex.  App. 
250,  15  S.  W.  719,  545....      545 

Fredo  v.  State,  127  Tenn 547 

Fleetwood  v.  Com.,  80  Ky.   1, 

4  Am.  Cr.   Rep.   36 549 

Fitzgerald   v.    State,   112   Ala. 

34,  20  So.  966 552 

Field  V.  State,  47  Ala.  603..     557 

Fisher  v.  Bridges,  4  Blacf 548 

Frederick    Fox    Resp.    v.    Hu- 
mane  Society,  51   L.   R.   A. 

681    574 

Felter  v.  State,  9  Yerg.  398.  .  588 
Floyd  V.  State,  12  Ark.  43.  .  .  .  621 
Floyd  V.  State,  12  Ark.  43..  624 
Ferfoot  v.   Com.,  89  Ky.  174, 

12    S.    W.    189 663 

Fitzgerald    v.    State,    20    Tex. 

App.   280 687 

Fitzgerald    v.    State,    20    Tex. 

App.  281 692a 

Foster  v.  Com.,  96  Va.  306,  70 

A.  S.  R.  846,  31  S.  E.  22..      688 
Flood  V.   State,   19   Tex.   App. 

584    718a 

Ford   V.   State,    112    Ind.    373, 

14    N.    E.    241 443 


G 


(Jagp    V.    Sheldon,   3    i?ich.    (S. 

C.)    242    

Gibson  v.  State,  54  Md.  447.  . 
Garrett  v.  State,  109  Ind.  527. 


340 
340 
343 


Table  of  Cases 


1341 


[references  are 
Goldnamer  v.  O'Brien,  98  Ky. 

569,    33    S.    W.    831,    56    A. 

S.  R.  378,  36  L.  R.  A.  715.  .      353 
Gut  V.  State  of  Minnesota,  9 

Wall.  35 14 

Goodman    v.   Winter,    64    Ala. 

410    78 

Grignon  v.  Aston,  2  Wall.  342  79 
Grimmett    v.    Asken,    48    Ark. 

151    79 

Gibson  v.  Temple,  62  Tex.  555  89 
Green    v.  State,    66    Ala.    40, 

41  Amer,  Rep.  744 97 

Garner  v.   State,  28   F.  L.   A. 

113,  29  A.  S.  R.  232,  9  So. 

845    117 

Guiteg   V.    State,    66    Ind.    94, 

32   Am.   Rep.   99 124 

Grays  v.  State,  16  Vroom,  347, 

46  Amer.  Rep.  778 124 

Godfrey  v.  State,  31  Ala.  323, 

70  Am,  Dec.  194 124 

Gonzales    v.     State,    30     Tex. 

App.  203,  16  S.  W.  973 124 

Gamer  v.  State,  28  Fla.   113, 

9  So.  835,  29  A.  S.  R.  232     170 
Grafton  v.   U.    S.,   206   U.    S. 

333,   41    (L.    ed.)    1084,    11 

Ann.    Cas.    640 202 

Gannon    v.    People,    127    111. 

507,    11    A.    S.    R.    147,    21 

N.   E.   525 215 

Girard  v.  People,  3  111.  362..  232 
Guiteg  V.  State,  63  Ind.  278.  .  242 
Greeley  v.  State,  60  la.  141 . .  244 
Goldstein   v.    State,  82   N.   Y. 

231    250 

Garcia  v.   State,  26  Tex.  209, 

82  Amer.  Dec.  605 256 

Gilland  v.  State,  24  Tex.  App. 

524    263 

Gore  V.   People,    162   111.   259, 

44    N.    E.    500 272 

Grossman  v.  Oakland,  30  Ore. 

476,  60  A.  S.  R.  832,  41  P.  5.  2?2a 


TO   SECTIONS] 

Grun  V.  State,  151  Ala.  141, 
44  So.  194,  125  A.  S.  R. 
17,  15  Am.  Cas.  81 628 

Groton  v.  Gilden,  84  Me.  589, 
24  Atl.  1008,  30  A.  S.  R.  iVA.      .{53 

Gennan  V.  State,  42  Tex.  245.  .      359 

Gray  v.  State,  63  Ala.  66 364 

Graham  v.  People,  181  111.  477, 
55  N.  E.  170,  47  L.  R.  A. 
731    364 

Graves  v.  State,  116  Ga.  576, 
42  S.  E.  755,  59  L.  R.  A. 
598    365 

Gohogan  v.  People,  1  Parker 
Or.  Cas.  378 393 

Gaddie  v.  Com.,  117  Ky.  468, 
78  S.  W.  162,  111  A.  S.  R. 
259    415 

Gray  v.  Building  Trades  Coun- 
cil 91  Minn.  171,  97  N.  W. 
663,  103  A.  S.  R.  and  note 
P.    479    &    499 427 

Garland  v.  State,  112  Md.  83, 
75  Atl.  631,  21  Ann.  Cas. 
28 429 

Gunther  V.  Aston,  B.  Mon.  12 .     431 

Gray  v.  Building  Trades  Coun- 
cil 91  Minn.  171,  97  N.  W. 
663,  1118,  103  A.  S.  R.  477, 
see  note  this  last  author- 
ity Subd.   Ill  p.   495 432 

Gregory  v.  State,  20  Am.  Rep. 
774,  26   Ohio  St.  510 513 

Gongales  v.  State,  30  Tex.  203, 
16    S.    W.    978 534 

Gonzallis  v.  State,  16  S.  W. 
12  Tex.  App.    15 541 

Groom  v.  State,  85  Ga.  718, 
21    A.   S.   R.   179 551 

Granger  v.  State,  5  Bearg  459.     556 

Gongales  v.  State,  30  Tex. 
App.    203     556 

George  v.  State,  145  Ala.  41, 
40  So.  961,  117  A.  S.  R.  17.     557 

Gonzales  v.  State,  30  Tex. 
App.  203,  16  S.  W.  978 558 

Gresher  v.  People,  53  111.  295.      559 


1342 


Table  of  Cases 


[rkferexces  ake 
Gray  v.  Coombs,  7  J.  J.  Mar- 
shall  1   Hor.   &   Thomp.   Cr. 

Def.   891    567 

Guthrie  v.  Jones,  108  Mass. 

191  572 

Grun  V,  State,  151  Ala.  14, 

44  So.  194,  125  A.  S.  R. 

17,  15  Ann.  Gas.  81 628 

Gartner  v.  State,  16  Tex. 

App.  215  669 

Garland  v.  State,  112  Md.  83, 

75  Atl.  631,  21  Ann.  Gas.  28 

and  note 435 

Glass  V.   State.   45   Tex.   App. 

605,  78  S.  W.  1058 445 

Gompers    v.    Buck    Stove    Co., 

221    U.    S.    418,    55    (Led.) 

797,   34   L.    E.    A.    (N.    S.) 

874    449 

Gates    V.    McDonald,    3    Post 

356    455 

Gallord    v.    Gallord,    44    Ctil. 

475    460 

Goodhart  v.  State,  84  Com.,  60 

78     Atl.     853,     Ann.     Cas. 

1912B,    1297 462 

Globe  News  Paper  Co.  v.  Com., 

188  Mass.  449,  74  N.  E.  682, 

3   Ann.   Cas.   761 466 

Givson  V.  Hutchindon  148  La. 

139,    126   N.   W.   790,   Ann. 

Cas.  1912B,  1007 470 

Gardner  v.  People,  62  N.  Y. 

299  477 

Gravatt  v.  State,  25  Ohio  St. 

162    487 

Gordon  v.  Com.,  100  Va.  825, 

41   S.  E.   746,   57  L.   R.  A. 

744    507 

Gilman  v.  State,  31  Am.  Rep. 

257,   69   Me.    163 509 

Garc  V.  State,  119  Ga.  418, 

46  S.  E.  671,  ino  A.  S.  R. 

182  685 

Gordon   v.   State,  93   Ga.   531, 

44   A.   S.  R.   189,   21    S.   E. 

54    688 


TO   SECTIONS] 

Glover  v.  Com.,  86  Va.  382.  .  .      689 
Garrity  v.  State,  70  111.  83 .  .  .      699 
Grover  v.  State,  170  Ind.  450, 
101  N.  E.  620,  45  L.  R.  A., 

N.    S.   473 707a 

Gaines  v.   State,  40   Am.   Rep. 
64    713 

H 

Hopp  V.  U.  S.,  110  U.  S.  574.  14 
Holder  v.  State  of  Minn.,  137 

U.    S.    483 14 

Huston  V.  Moore,  5  Wh.  1 .  .  .  .  43 
Hamilton   v.    Dillon,   21   Wall. 

73    43 

Horn    V.    State,    4    Tex.    App. 

45    70 

Harland  v.  Ter.,  3  Wash.  131.  70 
Hamilton  v.  State,  11  Ohio  St. 

435    97 

Holmes  v.  Barclay,  4  L.  R.  A. 

63    98 

Hath  way  v.  State  (Tex.  App.), 

36  S.  W.  465 99 

Hatfield  v.  Com.   (Ky.),  12  S. 

W.  309   100 

Ilovey    V.    Chase,    52    Me.    83, 

Am.  Dee.  514 103 

Hopp   V.    People,    31    111.    385, 

83  Am.  Dec.  231 UUi 

Hawe  V.   State,   11   Neb.   537, 

38  Am.  Rep.  375 U)6 

Hall    V.    Com.,    155    Ky.    541, 

159    S.    W.    1155 110 

Howard  v.  State,  172  Ala.  402, 

55  So.  255,  34  L.  R.  A.   (N. 

S.)  990  121 

Hard  v.  People,  25  Mich.  405.  167 
Hopan  v.  State,  36  Wis.  226.  169 
Hudson  V.  State,  61  Ala.  333.  172 
Hinkle  V.  State,  127  Ind.  490, 

26  N.  E.  777 180 

Howe  V.  State.  11  Neb.  537..  244 
Hunt   V.   Com.,    13    Grat.    557, 

70  Am.  Dec.  423 246 

Higpena    v.    People,    135    111. 

243.    25    A.    S.    R.    357 247 


Table  of  Cases 


134o 


[rkferences  ark 
Hardy    v.    Folley,    121    Mass. 

259    250 

nines  v.  State,  35  N.  H.  207. .     250 
High   V.    State,   26   Tex.   App. 

545,  8  A.  S.  E.   448 

Hunt   V.    Com.,    18   Grat.    757, 

70  Am.  Dec.  443 256 

Iless  V.  Culver,  77  Mich.  598, 

43   N.  W.   994,   18  A.  S.  E. 

421,  6  L.  E.  A.  498 257 

Ilallett  V.  Alexander,  50  Colo. 

37,    114    p.    490,    Ann.    Cas. 

1912  B    1277    257 

Hyde   V.   State,   234   Mo.    200, 

136    S.    W.    316,    Ann.    Cas. 

1912  B  191 260 

Hardin  v.   State,  4  Tex.  App. 

335    263 

Holt  V.  U.  S.,  110  U.  S.  574.  .      271 
Henderson   v.    State,    60    Ind. 

276    272a 

Hamilton  v.   People,  29  Mich. 

173,  20  Am.  Dec.  534 281 

TIendrickson  v.   People,   10  N. 

Y.  13,  61  Am.  Dec.  721 289 

Hawkins  v.  State,  58  Am.  Dec. 

517,   13    Ga.   322 334 

Hooskins  v.  State,  13  Ga.  322, 

58  Am.  Dec.  517 337 

Hagerty  v.  People,  46  Cal.  354     344 
Hamilton  v.  State,  36  Ind.  280, 

10  Am.  Eep.  22 350 

Hanley    v.    State,    47    S.    W. 

Eep.   375    (Tex.) 350 

Hill  V.  State,  36  Ga.  578 351 

Hickey  v.  United   States,   168 

Fed.  536,  93   C.  C.  A.  516, 

22  L.  E.  A.  (N.  S.)  728....      356 
Hicks  V.  Com.,  86  Va.  223,  S. 

E.  1024,  19  A.  S.  E.  891 364 

Hicks  V.  Com.,  86  Va.  23 365 

Hicks  V.  Com.,  96  Va.  223 367 

House   V.   State,  9   Tex.   App. 

53,    66    373 

Hicks  V.  Com.,  96  Va.  223 373 

Hall  V.  State,  9  Fla.  203 374 

Hamilton  v.  State,  36  Ind.  280     377 


TO   sections] 

Hinkle  v.  State,  32  Ind.  220.  .  377 
Hicks  V.  Com.,   86  Va.   223,  9 

S.  E.  1024,  19  A.  S.  E.  891.      378 
Halbrook    v.    State,    34    Ark. 

511,  36  Am.  Eep 388 

Hiler  v.   People,   156  111.  514, 

41  N.  E.  181,  47  A.  S.  E.  221     389 
Honeker  v.   Board   of   Educa- 
tion, 42  W.  Va.   170,   24  S. 

E.    544,    57    A.    S.    E.    847, 

32  L.   E.   A.  413 407 

Hild  V.  State,  67  Ala.  69 414 

Harris  v.  People,  44  Mich.  305.  408 
Hollister  v.  Com.,  60  Pa.  St. 

103 409 

Hahn  v.  State,  83  N.  W.  674. .  409 
Hollister  v.   Com.,  60  Pa.   St. 

103    417 

Heina  v.  Com.,  91  Pa.  St.  145.  420 
Hoyt  V.  People,   140  111.   588, 

30  N.  E.   315,   16  L.   E.   A. 

239    421 

Harris  v.   Com.,   113   Va.   746, 

73   S.  E.  561,  38  L.  E.  A. 

(N.   S.)    458 422 

Hall  V.  Eaton,  25  Vt.  458 425 

Heine  v.  Com.,  91  Pa.  St.  145.  425 
Heap  V.  Dunham.  95  111.  583.  .  426 
Hooker    v.    Vande    Water,    4 

Denio   349    433 

Hazen  v.  Com.,  23  Pa.  St.  355.  436 
Hanna  v.  People,  86  III.  243.  .  439 
Ha  11a  n    v.     People,     1     Doug. 

(Mich.)    207    447 

Hale    V.    State,    55    Ohio    St. 

210,  45  N.  E.  199;   60  A.  S. 

E.  691,  36  L.  E.  A.  254....      452 
Hill  V.  Crandall,  52  111.  70. .  .     459 
Haight  V.  Lucia,  36  Wis.  355. .     462 
Hurley    v.    Com.,     188    Mass. 
443,  74  N.  E.   677,  3   Ann. 

Cas.   757.  and  note 463 

Harris  v.  State,  35  Ark.  418.     463 

Henry  v.  Ellis,  49  la.  205 467 

Hunter  v.  State,  6  Ind.  423..      470 


1344 


Table  of  Cases 


[references  are 

Hale    V.    State,    55    Ohio    St. 

210,  45  N.  E.  199,  60  A.  S. 

E.  691,  36  L.  R.  A.  254 472 

Herrj-ton  v.  State,  103  Ga.  318, 

29  S.  E.  931,  68  A.  S.  R.  95.  475 
Hutchinson  v.  Com.,  82  Pa.  St. 

472    487 

Hoyt  V.  State,  50  Ga.  313.  ..  .  491 
Horton  v.    State,   85   Ohio   St. 

13,  96  N.  E.  797,  Ann.  Gas. 

1913  B   90    495 

Hendricks    v.    State,    26    Tex. 

App.  176,   ..8  A.  S.  R.  466. 

9  S.  W.  555,  8  Am.  Cr.  Rep. 

276    507 

Hunt  V.  Adams,  6  Mass.  519.  .  507 
Hooper  v.  State,  30  Tex.  App. 

412    508 

Hill  V.  State,  1  Yerg.  75 511 

Hennesy  v.  State,  23  Tex.  App. 

157,  5  S.  W.  789 512 

Harrington  v.   State,  54  Miss. 

490    522 

Horton  v.  State,  53  Ala.  468.  .  522 
Heathon    v.    State,    2    Hayw. 

Conn.  1  Root  296 525 

Ham    V.    State,    4    Tex.    App. 

645    525 

Head    v.    State    9    Medc.    104, 

3  Greel  Redf.  Ed.  147 431 

Hays  V.  State,  23  Mo.  287 534 

Hendrickson   v.    Com.,   85   Ky. 

281,  3  S.  W.  166,  7  A.  S.  R. 

.596    537 

Hicks  V.  State,  6  So.  441,  25 

Fla.    535    541 

Hcnton  v.  State,  24  Tex.  454.      545 

Hill  V.  State,  Tex.  App.  2 545 

Hill  V.  State,  5  Tex.  App.  2.  .  547 
Hinton  v.  State,  24  Tex.  454.  .  548 
Harrison  v.  State,  24  Ala.  67, 

60    Am.    Dec.    450,    17    Law 

Times  222    548 

Haywood  v.  State,  41  Ark.  479  573 
Head  v.  Martin,  85  Ky.  480 .  .      550 


TO   SECTIONS] 

Hawkins  v.   Com.,  14  B.  Mon. 

(Ky.)  395,  61  Am.  Dec.  158.  551 
Humphries    v.    State    25    Tex. 

App.   126    556 

Harrison  v.  State  24  Ala.  67.  .  557 
Huddleton    v.    State,    54    Tex. 

App.  93,  112  S.  W.  64,  130 

A.  S.  R.  875 557 

Harris  v.  State,  24  Ala.  67 .  .  .      560 

Hall  V.  State,  9  Fla.  203 569 

House  V.  State,  19  Tex.  App. 

277    570 

Harris  v.  State,  22  Tex.  App. 

670,    3    S.    W.    477 570 

Hargcr  v.   State,  4  Tex.  App. 

26    571 

Haskin.   v.    Terrance,    35    Am. 

Dec.  129,  5  Blackf.  417 571 

Harness  v.  State,  27  Ind.  425  574 
Haggerton   v.   Witner   86    Me. 

293,  37  Atl.  965,  39  L.  R.  A. 

649    574 

House   V.   State    19   Tex.   App. 

227    577 

Hunt  V.  Com.,  13  Gratt  (Va.) 

757,    70    Am.    Dec.    443 581 

Hesken  v.  State,  18  Tex.  App. 

275    583 

Harris  v.   State   29   Tex.  App. 

101,  14  S.  W.  390,  25  A.  S. 

R.   717    586 

Hernandes    v.    State,    20    Tex. 

App.   151    587 

Hatchet  v.  Com.,  75  Va.  925.  .  596 
High   V.    State,   20    Tex.    App. 

545,   10  S.  W.  238.  8   A.  S. 

K.   488    628 

Howard  v.  State,  121   Ala.  23, 

25   So.    1000 674 

Hagernian  v.  State,  47  la.  151.  687 
Iloahnan  v.  Com.,  84  Ky.  457, 

4   A.   S.   R.   207 688 

Hope  V.   People,  38   Am.   Rep. 

400,   83    N.   Y.    418 699 

Hanson   v.    State    43    Ohio   St. 

376    699 


Table  of  Cases 


1345 


[references  arf.  to  sections] 


Hill  V.   state  53  Ga.   126 701 

Heliums     v.     Abercombre,     40 

Am.  Rep.  684,  15  S.  C.  110.  719 

Hendhouser  v.  U.  S.  Ileish  702  459 


Trwin  v.  Com.,  3  Bush,   (Ky.) 

181    

In     re     Dobson,     25     P.     442 

(Mont.)    

In    re    Stevens,    52    Kan.    56, 

34  P.  459  

In  re  Davidson,  27  Fed.  618. 
In  re  Grain,  84  Fed.  788... 
In  re  Nagle,  135  U.  S.   1,  34 

(L.    ed.)    55 

In  re  McVey,  23  Fed.  878 

In  re  White,  17  Fed.  685 

International  E.  Ry.,  co.  Bled- 
soe, 40   Tex.   527 

In    re    Asher,    130    Mich.    540, 

90  N.  W.  418,  57  L.  E.  A. 

806    

Isaacs  V.  State,  48  Miss.  234.  . 
In  re  Fanton  55  Neb.  703,  55 

N.    W.    447,    70    A.    S.    R. 

418    

In  re  Barry,  4  Cal.  562 

In    re    Chadwick,    67    N.    W. 

1074    

In   re   Simms  54  Kans.   1,  25 

L.    R.    A.    110 

In  re  Murphey  39  Wis.  286.  . 
In  re  Tully  20  Fed.  Rep.  812.  . 
In  re  Tully  20  Fed  Rep.  812.  . 
In  re  Morris  39  Kan.  28,  18  P. 

171,    7    A.    S.    R.    512,    and 

note     

In    re    Williamson    26,    Pa.    St. 

9    67,    Am.    Dec.    374,    and 

note     456 

In  re  Coper,  32  Vt.  258 467 

In  re  Clark,  208,  Mo.  121, 

106  S.  W.  990,  15  L.  R. 

A.  389  469 

0.  L.— 85 


16 
16 

35 

47 
48 

49 
50 
50 

89 


224 
420 


458 
459 

464 

464 
465 
509 
512 


456 


Iowa — State  v.  Roth,  17  Iowa 

336  327 

In  Re  Judson,  3  Blackl.  C.  C. 

148   469 

Independent    v.    Truevalle,    15 

Kans.  70 574 

Irwin   V.    State,    9    Tex.    App. 

66    689 


Johnson  v.  State,  28  Tex.  App. 

562     

Jenkins  v.  State,  28  Tex.  App. 

86    

Jackson   v.  King,   4  Cow.    (N. 

Y.)  207,  15  Am.  Dec.  354.. 
Jamison    v.    People,    145    111. 

357,  34  N.  E.  486 

Jenkins    v.    State,    18    S.     E. 

(Ga.)    992    

Johnson  v.  State,  27  Tex.  App. 

188    

Jackson  v.  State,  81  Ala.  33.. 
Johnson  v.  State,  65  Ind.  204. 
Jones  V.  State,  66   Miss.   380, 

6  So.  231,  14  A.  S.  R.  570. 
Johnson  v.  State,  19  Tex.  App. 

453,  53  Am.  Rep.  385 

Jones  V.  State,  13  Tex.  168,  62 

Am.  Dec.  209 

Johnson  v.   State,   1   Okla.   Cr. 

321,    97    P.    1059,    12    Ann. 

Cas.  300   

Jones  V.  State,  55  Ga.  625... 
Jones  V.  Com.,  86  Va.  740,  10 

N.  E.  1001 

Jourdan  v.  State,  79  Ala.  9. .  . 
Johnson  v.  State,  59  La.  37.. 
Johnson  v.  State,  20  Tex.  App. 

28   

Johnson    v.    State,    107    Miss. 

196,  65  So.  218,  51  A.  L.  R. 

N.   S.   183 

Johnson  v.  State,  18  Ga,  16.. 
Jonkin  v.  State,  53  Ga.  33,  21 

Am.  Rep.  255 


15 
15 

103 

107 

117 

125 
167 
172 

207 

208 

208 


226 
226 

232 
262 
271 

271 


275 
342 


345a 


1346 


Table  of  Cases 


[references  are 
Johnson  v.  State,  17  Tex.  515.     352 
Johnson  v.  State,  19  Tex.  App. 

545   356 

Jackson  v.  State,  91  Ala.  55, 

8  So.  773,  24  A.  S.  E.  860..  365 
Johnson  v.  Com.,  86  Ky.  122,  5 

S.  W.  365,  9  A.  S.  R.  269..  397 
Johnson  v.  Com.,  86  Ky.  122, 

5  S.  W.  365,  9  A.  S.  R.  269.  398 

Jones  V.  State,  67  Ala.  84 398 

Johnson  v.  Com.,  86  Ky.  122, 

9  A.  S.  R.  269 399 

Johnson  v.  State,  3  Tex.  App. 

590  412 

Johnson  v.  Com.,  27  Am.  Eep. 

622  413 

Johnson  v.  State,  36  N.  J.  L. 

313  419 

Johnson  v.  State,  3  Tex.  App. 

590  420 

Johnson  v.  State,  3  Tex.  App. 

590   429 

Jenna  v.  Joslin,  41  Vt.  478. .  .  442 
Jenkin  v.  State,  89  Ala.   115, 

8  So.  23,  18  A.  S.  R.  91 443 

Johnson  v.  Com.,  5  Bush  431 .  .  479 
Johnson  v.  State,  9  Baxter  279.  490 
Johnson  V.  State,  36  Ark.  242.  490 
Jones  V.  State,  97  Ga.  430,  25 

S.  E.  319,  54  A.  S.  R.  383..  497 
Jackson  v.  People,  126  111.  139, 

18  N.  E.  286 499 

Johnson  v.  State,  41  Tex.  65. .     500 

John  V.  State,  23  Wis.  504 516 

Johnson  v.  State,  66  Ohio  St. 

50,  63  N.  E.  607,  90  A.  S.  R. 

561  and  note 530 

Johnson  v.  State,  30  Tex.  App. 

748   543 

Jenkins  v.  State,  41  Tex.  128. .  541 
Jackson  V.  State,  66  Misa.  95.  .  550 
Johnson  v.  State,  94  Ala.  35, 

10  So.  667 552 

Jackson     v.     State,     Ilor.     & 

Thorn.,  S.  D.,   476 556 

Jackson  v.  State,  11   Ohio  St. 

195   571 


TO    SECTIONS] 

Jarechi  v.   Philharmonic   Soci- 
ety, 21  Am.  Rep.  78,  79  Pa. 

St.  403    572 

Jardon  v.  State,  56  Ga.  92 596 

James  v.  Com.,  12  S.  &  R.  236.  640 
Jones  V.  State,  18  Tex.  App. 

485  689 

Jackson  v.  State,  69  Ala.  249.  698 
Johns  V.  State,  78  Ind.  332, 
41  Am.  Rep.  557n 721 

K 

Knight  V.  State,  107  U.  S.  232       14 

Kerr  v.  111.,  119  U.  S.  436 70 

Kerr  v.  People,  110  111.  627.  .  .  70 
Kruse  v.  Wilson,  79  111.  233..  86 
Kearney  v.  State,  68  Miss.  233  110 
Kennon  v.  Com.,  84  Am.  Dec. 

414   117 

King    V.    State,    9    Tex.    App. 

515   121 

Knapp  V.  Com.,  10  Pick  478.  .  192 
Knuckler    v.    People,    48    Cal. 

331    22;i 

Kohlheinier  v.  State,  39  Miss. 

548.  79  Am.  Dec.  689 212 

Kermeen  v.  State,  17  Ariz.  263, 

151  P.  738 279 

King  V.  State,  40  Ala.  314 282 

Kahoe  V.  Com.,  86  Pa.  St.  127.      286 
Kop    Cyoznski    v.    State,    137 
Wis.  358,  118  N.  W.  863,  16 

Ann.  Cas.  865 342 

Kunkle  v.  State,  32  Ind.  220.  347 
Klccn  V.  Stub,  9  Ind.  App.  365, 

53  A.  S.  R.  354 351 

Kerby  v.  State,  5  Tex.  App. 
60,  Ilor.  &  Thom.  Cr.  De- 
fenses 719  355 

Kelly  V.  Com.,  1  Gratt  15 366 

Kink  V.  State,  65  Ga.  159 388 

Klieforth  v.  State,  88  Wis. 
163,    43    A.    S.   R.    875   and 

note    417 

Knight  V.  Miller,  772  Ind.  27, 
87  N.  E.  523,  18  Ann.  Cas. 
1146   418 


Table  of  Cases 


1347 


[rkferences  are 
King  V.  Gill,  2  Barn  and  Old 

204   420 

King  V.  Turner,  13  East  231..  424 
King    V.    Armstrong,    1    Vent 

304    426 

Knowles  v.  Peck,  42  Conn.  386, 

19  Am.  Eep.  542 429 

King  V.    Sharp,   3    Cox   C.   C. 

288   441 

Kilburn  v.   Thompson,  103  U. 

S.  163,  26  U.  S.  (Fed.)  377.      450 
Karel  v.  Conlan,  155  Wis.  221, 

144  N.  W.  266,  49  L.  R.  A. 

(N.   S.)    826 459 

Kileot  V.   Sharp,  52  N.   J.  L. 

154   466 

Kerr  v.  People,  110  111.  630.  . .  479 
Kerr  v.  People,  110  111.  630..  481 
Kranse    v.    Com.,    93    Pa.    St. 

418    487 

Kegg  V.  State,  10  Ohio  St.  75.  508 
King   V.    State,   27    Tex.    App. 

569 521 

King  V.  State,  89  Ala.  43 549 

Kelly  V.  State,  27   Tex.  App. 

502   556 

Kemp  V.  State,  13  Tex.  App. 

561   556 

Kemp  V.   State,  12  Tex,   App. 

561   558 

King  V.  Hayes,  80  Me.  206,  13 

Atl.  882   574 

King  V.  Patterson,  49  N.  J.  L. 

417,  60  Am.  Eep.  622 610 

Kitchens  v.  State,  80  Ga.  812.  630 
King  V.  People.  83  N.  Y.  587.  639 
Kerr  v.  U.  S.,  7  Ind.  Territory 

486,  104  S.  W.  809 705 

Kenyon   v.    People,   26   N.   Y. 

203,  84  Am.  Dec.  117 705 


Laughlin  v.  Com.,  12  Bush  261. 

Lybarger  v.  State,  2  Wash.  268 

Luther  v.  Borden,  7  How.  (U. 

S.)    51    


14 
16 

43 


TO   SECTIONS] 
Le  Frost  v.  Tillman,  117  Mass. 

109   98 

Landcaster  v.  Moore,  78  P.  St. 

409,  21  Am.  Rep.  24 103 

Leech    v.    State,    2    Tex.    App. 
279,   3   S.   W.    539,   58    Am. 

Rep.   638    108 

Lowe  V.  State,  118  Wis.   641, 

96  N.  W.  417 113 

Leeper  v.  State,  29  Tex.  App. 

63,  14  S.  W.  398 117 

Latimer  v.  State,  55  Neb.  609, 
76  N.  W.  207,  70   A.   S.  R. 

403    155 

Levine  v.  Com.   (Ky.),  117  S. 

W.,   253    158 

Lovett  V.   State,  30   Fla.   142, 

11  So.  550,  17  L.  R.  A.  705.      167 
Long   V.    State,    127   Ga.    350, 

56  S.  E.  444 167 

Lewis  V.  State,  72  Ga.  164,  53 

Am.  Rep.  835 167 

Lenard  v.  People,  114  N.  Y. 

371,  11  A.  S.  R.  667 189 

Lopez  V.  State,  34  Tex.  133. . .  189 
Lcdbeter    v.     State,    21    Tex. 

App.  344,  17  S.  W.  437....      204 
Lee  V.   State,  26   Ark.   260,   7 

Am.  Rep.  611 211 

Loper  V.  State,  3  Miss.  429. .  .  231 
Lowe  V.  Fouke,  103  111.  58...  249 
Leamon  v.  State,  18  Tex.  App. 

194,  51  Am.  Rep.  298 256 

Lewis  V.  State,  96  Ala.  6,  36 

A.  S.  E.  75,  11  So.  259 262 

Logan  V.  State,   17  Tex.  App. 

50   269 

Laros  v.  Com.,  84  Pa.  St.  200  283 
Loggins  V.  State,  8  Tex.  App. 

434   286 

Lindsey  v.  State,  66  Fla.  341, 
63  So.  832,  5  L.  R.  A.  (N. 
S.)  107,  Ann.  Cas.,  1916  0, 

1167  291 

Lowridge  v.  State,  6  Mo.  594 .      596 
Lewis  V.   State,  15  Tex.  App. 
647   532 


1348 


Table  of  Cases 


[references  are 
Ludden    v.    State    (Neb.),    48 

N.  W.  61 469 

Lvmon  v.  People,  198  111.  514, 

64  N.  E.  974 329 

Luke  V.  State,  49  Ala.  30 344 

Lawson  v.  State,  30  Ala.  14,  1 

East  P.  C.  406 346 

Lawson  v.  State,  30  Ala.  14..  349 
Lee  V.  Woolsey,  19  Johns  (N. 

Y.)  319,  10  Am.  Dec.  230..  349 
Long  V.  Rodgers,  17  Ala.  540.  352 
Long  V.  People,  102  111.  331..  356 
Landrigan    v.    State,    31    Ark. 

50,  25  Am.  Eep.  547 358 

Lander  v.  Seaver,  32  Vt.  114.  359 
Lonfield  v.  State,  34  Ark.  275.  374 
Lewis  V.  State,  35  Ala.  380,  28 

Am.  Dec.  416 375 

Lamb  v.  State,  66  Md.  285. . .  375 
Langley  v.  State,  30  Ala.  536.  393 
Loggins  V.  State,  8  Tex.  App. 

434,  442   423 

Landingham  v.  State,  49  Ind. 

136    436 

Lamb  v.  People,  96  111.  74 439 

Loggins  V.  State,  8  Tex.  App. 

443    443 

LockAvood  V.  State,  1  Ind.  161.  459 
Land  &  Water  Co.  v.  Superior 

Court  of  Fresno  Co.,  93  Cal. 

139   459 

Liming  v.  Barthom,  2  Bay  11.  462 
Lester  v.  People,  150  111.  408.  465 
Laggett  V.  Prideaux,  16  Mont. 

205,  50  A.  S.  R.  498 477 

Leanard  v.  State,  7  Tex.  App. 

418    481 

Leanard  v.  State,  7  Tex.  App. 

418   483 

Lesser  v.  People,  73  N.  Y.  78.  501 
Lefter  v.   State,   153   Ind.   82, 

54  N.  E.  439,  74  A.   S.  R. 

300,  45  L.  R.  A.  424 505 

Luttrcll    V.    State,    1    S.    W. 

(Tenn.)    886    515 

Lingo  V.  State,  29  C4a.  470.  .  .  534 
I>ang  V.  Stnte,  4  So.  Kf-p.  licr      541 


TO   SECTIONS] 

Landers  v.  State,  1  Tex.  462 . .  542 
Linch   V.   State    (Ala.),   6   So. 

551    545 

Lingo  V.  State,  29  Ga.  484...  548 
Lyons  v.  State,  22  Ga.  399 .. .  548 
Louge  V.  Com.,  2  Wright  Penn. 

261    555 

Lander  v.  State,  12  Tex.  App. 

462   557 

Lilly  V.  State,  20  Tex.  App.  1 .  560 
Lewer  v.  Com.,  15  S.  &  R.  93.  583 
Loomis  V.  People,  67  N.  Y.  322, 

23  Am.  Rep.  123 583 

Lopez  V.   State,   21   Tex.   App. 

780   590 

Laurance    v.    State,    1    Hump. 

231   595 

Lavina  v.  State,  63  Ga.  513...  621 
Lewis  V.  State,  30  Ala.  54,  68 

Am.  Dec.   113 685 

Lynn  v.  Com.  (Ky.),  13  S.  W. 

74  692a 

Long  V.  State,  12  Ga.  298  . .  693 
Lewis  V.  State,  36   Tex.   App. 

37,  61  A.  S.  R.  831 706 

Liberman    v.    State,    26    Neb. 

464   721 

M 
Mrous  V.  State,  31  Tex.  App. 

597   15 

Mano  V.   State,  25  Tex.   App. 

105    15 

Miller  v.  U.  S.,  11  Wall.  268.  43 
Mason  v.  U.  S.,  105  U.  S.  696.  51 
Mhone   v.    Justice,    121    U.    S. 

700,  8  Sup.  Ct.  Rep.  1204..       70 
Moore  v.  State,  Tex.  App.,  40 

S.   W.   287 28 

Miller    v.    State,    3    Wyo.    65, 

29  P.  136 110 

Mihcsker  v.  State  (Tex.  App.), 

182  S.  W.  1127 113 

Mayficld,  44  Tex.  59 114 

Montague    v.    People,    141    111. 

75,  30  N.   E.  337 125 

M.Dniiglc  V.  St.-itp,  88  Ind.  24     125 


Table  of  Cases 


13VJ 


[rkferen 
Montgomery  v.  Com.,  18  S.  W. 

475   

McCollem  v.  State,  96  Ala.  98, 

11   So.  408 

Morton  v.  State    (Tenn.),  209 

S.  W.  644,  4  L.  E.  A.  266.. 
Milbroth    v.    State,    138    Wis. 

354,  120  N.  W.  252 

Massie  v.  State,  18  S.  W.  720. 
McVey  v.  State,  57  Neb.  471, 

77  N.  W.  1111 

Miller  v.  People,  30  Mich.  16. 
McGahee  v.  State,  62  Miss.  772, 

52  Am.  Rep.  209 

Mason  v.  U.  S.,  105  U.  S.  696. 
Medis   V.   State,  27  Tex.   App. 

194,  11  A.  S.  R.  192,  11  S. 

W.  112   

Murphy  v.  State,  25  Nev.  807, 

41   N.   W.    792 

McCutcheon  v.  State,  179  Ind. 

13,  93  N.  E.  545 

Mahala    v.    State,    10    Yearg. 

532,  31  Am.  Dec.  591 

McFadden  v.  Com.,  23  Pa.  St. 

12,  42  Am.  Dec.  208 

McKee   v.    State,   1    Balily   L. 

251,  21  Am.  Dec.  499 

McQuinn    v.    State,    46    Neb. 

427,  65  N.  W.  46,  50  A.  S.  E. 

617   

Mapes  V.  State,  13  Tex.  App. 

85   

Mount  V.  Com.,  2  Duval  (Ky.) 

93    

Mann   v.    State,    124   Ga.    760, 

53  N.    E.    30,    4    L.    E.    A., 
N.  S.  934 

Montgomery    v.    Elevens     (U. 

S.),  1  Sawy.  666 

Mercer  v.  State,  17  Tex.  App. 

452  ^ 

Montgomery  v.  State,  80  Ind. 

338,  41  Am.  Rep.  815 

McKnight    v.    State,    6    Tex. 

App.  158    


CES    ARK   TO   SECTIONS] 

McKiney    v.    State,    134    Ala. 

128  134,  32  S.  O.   726 281 

Meyers  v.  State,  19  Ark.  156.     282 
128       Murphy  v.  State,  36  Ohio  St. 

528   285 

137       McKees   v.   People,    36   N.   Y. 

113    285 

141        Moore   v.    State,    6    Tex.   App. 

153  564   285 

Martin  v.  State,  25  Tex.  App. 

1^'^  557   286 

^^^       Morris  v.  State,  35  Tex.  App. 

313,  33  S.  W.  539 165 

1^^       Milliagn  v.  State,  25  Tex.  App. 
202  199^  7  s.  W.  664,  8  A.  S.  E. 

435   343 

McGray   v.   People,   45   N.   Y. 

153     345 

McDade    v.    People,    29    Mich. 

50   345 

Morgan  v.  State,  33  Ala.  413.  348 
McDade  v.  People,  29  Mich.  50  366 
Maher  v.  People,  10  Mich.  212, 

81  Am.  Dec.  781 374 

223       Maher  v.  People,  10  Mich.  212     385 
Martin   v.   State,   1   Tex.   App. 

223  ^25   411 

Martin  v.  State,  1  Tex.  App. 
525,   2   Euss   on   Crs.   9,   ed. 

223  Tit.   Burglary    412 

Mitchel  V,  State   (Tex.),  24  S. 

230  W.  280   416 

McNair  v.  State,  53  Ala.  453.     416 
232        McCourt   v.   People,   64  N.   Y. 

583    416 

Michaels  v.  State,  68  Wis.  416, 

243  60  Am.  Eep.  870 417 

Meffin   V.    Com.,   5   Watt   &   S. 

261  461   428 

Miles  V.  State,  58  Ala.  390. . .     428 
263       McDermot  v.  Com.,  123  Mass. 

441,  25  Am.  Rep.  120 443 

267        Matterson  v.  State,  3  Mo.  421.      447 

McCuUoch  V.  Maryland,  4  Wh. 
269  316   452 


1350 


Table  of  Cases 


[references  are 
Miskummins  v.  Shaver,  8  Wyo. 
392,  58  P.  411,  49  L.  E.  A. 

831    458 

McCurdie   v.    Senior,    4    Paige 

378   459 

Matter  v.  Watson,  2  Nelson,  69 

N.  Y.  536 462 

McCarmack  v.  Sheridan,  2  Op. 

Pac.  Utah  24,  26 467 

Mahoney    v.     State,    33     Ind. 
App.  655,  72  N.  E.  151,  104 

A.  S.  E.  276 472 

McElroy    v.    People,    202    111. 

473,  66  N.  E.  1058 489 

Maley  v.  State,  31  Ind.  92...     499 
McKinney    v.    State,    11    Ark. 

594   500 

Maley  v.  State,  31  Ind.  192..     501 
Mann  v.   People,   15    (N.  Y.) 

Hun.  155   509 

McPherson    v.    State,    22    Ga. 

487   530 

Mann  v.   State,   124   Ga.   760, 
53    S.    E.    324,   4   L.   E.    A. 

(N.   S.)    934    533 

Moynanhan   v.   State,    70    Ind. 

126,  36  Am.  Ecp.  178 541 

Maden  v.  State,  10  Kans.  356.     542 
Mayher    v.    People,    10    Mich. 

212,  81  Am.  Dec.  781 542 

Musick  V.  State,  21  Tex,  App. 

69   543 

Mahcr  v.  People,  10  Mich.  212, 

81  Am.  Dec.  781 545a 

Murphey  v.  State,  9  Colo.  435.     546 
Miller  v.  State,  31  Tex.  App. 
600,  21  S.  W.  925,  37  A.  S. 

E.  836    549 

Mary    Pctrie    v.    S.    H.    Cart- 
wright    (Ky.),  59  L.  E.   A. 

720   550 

McDanicl    v.    State,    47    Am. 

Dec.    93    551 

Morgan  v.  State,  51   Neb.  072, 

71  N.  W.  788 552 

McEcynalds    v.    State,    4    Tex. 
App.   327    556 


TO   SECTIONS] 

McPherson    v.    State,    22    Ga. 

478    560 

McNeil  V.  State,  102  Ala.  121, 
48  A.  S.  E.  17  and  note,  15 

So.  352   565 

McCullough   V.   State,   24   Tex. 

App.  125   569 

Martenz  v.  State,  16  Tex,  App. 

112   581 

Martin  v.  State,  5  S.  W.  859.  .      582 
McSay  v.  People,  6  Park  Cr. 

114   594 

Moody  V.  People,  20  111.  315. .  619 
Mitchell  V.  State,  12  Ark,  50.  621 
Mitchell  V.  State,  12  Ark.  50.  624 
Molett  V.  State,  49  Ala.  18...  630 
Moore  v.  State,  4  Chand.  170.  630 
McDonaugh  v.  State  (Tex.), 
84  S.  W.  594,  122  A.  S.  E. 

684   653 

Melford  v.   Teonton,  10  Okla. 
741,  63  P.  958,  54  L.  E.  A. 

513    660 

Maynard    v.    People,    135    111. 

416,  25  N.  E.  740 663 

Morford  v.  Territory  of  Okla., 

10  Okla.  741,  54  L.  E.  A...      663 
Martin  v.  Miller,  28  Am.  Dec. 

342,  4  Mo.  47 667 

Mackin  v.  People,  115  111,  312, 

56  Am.  Eep.  167 668 

Mcrhan  v.  State,  46  N.  J.   L. 

:i55    683 

Miller  v.   State,  23   Tex.   App. 

204   690 

More    V.    Bennet,    140    111.    69, 
33  A,  S,  E,  216 433 

N 

Norris   v.    State,    25    Ohio    St, 
217    99 

Newton   v.   State,   88   Ala.   23, 

9  So.  103 160 

Nye  V.  Peopfe,  35  Mich.  16.  .  .  109 

Ncoling   V.    Com.,    98    Pa.    St. 

323   170 

Neal  V.  State,  64  Ga.  275 230 


Table  or  Cases 


1351 


[rf.ferences  ark 
Noel  V.  State,  160  Ala.  25,  49 

So.  824   273 

Nicholson  v.  State,  28  Md.  140  279 
Nofsinger    v.    State,    8   Tex. 

App.   102    284 

Xolen  V.   State,   14  Tex.  App. 

474   284 

New  Hampshire  State  v.  Mar- 
vin, 35  N.  H.  22 327 

New  Jersey  State  v.  Lasli,  16 

N.  J.  L.  380,  32  Am.  Dec. 

397   327 

Nelms  V.  State,  84  Ga.  466,  20 

A.  S.  E.  377 399a 

Naurse  v.  State,  2  Tex.  App. 

304    595 

Nourse  v.  State,  2  Tex.  App. 

304  597 

Nelson  v.  State,  47  Miss.  621.  667 
Nicholds   V.   State,  32   N.   W. 

543    413 

National    Protective    Assn.    of 

Steamfitters  and  Helpers  v. 

Cummings,    170   N.    Y.   315, 

63  N.  E.  369,  88   A.   S.   R. 

648,  50  L.  R.  A.  135 431 

Neil  V.  State,  60  Ind.  308-10..  442 
Newton    v.    Lockland,    77    111. 

103   462 

Noakes    v.    People,    25    N.    Y. 

387   521 

Normals  v.  State,  26  Tex.  App. 

221,  9  S.  W.  606 547 

O 

Ober  V.  Gallaher,  93  U.  S.  199 .  84 
Ortwein  v.  Com,  Pa.  St.,  414, 

18  Am.  Rep.  420 121 

Oborn  v.  State,  143  Wis.  249, 

126  N.  W.  737 224 

Ostwald    V.    State,    118    N.    C. 

1208,  24  S.  E.  660,  32  L.  R. 

A.   396    227 

O'Connell    v.    State,    10    Tex. 

App.   367    269 


TO   SECTIONS] 

Old  Colony  R.  R.  C.  v.  Tripp, 

147  Mass.  35,  9  A.  S.  R.  661, 

17  N.  E.  89 357 

O'Neal  V.  Com.,  17  Grat.  582.  393 
O 'Brian  v.  State,  7  Tex.  App. 

188    40."} 

Ovcrnled  by  Crum  v.  State,  64 

Miss.  1,  60  Am.  Dec.  44...  535 
Oliver  v.  State,  17  Ala.  587..  548 
Ogles  V.  Com.,  11  S.  W.  816..  549 
Oliver  v.  State,  17  Ala.  587. .  .  549 
Oliver  v.  State,  17  Ala.  587..  561 
O'Reeley  v.  People,  86  N.  Y. 

154,  40  Am.  Rep.  525 053 

O'Reilly    v.    People,    40    Am. 

Rep.  526,  1  Phil,  on  Ev.  15.  056 
O'Connell  v.  Reg,   11   C.  &  F. 

155   369 

Old  Dominion  Steam  Ship  Co. 

v.  McKenua 4;;  L 

Owensby  v.  People,  53   N.  Y. 

472   443 

Owens  v.  Gonzales,  4  Dill  438.  461 
Ooitt  V.  Smith,  68  Vt.  35 397 

P 

People  V.  Hays,  140  N.  Y.  484, 

35  N.  E.  951 13 

People  V.  Motimer,  46  Cal.  114  14 
People    V.    Campbell,    43    Am. 

Rep.   (Cal.)   257   14 

People    V.    Cross,    135    N.    Y. 

536,  35  N.  E.  246 70 

People  V.  Jones,  20  Cal.  51. . .  82 
People    V.    Godfrey,    17    John 

(N.  Y.)   225    88 

People  V.  Slack,  90  Mich.  548, 

51   N.   W.    533 110 

People  V.  Wood,  126  N.  Y.  249, 

27  N.  E.  362 110 

People  V.  Bowden,  90  Cal.,  27 

Pac.  201  110 

People  V.  Herbet,  119  Cal.  206, 

63  A.  S.  R.  72,  51  P.  329..      110 


1352 


Table  or  Cases 


[references  are 

People    V.    McCarty,    115    Cal. 

255,  46  P.  1073 110 

People  V.  Young,  102  Cal.  411, 

36  Pac.  770 114 

People  V.  Gabbatt,  17  Mich.  9, 

97  Am.  Dec.  162 115 

People  V.   Lane,   11   Cal.   379, 

34   Pac.   856    115 

People  V.  Young,  102  Cal.  411, 

36   Pac.    770 115 

People  V.  Ebanks,  40  L.  E.  A. 

(Cal.)   269   119 

People     V.    Worthington,     105 

Cal.   166    119 

People  V.  Kohn,  76   Cal.  386, 

18  Pac.  410 125 

People  V.  Elliott,  80  Cal.  276, 

22  Pac.  207   125 

People  V.  Lane,  101   Cal.  513, 

36  P.  16   126 

People  V.  Wright,  38  Mich.  744     135 
People  V.  White  Lead  Works, 

82  Mich.  471,  46  N.  W.  735, 

9  L.  E.  A.  722 143 

People  V.  Anderson,  44  Cal.  65.     146 
People  V.  Devine,  25  Cal.  227, 

30  Pac.  378 151 

People  V.  Welsh,  71  Mich.  548, 

39  N.  W.  747 151 

People   V.   McCann,   16   N.   Y. 

58,  69  Am.  Dec.  642 158 

People  V.  West,  106  N.  Y.  293, 

12  N.  E.  610,  60  Am.  Eep. 

452    164 

People  V.  Faren,  25  Cal.  361.  .      169 
People    V.    Ilamblin,    68    Cal. 

101,  8  P.  687 170 

People  V.  Kane,  131  N.  Y.  Ill, 

29  N.   E.   1015,  27   A.  S.  K. 

575   173 

People   V.  Murry,   4   Park   Cr. 

Cas.  234   187 

People  V.  Blivcn,  112  N.  Y.  79, 

8  A.  S.  E.  701  and  note 100 

People  V.  Blivon,  112  N.  Y.  79, 

19  N.  E.  638,  8  A.  S.  E.  701.      191 
People  V.  Woody,  45  Cal.  289.      1<»2 


TO   SECTIONS] 

People  V.  Gunzbol,  14  Pac.  836     196 
People  V.  Sinell,  131  N.  Y.  571, 

30  N.  E.  47 206 

People  V.  Dewey,  58  How.  62.  206 
People   V.  Downing,   84  N.   Y. 

478   208 

People  V.  Barnes,  1  Johns  Eep. 

66    210 

People  V.  McNealy,  17  Cal.  332  211 
People  V.   Comstock,   8  Wend. 

549    214 

People  V.  Travers,  77  Cal.  176, 

215   216 

People  V.  Horn,  70  Cal.  17,  11 

P.   470    216 

People  V.  Webb,  38  Cal.  478.  218 
People  V.  Van   Curen,   5   Park 

Cr.  Cas.  66 219 

People  T.  Case,  48  Cal.  323.  .  .  223 
People    V.    Goodwin,   18   Johns 

187     232 

People  V.  Tyler,  7  Mich.  161.  .  232 
People  V.  McCarty,  110  N.  Y. 

309   243 

People  V.  Molineux,  168  N.  Y. 

264,  61  N.  E.  286,  62  L.  E. 

A.   193    260 

People  V.  Ogle,  104  N.  Y.  511.  262 
People  V.  Gould,  70  Mich.  240, 

38   N.   W.   282,   14  Am.   St. 

Eep.  493 272a 

People  V.  Wynne,  15  Cal.  70.  .  273 
People  V.  Murphcy,  39  Cal.  52.  273 
People    V.    Gonzales,    136    Cal. 

666,  69  Pac.  487 276 

People  V.  McCuUow,  81  Mich. 

25,  45  N.  W.  315 282 

People    V.    Standley,    47    Cal. 

113,  17  Am.  Eep.  401 284 

People  V.  McMah.'ui,   15  N.  \. 

386    289 

People    V.    Falck,    125    N.    Y. 

324,  26  N.  E.  267,  11  L.  E. 

A.   807    253 

People  V.  Baker,  60  Mich.  277, 

27  N.  W.  539,  1  A.  S.  E.  50 .      290 


Table  of  Cases 


[referen 
People    V.    Barker,    60    Mich. 

277,  27  N.  W.  539 

People  V.  Maircz,  86  Cal.  533. 
People  V.  Keeler,  99  N.  Y.  468, 

2  N.  E.  615 

People  V.  Daton,  55  N.  Y.  380 
People  V.  Felix,  45  Cal.  163 . . 
People  V.  Riley,  53  Mich.  260, 

18  N.  W.  849 

People  V.  Evorhart,  104  N.  Y. 

591     

People    V.    Solomon,    148    Col. 

303,  83  Pac.  42,  113  A.  S.  R. 

268    

People  V.  Moore,  3  Wheeler  Cr. 

Cas.  82    

People  V.  DeWinton,  113  Cal. 

403,  45   Pac.   708,  54  A.   S. 

E.  357,  33  L.  R.  A.  374 

People  V.  Bush,  4  Hill  133 ... . 
People   V.   Lee  Kong,   95   Cal. 

666,  29  A.  S.  R.  165,  30  P. 

800    

People  V.  Sullivan,  172,  N.  Y. 

122,  93  A.  S.  R.  582,  65  N. 

E.   989    

People  V.  Jones,  46  Mich.  441, 

9  N.  W.  486 

People   V.    Lie   Hang,   95    Col. 

666,  30  Pac.  800,  29  A.  S.  E. 

165,  17  L.  R.  A.  626,  103  A. 

S.  R.  974  and  note  13  Ann. 

Cas.,   41   L.   R.   A.    (N.    S.) 

182   

People     V.     Vandergreen,     106 

Cal.  241,  39  P.  607,  46  A.  S. 

R.  234  

People  V.  Yrlas,  27  Cal.  630.  . 
People   V.   Barnsby,   32   N.   Y. 

525-532 

People  V.  Murrey,  14  Cal.  159. 
People  V.  Stiles,  75  Cal.  70.  .  . 
People    V.    Young,    122    Mich. 

292,  81  N.  W.  114,  47  L.  R. 

A.   108    


CES   ARE   TO   SECTIONS] 

People  V.  Sullivan,  173  N.  Y. 

291  122,  65  N.  E.  989,  93  A.  S. 

292  R.  582,  63  L.  R.  A.  353 365 

People  V.  Bush,  4  Hill  133 366 

300       People  v.  Gleason,  99  Cal.  359, 

300  33  P.  nil,  37  A.  S.  R.  56.  .      373 

321       People  v.  Mize,  80  Cal.  42 374 

People  V.  Scott,  6  Mich.  296.  .     375 

321  People  v.  Moran,  123  N.  Y.  25 

N.   E.   412 377 

322  People  v.  Jones,  46  Mich.  441, 

9  N.  W.  486 377 

People  V.  Gardner,  144  N.  Y. 
328  119,   38   N.   E.   1003,   43   A. 

S.  R.  741,  28  L.  R.  A.  699.  .      377 
33g       People  v.  Mason,  254,  25  N.  E. 

412,  20  A.  S.  R.  732 377 

People  V.  Murrey,  14  Cal.  159.     378 
3^2       People  v.   Spoor,   235   111.   85, 
3^g           N.  E.  207,  136  A.  S.  R.  197 
and  note  p.  201  and  authori- 
ties collated 388 

People  V.  Brown,  34  Mieh.  339, 

22  Am.  Rep.  531 388 

People    V.    Lambert,    5    Mich. 

349,  72  Am.  Dec.  49 389 

^^^        People   V.   Hartman,    130    Cal. 

487   390 

^^^       People  V.  McQuid  (Mich.),  48 

N.  W.  161   391 

People  V.  Spoor,  126  A.  S.  R. 

page  216  and  note  page  215     391 
People  V.  Lambert,  5  Mich.  349     393 
People  V.  Brown,  34  Mich.  339, 
^^^  Cyc.  vol.  5,  p.  693,  note  24, 

22  Am.  Rep.  531 395 

People  V.  Faber,  2  N.  Y.  146, 

353     44  Am.  Rep.  357 396 

35-i   People  V.  Spoor,  235  111.  230, 
85  N.  E.  207,  126  A.  S.  R. 

361     197  399 

365        People  v.  Morhan,  64  Cal.  157, 

365  30  P.  620,  39  Am.  Rep.  700.      402 

People  V.  Bush,  4  Hill  133 403 

People   V.    Thornton,   25    Ilun. 
365  485   404 


1354 


Table  of  Cases 


[references  are 
People    V.    Markham,    64    Cal. 

157   406 

People  V.  Jackson,  191  N.  Y. 

293,  84  N.  E.  65,  14  Am. 

Cas.  243,  15  L.  K.  A.  (N. 

S.)  1173  406a 

People  V.   Coffey,  161  Cal.  433, 

119  P.  901,  30  L.  E.  A.  (N. 

S.)  704  407 

People    V.    White,    153    Mich. 

617,  117  N.  W.  161,  15  Ann. 

Cas.   927,   17   L.   R.   A.    (N. 

S.)  1102 411 

People   V.    McCloskey,   5  Park 

(N.  Y.)   63 412 

People  V.  Richards,  2  A.  S.  E. 

note  p.  388 415 

People  V.  Targart,  43  Cal.  81.     417 
People  V.  Strauch,  240  111. '60, 

88  N.  E.  155,  130  A.  S.  R. 

255    418 

People    V.    E'chards,    1    Mich. 

216,    51    Am.    Dec.    75    and 

note    82    420 

People    V.    Eichards,    1    Mich. 

216,  51  Am.  Dec.  75 421 

People    V.    Eichards,    67    Cal. 

412,  7  P.  828,  56  Am.  Eep. 

716    422 

People  V.  Miller,  82  Cal.  107, 

22   P.    934 422 

People    V.    Flack,    125    N.    Y. 

324,  26  N.  E.  207,  11  L.  E. 

A.   807    423 

People    V.    Eichards,    1    Mich. 

216,  5  Am.  Dec.  75 424 

People  V.  Chase,  16  Barb.  485.     430 
People  V.  Flack,   125  N.  J.  L. 

324,  26  N.  E.  267,  11  L.  E. 

A.  807 430 

People  V.  Fisher,  14  Wend.  10, 

28  Am.  Dec.  501 431 

People    V.    Sheldon,    1893,    139 

N.  Y.  251,  36  A.  S.  R.  690.      433 
Peoi)le  V.  Arnold,  46  Mich.  268, 

273     436 


TO   SECTIONS] 

People    V.    Eichards,    1    Mich. 

216,  51  Am.  Dec.  75-n 436 

People    V.    Eichards,    51    Am. 

Dec.   1,  Mich.   216 438 

People  V.  Arnal,  46  Mich.  268, 

38  Am.  Dec.  347 438 

People  V.  Strouch,  240  111.  60, 

88  N.  E.  155,  130  A.  S,  E. 

255    439 

People  V.  Brown,  59  Cal.  345..  442 
People    V.    Freedman,    205    N. 

Y.    161,    98    N.    E.    471,    45 

L.  E.  A.   (N.  S.)   55 443 

People  V.   McDonnell,   80   Cal. 

285,  22  P.  199,  13  A.  S.  E. 

159   447 

People   V.   McDonald,   80    Cal. 

285,  22  P.  160,  13  A.  S.  E. 

150   448 

People    V.    Keeler,    99    N.    Y. 

463,   2    N.    E.    615,   52    Am. 

Rep.   49    450 

People    V.    County    Judge,    27 

Cal.   151    455 

People  V.  Cassets,  5  Hill  164.     458 

People  V.  Story,  79  111.  45 460 

People  V.  Wilson,  64  111.  195.  460 
People   V.   Murrey,   50   N.  W. 

995   466 

People  V.  Wilson,  69  111.  219.  467 
People  V.  Frier,  1  Caines  484.  467 
People  V.  Frio,  2  Johns.  290..  467 
People   V.   Tool,   35   Colo.   225, 

86   Pac.   224,   117   A.  S.   E. 

108,  6  L.  R.  A.  (N.  S.)  822.  470 
People  V.  Mode,  92  N.  Y.  415.  470 
People  V.  O 'Brian,  96  Cal.  171  477 
People    V.    Miller,    160    N.    Y. 

339,  6  N.  E.  418,  88  A.  S.  E. 

546    479 

People   V.   Burr,   41    How.    Pr. 

295   479 

People    V.    Dalton,    15    Wend. 

581    481 

People  V.  Ilcnnessy,  15  Wend. 

147   481 


Table  of  Cases 


1355 


[references  are 
People  V.  Williams,  GO  Cal.  1 .      482 
People    V.    Dalton,    15    Wend. 

581   484 

People  V.  Allen,  5  Denio  79. . .     484 
People  V.  Sherman,  10  Wend. 

298,  25  Am.  Dec.  563 487 

People  V.  Peterson,  9  Cal.  313.      487 
People   V.    Treadwell,    69    Cal. 

226   487 

People  V.  McKinney,  10  Mich. 

54  487 

People   V.   Thomas,   82    N.    Y. 

Supp.  215    489a 

People   V.   Warren,    122   Mich. 

504,   81    N.   W.    360,   80   A. 

S.    E.    582 491 

People    V.    Babcock,    7    John. 

(N.    Y.)    201,    5    Am.    Dec. 

26   493 

People  V.  Rothstein,  180  N.  Y. 

148,   72   N.   E.   999,   1   Ann. 

Cas.    978    495 

People   V.   Haynes,    14   Wend. 

546,  28  Am.  Dec.  530 496 

People   V.   Donnalson,   70   Cal. 

116,  11  P.  681 497 

People  V.  McAllister,  49  Mich. 

12,  12  N.  E.  891 498 

People   V.   Donnalson,    70    Cal. 

116    498 

People  V.  Donnalson,  70  Cal. 

116,  11  P.  681 501 

People  V.  Lewinger,  252  111. 

332,  96  N.  E.  837,  Ann. 

Cas.,  1912  D  239 507 

People  V.  Wilson,  6  Johns.  320.     507 
People    V.    Bendit,     141     Cal. 

274,  31  L.  E.  A.  831 509 

People    V.     Bendit,     111    Cal, 

274,  43  P.  901,  52  A.  S.  E. 

186,  31  L.  E.  A.  831 509 

People  V.  Phelps,  49  How.  (N. 

Y.)  Pr.  462 512 

People    V.    Pfeiffer,    243    111. 

200,  90  N.  E.  680,  17  Ann. 

Caa.   703,   26  L.  E.   A.    (N. 

S.)    138,  see  note  17   Ann. 


TO   SECTIONS] 

Cas.  703,  see  note  26  L.  E. 

A.  (N.  S.)  138 515 

People     V.     Caton,     25     Mich. 

390   518 

People    V.    Swetland    (Mich.), 

43  N.  W.  779,  77  Mich.  53.  519 
People  V.  Eathborn,  21  Wend. 

505   519 

People    V.    Bingham,    2    Mich. 

550,   Tnd ' 519 

People  V.  Kingley,  2  Cow.  522.  520 
People   V.    Stevens,    21    Wend. 

409   521 

People    V.     Van     Alstine,    57 

Mich.  74,  23  N.  W.  594 521 

People     V.     O 'Brine,     96    Cal. 

171,  31  P.  45 521 

People  V.  Phillips,  70  Cal.  61, 

11  P.  493 524 

People  V.  Frank,  28  Cal.  507. .  525 
People    V.    Bingham,    2    Mich. 

550    525 

People  V.  Schrayver,  42  N.  Y. 

1,  1  Am.  Eep.  480 533 

People  V.  McLead,  1  Hill.  436.  533 
People  V.  Cotteral,   18   Johns. 

120,  2  Starkie's  ev.  489 533 

People  V.  Lewis,  124  Cal.  551, 

67  P.  470,  45  L.  E.  A.  783.  .  536 
People  V.  Kane,  213  N.  Y.  260, 

107    N.    E.    655,    L.    E.    A., 

1915  F  607    535 

People  V.  Enoch,  13  Wend.  (N. 

Y.)  159,  27  Am.  Dec.  192..  539 
People  V.  Howe,  44  Cal.  906..  541 
People  V.  Fain,  25  Cal.  361 . .  541 
People  V.  Ilorton,  4  Mich.  67, 

Foster  296    547 

People    V.    Campbell,    50    Cal. 

243,  43  Am.  Eep.  257 547 

People  V.  Horton,  4  Mich.  67.  549 
People  V.  Kilvington,  104  Cal. 

86,  37  P.  799 550 

People  V.  Pcarne,  118  Cal.  154, 

50  Pac.  Eep.  376 553 

People  V.  Shorter,  4  Barb.  460.     555 


1356 


Table  of  Cases 


[references  are 
People    V.    Williams,    32    Cal. 

280   556 

People    V.    Lennon,    71    Mich. 

298,  38  N.  W.  82,  15  A.  S. 

E.  259 556a 

People    V.    McGinnis,    234   111. 

68,  84  N.  E.  687,  123  A.  S. 

E.  73   556a 

People  V.  Lamb,  41  N.  Y.  360.  557 
People  V.  Pond,  8  Mich.  150..  558 
People   T.   Coughlin,   67   Mich. 

466,  35  N.  W.  72 559 

People  V.  Walsh,  43  Cal.  337. .  559 
People  V.  Horton,  4  Mich,  67 . .  559 
People  V.  Payne,  8  Cal.  341. . .  560 
People  V.  Eector,  19  Wend.  569  560 
People  V.  Flannagan,  66  Cal.  2  560 
People  V.  Dann,  53  Mich.  490, 

19  N.  W.  159,  51  Am.  Eep. 

151    560 

People  V.  Cook,  39  Mich.  236, 

33  Am.  Eep.  380 562 

People  V.  Adams,  47  111.  376. .  563 
People   V.   Button,   105    (Cal.) 

628,  46  A.  S.  E.  259 566 

People  V.  Simons,  60  Cal.  72 . .  566 
People  V.  Mise,  80  Cal.  42,  22 

P.   80    569 

People  V.  Hoban,  249  111.  303, 

88  N.  E.  806,  16  Ann.   Cas. 

226,    22    L.    K.    A.    (N.    S.) 

1132    570 

People    V.    Miller,    169    N.    Y. 

339,  62  N.  E.  418,  88  A.  S. 

E.  546  and  note 573 

People  V.  Button,  46  A.  S.  E. 

259    566 

People  V.  Ilecker,  109  Cal.  451, 

42  P.  307 566 

People  rel.  Shand  v.  Tighc, 

35  N.  Y.  305 574 

People  V.  McKinlcy,  9  Cal.  250  577 
People  V.  Long,  50  Mich.  249, 

15  N.  W.  105 577 

People   V.   Nicholds,   17   N.   Y. 

114    r)79 


TO   SECTIONS] 

People  V.  Anderson,  14  Johns. 

(N.  Y.)   294 581 

People  V.  Swartz,  32  Cal.  160.  582 
People  V.  McClosky,  5  Parker 

Crim.  E.  57 582 

People  V.  Eea,  66  Cal.  423,  56 

Am.  Eep.  102 583 

People  V.  Moore,  37  Hun.  (N. 

Y.)   84 584 

People  V.  Schuyber,  6  Cow.  572  585 
People  V.   Swelm,   80  Cal.   46, 

13  A.  S.  E.  96,  22  P.  67 .  .  .  585 
People    V.    Miller,    169    N.    Y. 

339,  62  N.  E.  418,  88  A.  S. 

E.  546  note  597 585 

People  V.  Eeynolds,  2  Mich. 

422  587 

People   V.   Bennett,   37   N.   Y. 

117   591 

People  V.  Hanselman,  76  Cal. 

460,  9  A.  S.  E.  238 593 

People   V.    Moran,    123    N.    Y. 

254,  25  N.  E.  412 594 

People    V.    Stranch,    153    111. 

App.   544,   see   247   111.   220, 

93  N.  E.   126 606 

People  V.  De  Leon,  109  N.  Y. 

226,  16  N.  E.  46,  4  A.  S.  E. 

444    619 

People  V.  De  Lean,  109  N.  Y. 

226,  4  A.  S.  E.  444,  16  N.  E. 

46    622 

People  V.  De  Leon,  4  A.  S.  E. 

449    623 

People    V.    Kane,    131    N.    Y. 

Ill,    27    A.    S.    E.    575,    29 

N.  E.   1015 626 

People  V.  Golden,  62  Cal.  542..  630 
People  V.  Wright,  3  Cal.  564. .  631 
People  V.  Muller,  96  N.  Y.  408, 

48  Am.  Eep.  635 650 

People  V.  Eastman,  188  N.  Y. 

478,  8   N.   E.   459,   11    Ann. 

Cas.  302  and  note 650 

People  V.  Teal,  196  N.  Y.  372, 

80  N.  E.  1086,  17  Am.  Cas. 


Table  of  Cases 


1357 


[RErERENCES    A 

1172,  25  L.  R.  A.  (N.  8.) 

120  653 

People  V.  Cohen,  118  Cal.  74, 

50  P.  20 661 

People  V.  Kelley,  38  Cal.  145, 

99  Am.  Dec.  360 662 

People  V.   Kelly,  38  Cal.   145, 

99  Am.  Dec.  360 664 

People  V.    McKinney,   3    Park 

Cr.  L.  510 665 

People   V.    McDermott,    8   Cal. 

288  667 

People    V.    Cohill,    193    N.    Y. 

232,    20   L.   R.   A.    (N.    S.) 

1084  668 

People    V.    Coswell,    13    Mich. 

433,  87  Am.  Dec.  774 685 

People  V.  Griffin,  117  Cal.  583, 

49  P.  711,  59  A.  S.  E.  216.  686 
People  V.  Chapman,  62  Mich. 

280,  4  A.   S.   R.   857,  28  N. 

W.  896   688 

People  V.  Verdegreen,  106  Cal. 

211,  46  A.  S.  R.  234,  39  P. 

607  690 

People  V.   Chapman,  62  Mich. 

280,  4  A.   S.  R.   857,  28  N. 

W.  896,  68  Am.  Dec.  264. . .  691 
People  V.  Bates,  38  N.  W.  231.  692a 
People  V.  Kehoe,  128  Cal.  224, 

69  A.  S.  R.  52 704 

People  V.  Kehoe,  69  A.  S.  R. 

54   704 

People  V.  aark,  33  Mich.  112.  704 
People  V.  Hubbard,  92  Mich. 

322,  52  N.  W.  729 705 

People   V.   Nelson,   153   N.   Y. 

90,  60  A.  S.  R.  592 705 

People    V.    Squires,    49    Mich. 

487   705 

People  V.  Nelson,  supra 705 

People    V.    Ruggles,    8    Johns. 

290   708 

People  V.  Scranton,  61  Mich. 

244   718 

People  V.   Scranton,   61   Mich. 

244,  28  N.  W.  81 719 


RK   TO   SECTIONS] 

People  V.  Most,  128  N.  Y.  108, 

26  A.  S.  R.  453 726 

Perry  v.  State,  87  Ala.  114..  14 
Prescott  V.  State,  19  Ohio  St. 

184    16 

Piatt    V.    Denver,    Canall    and 

Milling   Co.    (Colo.),  30    P. 

68    37 

Peake  v.  State,  121  Ind.  433, 

23   N.   E.   273 125 

Physico  Medico  Col.  of  Ind.  v. 

Wilkinson,    108   Ind.   314,   9 

N.    E.     167 126 

Prinder  v.  State,  27  Fla.  370,  8 

So.  837,  26  A.  S.  R.  75....  151 
Price   V.  State,   18   Tex.   App. 

474    153 

Patterson    v.    Nutter,    78    Me. 

509,   7   Atl.   266 180 

Price  V.  State,  36  Miss.  356,  72 

Amer.  Dec.  195 209 

Parham  v.  State,  2  Tex.  App. 

228    211 

Prince  v.  State,  19  Ohio  423..  221 
Perry  v.  State,  44  Tex.  773 .  .  243 
Pennegar  v.  State,  2  L.  R.  A. 

703,  87  Tenn.  244 397 

Parter  v.  Com.,  61  S.  W.  16,  22 

Ky.  Rep 591 

Poage  V.  State,  3  Ohio  St.  229  521 
Pollock  V.  State,  32  Tex.  App. 

29   336 

Pond  V.  People,  38  Mich.  150.  339 
Price   V.   State,   17   Tex.   App. 

132    355 

Price  V.  State,  36  Miss.  531,  72 

Am.  Dec.   195 355 

Pinkerton    v.    Woodward,    91 

Am.  Dec.  660,  33  Col.  557.  .  357 
Perry  v.  People,  14  lU.  496..  374 
Pickard  v.  State,  30  Ga.  767 . .  376 
Pennegar  v.  State,  2  L.  R.  A. 

703,  87  Tenn.  244 397 

Pitcher  v.  People,  16  Mich.  142  409 
Painter  v.  State   (Tex.),  9  S. 

W.  774   414 


1358 


Table  of  Cases 


[references  are 
Patton    V.    Gurney,    17    Mass. 

182    425 

Parker  v.   Griswald,   17   Conn. 

302,  43  Am.  Dec.  739 430 

Plant  V.  Woods,  176  Mass.  79, 

A.  S.  E.  330,  57  N.  E.  1011, 

51  L.  K.  A.  339 432 

Phillips  V.  State,  6  Tex.  App. 

364    442 

Preston  v.  Brown,  13  Ohio  St. 

1-13    442 

Powers  V.  Com.,  110  Ky.  386, 

61   S.  W.   735,  53   L.   K.  A. 

245    443 

Patten  v.  State,  6  Ohio  St.  467  443 
Patton  V.   Harris,   15  B   Mon. 

607     459 

Plunkett  V.  Hamilton,  136  Ga. 

72,  70  S.  E.  781,  Ann.  Cas. 

1912  B  1250,  35  L.  K.  A.  (N. 

S.)    583    462 

Powel  V.  State,  34  Ark.  693 . .  481 
Pullam  V.  State,  78  Ala.  31,  56 

Am.    Eep.    21 484 

Pullam  V.  State,  78  Ala.  31,  56 

Am.  Eep.  21   487 

Pugh  V.  Paine,  62  Ala.  340,  34 

Am.  Eep.  24   489a 

Perkins  v.  State,  67  Ind.  270, 

32  Am.  Eep.  89   495 

Poage  V.  State,  3  Ohio  St.  229     522 

Perry  v.  State,  43  Ala.  21 545 

Powel  V.  State,  28  Tex.  App. 

393,  13  S.  W.  599 545 

Patterson  v.  State,  66  Ind.  185  548 
Pond  V.  State,  8  Mich.  150..  548 
Pritchet  v.  State,  22  Ala.  39. .  549 
Pierce  v.  State,  17  Tex.  App. 

132,  22   S.   W.   587 549 

Powell  V.  State,  5  Tex.   App. 

234    556 

Pugh  V.  State,  2  Tex.  App.  539  556 
I'ridgcn  v.  State,  31  Tex.  420  557 
Patterson  v.  State,  12  Am.  L. 

Eep.  N.  S.  647,  Hor.  & 
Thorn.  Self  Defense,  Vol.  1, 
861    560 


TO   SECTIONS] 

Pierce  v.  State,  17  Tex,  App. 

232,  22  S.  W.  587   560 

Parmer  v.  State,  9  Wyo.  40,  87 

A.  S.  E.  910,  59  P  793 566 

Pruet  V.   State,  20  Tex.  App. 

129    569 

Patterson  v.  State,  85  Ga.  131, 

21  Am.  Eep.  152 569 

Patton  V.   State,  24  L.  E.  A. 

782   574 

Patrick  v.  State,  50  Tex.  App. 

496,  98  S.  W.  840   575 

Parvell  v.  State,  34  Ark.  693 . .  578 
Phillips  V.  State  (Tenn.),  3  S. 

W.  434 580 

Pitts  V.  State,  5  Tex.  App.  12  583 
Phelps  V.  People,  55  111.  334. .  589 
Printz  V.  People,  42  Mich.  144, 

36  A.  S.  E.  437,  3  N.  W.  306  590 
Pattrick  v.  Smoke,  3  Strab.  147  665 
Payne  v.  State,  38  Tex.  App. 

494,  70  A.  S.  E.  760,  49  S. 

W.  604,  76  A.  S.  E.  712...  685 
Payne  v.  State,  40  Tex.  App. 

202,  76  A.  S.  E.  713,  28  P. 

235,  37  A.  S.  E.  505 686 

Putnam  v.  State,  supra 705 

Prindle  v.  State,  31  Tex.  App. 

551,  37  A.  S.  E.  833 706 

Pratt  V.  Price,  11  Wend.  128.     658 

B 

Eatsky    v.    People,    29    N.    Y. 

124    13 

Eced  V.  State,  26  Miss.  51.  .  .  96 
Eobertson    v.    State,    16    Tex. 

App.   54 97 

Eyan      v.       People       (Colo.), 

1917  C,    Ann.    Cas.    605,    60 

Colo.  425,  153  P.  756 107 

Kathcr  v.  State,  25  Tex.  App. 

623,  9S.  W.  69 108 

Eeagan  v.  State,  28  Tex.  App. 

227,    12    S.   W.    601,    19    A. 

S.   E.   333 161 

Euble  V.  State,  10  S.  W.  362..     206 


Table  of  Cases 


1359 


[REFERENCES   ARE   TO   SECTIONS] 


Roberst    v.    State,    14    Ga.    8, 

58  Am.  Dec.  528 

Ruthiford  v.  Com.,  78  Ky.  639 
Reagan  v.  State,  49  Colo.  316, 

112  P.  785 

Rofferty  v.  State,  91  la.  655.. 
Roberts     V.     State,     7     Cold. 

(Tcnn.)   359 342 

Rex  V.  March,  R.  &  M.  C.  C. 

182   

Rex  V.  Harris,  2  East.  1023.. 
Rex  V.  Russell,  C.  &  M.  541.  .  . 
Rex  V.  Stallion,  1  Mood.  C.  C. 

1020   

Rex   V.   Taylor,   2   East.   P.   C. 

398   

Rex  V.  Parker,  9  C.  &  P.  45 . . . 
Rex  V.  Jones,  C.  &  K.  530.  .  .  . 
Rex  V.  George,  9  C.  &  P.  483 .  . 
Rex  V.  Rosinski,  1  M.  C.  C.  19 
Rex  V.  Walkden,  1   Cox  C.  C. 

282   

Rex   V.    Dilworth,   2    M.    &    R. 

531    

Rex    V.    Bennett,    4    R.    &    F. 

1005   

Rex  V.  Case,  4  Cox  C.  C.  220.. 
Rex  V.  Clayton,   1   Car.   &   K. 

128    

Reg   V 

589 

Reg  V, 

225 
Rex  V.  Phillips,  6  East.  464.  .. 
Rex  V.  Donivan,  4  Cox  C.   C. 

425    

Reagan  v.  State,  28  Tex.  App. 

227,  19  A.  S.  R.  833 375 

Rex  V.  Thomas,  1  East.  P.  C. 

417   

Rex  V.  James,  9  Leach  258.  .  . . 
Rex  V.  Holt,  7  Car.  &  P.  518.. 
Rogers  v.  Com.,  5  Serg.   &  R. 

463    

Rec  V.  Chapin,  3  Con.  C.  C. 
467  378 


Meredith,  8  C.  &  P. 
Phillips,  3  Cox  C.  C. 


218 
269 

275 
527 


343 
343 
344 

344 

344 
344 
346 
346 
348 

352 

352 

353 
353 

368 

371 

371 
373 

375 


375 
375 
375 

377 


Rex  V.  McPherson,  D.  &  B. 

196  378 

Rex  V.  Cheezeman,  9  Con.  C.  C. 

108    378 

Rex  V.  Tiiylor,  1  F.  &  F.  511.  378 
Rex  V.  Brown,  1  C.  &  K.  114.  389 
Robertson  v.  Com.,  69  Ky.   (6 

Bush)  300   392 

Rex  V.  Jacobs,  1  Moody  C.  C. 

140   399 

Rex  V.  Brigs,  1  Denio,  4  Bell 

98  399 

Rex  V.  Vaughn,  4  Burr  2494.  .      406 
Rex  V.  Pallman,  2  Camp  229..     406 
Rudolph    V.    State,    128    Wis. 
222,  107  N.  W.  467,  116  A. 

S.   R.  32 406a 

Robertson  v.  State,  34  Tex. 
Jourt  App.  71,  29  S.  W.  40, 

53  A.  S.  R.  701 412 

Roberts   v.   Territory,   8   Okla. 

326,  57  P.  840 413 

Rogers  v.  State,  43  Tex.  406..  414 
Richards    v.    People,    51    Am. 

Dec.   85    427 

Randall  v.  Lonsdorf,  126  Wis, 
147,  105  N.  W.  663,  5  Ann. 
Cas.  371,  3  L.  R.  A.   (N.  S.) 

407    428 

Rouse  V.  State,  4  Ga.  136 447 

Rex  V.  Thorley,  1  Moody  C.  C. 

343   479 

Rex  V,  Armon,  7  Con.  C.  C.  45  479 
Rex  V.  Latisberry,  5  Car.  &  P. 

156   479 

Rex  V.  Beaumont,  Dears  C.  C. 

270  479 

Rex  V.  Harris,  6  Cox  C.  C.  360.  479 
Reed   v.   State,   16    Tex.    App. 

590    484 

Rainey  v.  People,  22  N.  Y.  413  495 
Roberts  v.  People,  9  Colo.  458, 

13  P.  630   497 

Rainey  v.  State,  94  Ga.  599.  .  .     500 
Regina  v.  Smith,  9  Cox  C.  C. 
162   512 


1360 


Table  of  Cases 


[references  are 

Eembert  v.  State,  25  Am.  Eep. 

639,   53   Ala.   467 521 

Rathburn  v.  People,  21  Wend. 

509   525 

Reg  V.  Mawbridge,  Kely,  119.  529 
Rex  V.  Hovey,  2  B.  &  C.  268.  .  529 
Roberts  v.  State,  14  Mo.   147, 

55  Am.  Dec.  97 548 

Robinson  v.   State,  93   Ga.   77, 
18  S.  E.  1018,  44  A.  S.  E. 

127     549 

Reneau  v.  State,  2  Lea  720.  .  .  550 
Roberts  v.  State,  14  Mo.  138. .  551 
Rippy      V.      State,      2      Head 

(Tenn.)    27    555 

Ripply  V.  State,  2  Head  217. .  556 
Rippy  V.  State,  26  Miss.  362 . .  557 
Roach  V.  People,  77  111.  25...  560 
Rex   V.  Hawkins,  4   Cox  C.   C. 

224    578 

Roberts  v.   State,  83   Ga.   369, 

9   S.    E.   678 581 

Rombo  V.  State,  28  Tex.  App. 

33    587 

Rice  V.  State,  3  Heisk  226 595 

Rex  V.  White,  1  F.  &  F.  665. .  597 
Ross  V.  State,  55  Ga.  192,  21 

Am.  278   662 

Reg  V.  Dunn,  12  A.  &  E.  599..  675 
Rex  V.  Clark,  6  Cox  C.  C.  413 .  685 
Reg  V.  Barrow,  11  Cox  C.   C. 

191   C85 

Reg  V.  Williams,  8  Cox  C.  C. 

223    685 

Regina  v.  Barrett,  12  Cox  C.  C. 

498    685 

Regina  v.  Young,  14  Cox  C.  C. 

114   686 

Rex  V.  Mayers,   12  Cox  C.  C. 

311   686 

Rhodes  V.  State,  1  Cold.  350..  690 
Rodgcrs  V.  State,  1  Tex.  App. 

187     692a 

]?nx  V.  Hickman,  1  Moody  34.  .      707 
Ruggk'.s  V.  I'eople,  5  Am.  Dec. 
335    711 


TO    sections] 

s 

state  V.  Manning,  14  Tex.  402.        13 
State   V.   Sneed,   25   Tex.   Sup. 

66   13 

State   V.   McDonald,   20   Minn. 

136    14 

State  V.  Barnett,  3  Kan.  250..       16 
State  V.  Jackson,  21  La.  Ann. 

574    16 

State    V.    Hoyt,    4    Wash.    St. 

Rep.   465    16 

State   V.   Harr.    (W.   Va.),   17 

S.  E.  794   35 

State  V.  Melton,  117  Mo.  608, 

53  Mo.  App.  646 35 

State  V.  Aleson  (Minn.),  52  N. 

W.  220    37 

State  V.  Smith    (Iowa),  48  N. 

W.  727    39 

State  V.  Wolf  (N.  C),  17  S.  E. 

528   39 

State  V.  Sparks,  27  Tex.  627 .  .        42 
State  V.  Rankin,  44  Tenn.  145 .        51 
State    of   Ky.    v.    Dcnison,    24 
How.  U.  S.  Rep.  vol.  62-65- 

717   68 

State  V.  Ross,  21  la.  467 70 

State  V.  Stewart,  60  Wis.  587, 

19  N.  E.   429 70 

State   V.   Hall.   40    Ivans.   338, 

19   Pac.  918 70 

State  V.  Witford,  54  Wis.  150- 

57    78 

State  V.  Roberts,  8  Nev.  239. .       83 
State   V.   Judge,  21   La.    Ann. 

119   83 

State   V.    Doyle,   40   Wis.    175, 

32  Am.  Rep.  692 90 

State  V.  Ellis,  3  Conn.   185,  8 

Am.  Dec.   175 91 

State  V.  Bartlett,  11  Vt.  650.  .        91 
State    V.    Johnson,    2    Oregon 

115    S»l 

State  V.  Burnet,  14  Iowa  479.        91 
State  V.   Rennols,  14  La.  Ann. 
278    91 


Table  of  Cases 


13G1 


[references  aki- 
State  V.  Newman,  9  Nev.  48, 

16  Am.  Kep.  3 92 

State  V.  Newman,  9  Nev.  98..  93 
State  V.  Stantly,  24  Ohio  166.  94 
State  V.  Kelley,  76  Me.  645..        96 

State  V.  Kelly,  26  Me.  331 98 

State   V.   Wycoff,   31   N.   J.   L. 

68   99 

State  V.  Dennis,  80  Mo.  594.  .  .  99 
State  V.  Sheffer,  1  S.  W.  293 . .  99 
State  V.  Moore,  40  S.  W.  287.  100 
State  V.  Jones,  50  N.  H.  369.  .  106 
State   V.    Bowling,    116   S.   W. 

(Ark.)  658,  20  Neb.  333...  107 
State  V.  Lewis,  22  Pa.  241...  107 
State  V.  Lowe,  93  Mo.  547,  5 

S.  W.  889  109 

State  V.  Leach,  3  S.  W.  539. .  .  109 
State  V.  Williams,  9  S.  W.  5.  .  109 
State     V.     Reidell,     9     Houst. 

(Del.)  470,  14  Atl.  550....  109 
State  V.  Giebel   (Tex.),  12  S. 

W.    591,    Id.    28    Tex.   App. 

151   109 

State  V.  Lewis,  20  Nev.  333,  8 

Am.   Cr.   Rep.   594,   22   Pac. 

241    109 

State  V.  Parsons,  21  So.  854. .  108 
State  V.  Lowe,  93  Mo.  547,  5 

S.  W.  889 109 

State  V.  Leach,  3  S.  W.  539. ..  109 
State  V.  Williams,  9  S.  W.  5. .  109 
State  V.  Mawry  (Kan.),  15  P. 

R.  232   109 

State  V.  Ridell  (Del.),  14  All. 

Rep.  550   109 

State  V.  Giebel   (Tex.),  12  S. 

W.  591,  Id.  28  Tex.  App.  151  109 
State  V.  Lewis,  20  Nev.  333,  8 

Am.  Cr.  Rep.  941 109 

State  V.  Riddle,  245  Mo.  451, 

Ann.  Gas.  1914  A  886,  150 

S.  W.  1044,  43  L.  R.  A. 

(N.  S.)  150 113 

State  V.  Cooper,  170  N.  C.  719, 

87  S.  E.  50 113 

C.  L.— 86 


TO    sections] 
state    V.    Hassirig,  60   Ore.   81, 

ll'H   Pac.    195 113 

State   V.   Mewhinney,   43   Utah 

135,   Ann.   Cas.    1916  C   537, 

134     Pac.     632,     L.     R.     A, 

1916  D   590    113 

State  V.  Leakey,  44  Mont.  354, 

120    Pac.    234 113 

State   V.    Kelley,    74    Vt.    278, 

52  Atl.  434 113 

State  V.  Hanson,  25  P.  O.  976.  115 
State  V.  Tom  (Ore.)  30  P.  307  115 
State    V.    Alexender,   30    S.    C. 

74,  8  S.  E.  440,  14  A.  S.  R. 

878   121 

State  V.  Felter,  32  Iowa  495. .  121 
State  V.  Lawrence,  57  Me.  574  121 
State  V.  Redmen,  71  Mo.  170.  .  121 
State  V.  Felter,  32  Iowa  495.  .  122 
State  V.  Lawrence,  57  Me.  574.  122 
State  V.  Redmen,  71  Mo.  170.  122 
State  V.  Redmore,  71  Mo.  171, 

35  Am.  St.  Rep.  462 124 

State  V.  Gabbutt,  17  Mich.  97.  125 
State  V.  Marler,  2  Ala.  43,  36 

Am.  Dec.  398 125 

State  V.  Bartlett,  43  N.  H.  224, 

80  Am.  Dec.  154 125 

State  V.  Redimeir,  71  Mo.  173, 

36  Am.  Rep.  462 127 

State    V.    Anderson,    43    Conn. 

514,  21  Am.  Rep.  669 127 

State  V.   Hockett,   70   la.   442, 

30  N.  W.  742 128 

State  V.  Pennyman,  68  la.  216, 

26  N.  W.  82 128 

State  V.  Leochman,  3  S.  Dak. 

171,  49  N.  W.  3 128 

State   V.   Lewis,    20   Nev.   333, 

22    P.    241 128 

State  V.  Green,  40  S.  C,  328, 

18   S.    E.   933 128 

State    V.    Robertson,    117    Mo. 

649,  23  S.  W.  1066 128 

State   V.   Calla,   8  Wash.    512, 

36    P.   474 128 


1362 


Table  of  Cases 


[references  are 
state  V.  Nacton,  26  S.  W.  551.     128 
State  V.  Bartlett,  43  N.  H.  224, 

80  Am.  Dec.   154 129 

State  V.  Jones,  50  N.  H.  369, 

9  Am.  Kep.  242 129 

State  V.  Johnson,  40  Conn.  136  129 
State   V.    Crawford,  11   Kans. 

32   129 

State  V.  Feller,  32  la.  49 129 

State  V.  Klinger,  43  Mo.  127. .  129 
State  V.  Aron,  7  Am.  Dec.  592, 

1  South.  231 131 

State  V.  Fowler,  52  Iowa,  2  N. 

W.  983   131 

State    V.    Nickerson,    45    La. 

Ann.  1172,  14  So.  134 132 

Satte    V.    Dowell,    106    N.    C. 

722,  19  Am.  St.  568 138 

State  V.  Passcocco  Soc,  54  N. 

J.  L.  546,  23  A.  680 143 

State  V.  Portland,  74  Me.  268, 

43  Am.  Kep.  586 143 

State  V.  Gardner,  5  Nev.  377. .  146 
State  V.  Gates,  17  N.  H.  373. .  147 
State  V.  Harris,  17  Mo.  379..  148 
State  V.  Bond,  8  Iowa  540...  148 
State  V.  Goodenow,  65  Me.  30.  149 
State  V.  Goodenow,  65  Me.  30.  150 
State  V.  Benham,  23  Iowa  154, 

92  Am.  Dec.  417 152 

State  V.  Wells,  1  N.  J.  L.  Rep. 

424,  1  Am.  Dec.  211 153 

State   V.   Welch,    73    Mo.    284, 

39  Am.  Ecp.  515 154 

State  V.   O'NeU,  147  la.  513, 

126   N.   W.   415,   Ann.   Cas. 

1912  B  691 154 

State  V.  Rumble,  81  Kan.  16, 

105  P.  1,  25  L.  R.  A.    (N. 

S.)  276  155 

State  V.  Luff,  24  Del.  152,  74 

Atl.  1079    155 

State  V.  Hoot,  120  la.  238,  94 

N.  W.  564,  9  A.  S.  H.  352.  .      155 


TO   SECTIONS] 

State  V.  Eams,  15  Del.  477, 
41  Atl.  136   156 

State  V.  Gillmon,  69  Me.  163, 
31  Am.  Rep.  257 156 

State  V.  Renfsow,  111  Mo.  589, 

30  S.  W.  359 158 

State   V.    Asher,   50   Ark.   427, 

8  S.  W.  177 158 

State   V.   Evans,  15   Del.  '477, 

41  Atl.  136 159 

State  V.  Henson,  81  Mo.  384..  159 
State  V.  Cooper,   13  N.  J.  L. 

361,  25  Am.  Dec.  490 159 

State   V.  Gilmon,   69   Me.    163, 

31  Am.  Rep.  257,  3  Am.  Cr. 
Rep.  15 159 

State  V.  Walker,  37  La.  Ann. 

560   160 

State  V.  Lane  (Mo.  App.),  193 

S.  W.  948 160 

State  V.  Heaton,  77  N.  C.  505.  160 
State  V.   Mitchel,  27  N.  C,  5 

Ired.  350    161 

State   V.   Evans,   15   Del.   477, 

41   Atl.    136 163 

State  V.  Cooper,   13   N.   J.  L. 

361,  25  Am.  Dec.  490 163 

State  V.   Simmons,   143   N.   C. 

613,  56  S.  E.  701 164 

State  V.   McBrager,   98  N.   C. 

619,  2  S.  E.  755 164 

State  V.   Justus,  11   Ore.   178, 

50  Am.  Rep.  470,  8  P.  337.  .  165 
State  V.  Vance,  17  la.  138...  165 
State  V.  Jones,  79  Mo.  441..  167 
State  V.  Partlon,  90  Mo.  608.  168 
State    V.    Schocnwold,   31    Mo. 

147    1C7 

State    V.    Turner,    Wright    30 

(Pa.)    167 

State  V.  Anderson,  2  Overt.  0, 

5  Am.  Dec.  648 168 

State  V.  Sliirley,  64  N.  C.  610.  168 
State  V.  Reynolds,  11  Neb.  98..  168 
State  V.  Kerby,  26  Kans.  77.  .     170 


Table  of  Cases 


1363 


[references  ari; 

State  V.  Hoyle,  13  Minn.  132.  170 

State  V.  Hopkirk,  84  Mo.  278.  170 

State  V.  Kron,  7  Ore.  186 170 

State  V.  Lopez,  15  Nev.  407..  170 

State  V.  Lewis,  74  Ind.  1 170 

State  V.  Townsend,  6G  la.,  24 

N.  W.  535 170 

State  V.  Lewis,  74  Mo.  222. .  .  170 
State  V.  Johnson,  1  Ired.  354, 

35  Am.  Dec.  742 171 

State  V.  Thorn,  81  N.  C.  555.  172 

State  V.  Babcock,  51  Vt.  570.  172 

State  V.  Watson,  63  Me.  128.  172 

State  V.  Englan,  78  N.  C.  552.  172 
State  V.  Waters,  6  Johns.  N. 

C.  560    173 

State  V.  Wanderford,  35  Fed. 

R.  282  173 

State  V.  Jackson,  12  Ired.  34 

(N.  C.)  329 173 

State  V.  Jones,  95  N.  C.  588.  .  177 

State  V.  Batman,  13  la.  485..  177 

State  V.  Murrey,  43  Ala.  316.  183 

State  V.  Huston,  29  S.  C.  108.  183 

State  V.  Bell,  29  la.  316 183 

State  V.  Mathews,  20  Mo.  55.  187 

State  V.  Cranch,  2  Bailey,  66.  189 
State  V.  Khulman,  152    (Mo.) 

100,  75  Am.  St.  Rep.  438.  .  .  193 
State  V.  Graham,  41  N.  J.  L. 

15,  32  Am.  Rep.  174 195 

State  V.  Roberts,  15  Ore.  187, 

13  Pae.  896   196 

State  V.   Tutt,   2   Bailey  Law 

44,  21  Am.  Dec.  508 199 

State  V.  Ellis,  74  Mo.  385,  Id. 

41  Am.  R.  321 204 

State  V.  McClintock,  1  Green, 

392   205 

State  V.  Rose,  29  Me.  32 205 

State  V.  Larkin,  40  N.  H.  36.  .  205 
State  V.  Martin,  30  Wis.  216, 

11  Am.  Rep.  567 205 

State  V.  Judge  of  Second  Re- 
corder 's   Court,   43    L.    Ann. 

1119   206 


TO   SECTIONS] 
State  V.  Franklin,  La.,  2  South 

539   107 

State  V.  Wiles,  26  Minn.  381.  208 
State  V.  Murrey,  55  la.  530.  .  .  208 
State  V.  Bizzell,  58  N.  U.  257.  208 
State  V.  Lillefield,  70  Me.  452, 

35  Am.  Rep.  335 208 

State   V.  Hall,   50   Ark.   28,   0 

S.  W.   20 209 

State  V.  Gooeb,  60  Ark.  218..  200 
State    V.    Ward,    48    Ark.    36, 

Id.  3  Am.  State  Rep.  213,  2 

S.  W.   191 200 

State  V.  McCoy,  14  N.  H.  364.  211 
State  V.  Scott,  99  la.  36,  68  N. 

W.  451   212 

State  V.  Scott,  99  la.  36 212 

State  V.  Stanton,  23  N.  C.  424  213 
State  V.  Hopkins,  1  Bay.  372.  214 
State  V.  McKee,  1  Bailey  Law, 

651,  21  Am.  Dec.  504 216 

State  Ex  rel.  Rowe  v.  District 

Court,    44    Mont.    318,    119, 

P.    1103,   Ann.   Cas.    1913  B 

369   216 

State  V.  Reed,  52  Ore.  377,  97 

P.  753   216 

State  V.   Cooper,   1   Green,   13 

(N.    J.)    361,    25   Am.    Dec. 

490   217 

State  V.  Sheppard,  7  Conn.  156  217 
State  V.  Damun,  2  Tyler  (Vt.) 

387   217 

State   V.   Fayetteville,  2   Mur- 

phey  (N.  C.)  371 217 

State  V.  Burnham,  7  Conn. 

414  217 

State  V.   Standerfer,  5  Porter 

(Ala.)  523   217 

State    V.    Thurston,    2    McMil- 

lian    (S.   C.)    382 217 

State   V,    Mowser,   N.   J.,   106 

Atl.  416,  4  A.  L.  R.  6951 .  .  .      217 
State  V.  Williams,  10  Humph. 

(Tenn.)    101    218 

State  V.  Nelson,  29  Me.  329..  218 
State  V.  Ray,  33  Am.  Dec.  90.     218 


1364 


Table  of  Cases 


[references  are 

state  V.  Lambert,  9  Nev.  321 .  218 
State  V.  Benham,  7  Conn.  414.  219 
State  V,  Egglesht,  41  la.  574, 

20  Am.  Eep.  612 219 

State  V.  Sampson,  157  la.  257, 
138  N.  W.  473,  42  L.  K.  A. 

(N.   S.)    967 219 

State  V.  Cooper,  1  Green,  N.  J. 

361   220 

State  v.  Sheppard,  7  Conn.  541     220 
State  V.  Damon,  2  Tyler  381.  .      220 
State  V.  Douglas,  26  Nev.  196, 
65  P.  802,  99  A.  S.  E.  688, 

note  124  A.  S.  E.  637 220 

State   V.   Vinco,    34   La.    Ann. 

1072   221 

State  V.  Hays,  67  la.  271,  24 

N.  W.  575 221 

State   V.   Moor.,    12    Am.    Dec. 

547    224 

State  V.  McKee,  1  Bailey  Law. 

651,  21  Am.  Dec.  499,  note.      226 
State  V.  Martin,  30  Wis.   216, 

11  Am.  Eep.  567 226 

State   V.    Eook,   61    Kan.   382, 

59  P.  653,  49  L.  E.  A.  186..      227 
State    V.    Hotel    McCrery    Co., 

68  W.  Va 227 

State  V.  Freeman,  66  N.  C.  47 .  227 
State  V.  Grayham,  1  Pike  428.     227 

State  V.  Foit,  22  la.  140 227 

State  V.  White,  71  Kan,  356, 

80  P.  589,  Am.  Cas.  132 231 

State  V.  Brooks,  3  Humph.  70.  232 
State    V.    Paterno,    9    So.    442 

(La.   Ann.) 232 

State  V.  Battle,  7  Ala.  259.  ..  .  232 
State  V.  Eeed,  26  Conn.  202. . .  232 
State  V.  Green,  16  la.  239. .. .  232 
State  V.  Eedman,  17  la.  239..  232 
State  V.  Vincent,  24  la.  670 .  .  243 
State  V.  Willis,  63  N.  C.  26.  .  .  243 
State  V.   Briscoe,  30  La.   Ann. 

433    243 

State  V.  Dillon  (la.),  38  N.  W. 
535,  74  la.  653 243 


TO    SECTIONS] 

State  V.  Davis,  50  S.  C.  405, 

27  S.  E.  905,  62  A.  S.  K.  837     243 
State  V.   Trivas,  32   La.   Ann. 

1086,  36  Am.  Eep.  293 243 

State  V.  Bowles,  146  Mo.  6,  47 

S.  W.  892,  69  A.  S.  E.  598..     243 
State  V.  Haxsie,  15  E.  I.  1,  2 

A.  S.  E.  838 244 

State  V.  Des  Champs,  42  La. 
Ann.  567,  7  So.  703,  21  A. 

S.  E.  392 244 

State  V.  Thomas,  98  N.  C.  599.     244 
State  V.  Shippey,  10  Minn.  223, 

88  Am.  Dec.  70 244 

State  V.  Briscoe,  30  La.  Ann. 

433 244 

State  V.  Spencer,  2  N.  J.  L. 

196   244 

State  V.  Jarnett,  82  N.  C.  655 .     246 
State  V.  Kelly,  73  Mo.  608...     246 

State  V.  Bobb,  76  Mo.  501 246 

State  V.  Guild,  149  Mo.  370,  50 

S.  W.  909.  73  A.  S.  E.  395.      246 
State  V.  Gentry,  149  Mo.  374, 

73  Am.  St.  Eep.  3911 247 

State    V.    Jacob,    14    Am.    St. 

Eep.  897   247 

State   V.    Filden,    3    Cr.    Mag. 

Cal.  49   248 

State  V.  Williams,  65  N.  C.  399  250 
State  V.  Patton,  42  Vt.  495. .  .  250 
State  V.  Nelson,  29  Me.  329.  .  250 
State  V.  Banks,  48  Ind.  197..  250 
State  V.  Gilmore,  69  Me.  163, 
31  Am.  Eep.  257,  3  Am.  Cr. 

Eep.  15   253 

State  V.  Payton,  70  Mo.   220, 

52  S.  W.  394 253 

State  V.  Murphy,  17  N.  Da.  48, 
15  N.  W.  84,  16  Ann.  Cas. 

1133   253 

State  V.  Levelle,  34  N.  C.  120, 

13  S.  E.  319,  27  A.  S.  E.  779     253 
State  V.  Williams,  14  Ohio  222     254 
State    V.    Salt   Lake    City,    35 
Utah  25,  99  P.  255,  18  Am. 
Cas.  1130   257 


Table  of  Cases 


1365 


[references  ark 
state  V.   Raimsbarger,   91   la, 

746   258 

State  V.  Perrigo,  70  la.  657 ..  .  258 
State  V.  Barnwell,  80  N.  C.  466  258 
State  V.  Wisdom,  84  Mo.  177. .  258 
State  V.  Sherley,  64  N.  C.  610.  258 
State  V.  Knight,  43  Maine  11. 
State   V.    Medley,   66   W.   Va. 

216,  66  S.   E.   358,   18  Ann. 

Cas.  761   258 

State  V.    Merrill,    2   Dev.    (N. 

C.)   L.   269 260 

State  V.  Northcut,  48  la.  583.  260 
State  V.  Jones,  2  N.  W.  Eep. 

1060   260 

State  V.  Linley,  51  la.  343...  260 
State  V.  Swain,  68  Mo.  005. . .  260 
State  V.  Dobbins,  152  la.  632, 

132  N.  W.  805,  42  L.  E.  A. 

(N.   S.)    735    260 

State  V.  Saunders,  76  Mo.  35. .  262 
State  V.  Dupeor,  31  La.  Ann. 

804    262 

State  V.  Poe,  123  la.  118,  98 

N.  W.  287,  101  A.  S.  R.  307.  262 
State  V.  Duncaw,  7  Wash.  336, 

38  A.  S.  E.  888,  35  P.  117..  262 
State  V.  Phillips,  24  Mo.  475.  262 
State  V.  Sheffield,  43  Tex.  370.  263 
State  V.  Barber,  36  U.  S.  313.  265 
State  V.  Gould,  26  W.  Va.  258  265 
State  V.  Furney,  41  Kan.  115, 

13  A.  S.  R.  262,  21  P.  213. .  267 
State  V.  Johnson,  118  Mo.  401, 

40  A.  S.  R.   405,  25  S.  W. 

229    267 

State  V.   Meyer,   65   N.   J.   L. 

237,  47  Atl.  486,  86  A.  S.  E. 

634  and  note 267 

State  V.  Jefferson,  20  Am.  Dec. 

534,  6  Ired.  (N.  C.)  305...  270 
State   V.   Gould,   10   N.   J.   L. 

163,  18  Am.  Dec.  404 270 

State  V.  Patterson,  73  Mo.  705.  271 
State  V.  Knowles,  48  la.  598.  .  271 
State  V.  Abrams,  131  la.  479, 

108  N.  W.  1041 272 


TO   sections] 

state  V.  Martener,  20 ,  3.  272 

State  V.  Lamb,  28  Mo.  218...  272 
State  V.  Knapp,  70  Ohio  State 

380,   71   N.    E.   751,    1    Ann. 

Cas.  819   272 

State  V.  Kelley,  206  Mo.  685, 

12  Ann.  Cas.  681 272a 

State    V.    Ilollenchat,    61    Mo. 

302   273 

State  V.  Elliott,  15  la.  723 273 

State  V.  Nahone,  32  Vt.  241..  273 

State  V.  Isaac,  3  La.  Ann.  359.  273 
State  V.    Covington,    2    Bailey 

(S.  C.)   569 273 

State  V.  Gelabut,  39  Cal.  663.  273 

State   V.    Busse,    127    la.   318,  ' 

100  N.  W.  536 273 

State  V.  Calvin,  226  Mo.  446, 

126  S.  W.  448 273 

State  V.  Knowles,  48  la.  598..  274 

State  V.  Davidson,  30  Vt.  377.  274 

State  V.  Brite,  73  N.  C.  26.  .  .  275 

State  V.  Dunkin,  64  Mo.  262.  275 

State  V.  Vance,  8  N.  C.  631. . .  275 
State  V.  Jay,  116  la.  264,  89 

N.  W.  1070 276 

State  V.  Brookman,  46  Mo.  566  276 
State   V.   Whitfield,    70    N.    C. 

356   276 

State  V.  Dye,  36  Nev.  143,  133 

P.  935    276 

State    V.    Farthington,    43    la. 

494   277 

State  V.  George,  15  La.  Ann. 

145   277 

State  V.  Cruse,  74  N.  C.  491.  .  278 

State  V.  Com.,  55  Vt.  513 279 

State  V.  Howard,  17  N.  H.  171  279 

State  V.  Porter,  18  Conn.  166.  279 
State    V.    Guild,    10   N.    J.   L. 

163   279 

State  V.  Mills,  1  N.  C.  428 279 

State  V.  Carrick,  16  Nev.  120.  279 

State  V.  Patterson,  73  Mo.  696  279 

State  V.  Branham,  13  S.  C.  389  279 
State  V.  Wentworth,  37  N.  H. 

196   281 


1366 


Table  of  Cases 


[references  are 
State  V.  Johnson,  30  La.  Ann. 

1881  281 

State  V.  Sopher,  70  la.  494. . .  282 

State  V.  Pratt,  20  la.  267 284 

State  V.  Eeed,  62  He.  129 284 

State  V.  Perkins,  3  Hawks  (N. 

C.)   377    284 

State  V.  Edward,  13  S.  C.  30.  285 
State  V.  Beknapp,  39  W,  Va. 

427,  19  S.  E.  507 285 

State  V.  Dodson,  16  S.  C.  453.  287 

State  V.  Fuller,  39  Vt.  74 287 

State    V.    Warkman,    15   S.    C. 

541    287 

State  V.   Foster,   136   la.   527, 

114  N.  W.  361 288 

State  V.  Lowery,  170  N.  C.  730, 

87  S.  E.  62 288 

State  V.  Busse,  127  la."  318..  288 
State  V.  Miller,  68  Wash.  239, 

46  A.  752 288 

State  V.  Knop,  70  Ohio  380,  71 

N.  E.  705,  1  Ann.  Gas.  819. ,  288 
State  V.  Garrey,  25  La.  Ann. 

191  ' 289 

State  V.  Staley,  14  Minn.  105.  291 

State  V.  James,  54  Mo.  478.  . .  291 

State  V.  Guild,  10  N.  J.  L.  163  292 

State  V.  Frcdricks,  85  Mo.  145  292 
State  V.   Guar,   28   Minn.   426, 

41  Am.  Rep.  296 292 

State  V.  Eush,  95  Mo.  1995,  8 

S.  W.  221 292 

State  V.  Ilodgkins,  19  Me.  155  295 

State  V.  Libbey,  44  Mc.  469.  .  295 
State  V.  Lash,  1  Harr.  (N.  J.) 

380    295 

State  V.  Hilton,  3  Rich.  (S.  C.) 

424     295 

State    V.    Uritton,    4    McCurd, 

(S.  C.)   2.16 295 

State  V.  Abbey,  29  Vt.  60 295 

State    V.    West,    45    La.    Ann. 

928   296 

State  V.  Nichold.  25  Ark.  74. .  300 

State  V.  Murrell,  16  Ark.  384 .  300 


TO   SECTIONS] 

State  V.  Douglass,  26  Wis.  428, 

7  Am.  Rep.  87 300 

State  V.  Messmore,  14  Wis.  163     300 
State     V.     Farley,     8     Blackl. 

(Ind.)   229    302 

State  V.  Mooney,  74  N.  C.  98.     302 
State   V.   Wolfer,   53    (Minn.) 

135,  39  Am.  St.  Rep.  582.  .  .     303 
State   V.    Barnes,    17    Am.    St. 

Rep.  832    303 

State    V.    Chanclor,    1    Strabb 

347,  47  Am.  Dec.  557 303 

State   V.   Smith,    19   Am.   Dec. 

679    303 

State  V.  Noore,  62  Mich.  496.  303 
State  V.  Merrill,  16  Ark.  384..     304 

State  V.  Lock,  5  Ind.  359 305 

State  V.  Nicholds,  26  Ark.  74, 

7  Am.  Rep.  600 305 

State   V.  Barnes,  32   S.   C.   14, 

17  Am.  St.  Rep.  832,  32  S. 

C.  14   308 

State  V.  Sauvenet,  24  La.  Ann. 

119,  13  Am.  Rep.  115 310 

State  V.  People,  25  111.  17,  76 

Am.  Dec.   780 319 

State      V.     Wilson,     2     Eoot 

(Conn.)    62    319 

State  V.  Watson,  8  S.  W.  383 .  321 
State  V.  Everhart,  104  N.  Y. 

591    322 

State    V.    Eisenhour,    132    Mo. 

140   322 

State  V.  Fallen,  79  Wash.  165, 

126  Pac.  705 323 

State  V.  Fallen,  77  Wash.  165, 

176  Pac.  75 323 

State  V.  James,  37  Conn.  355.  324 
State  V.  Carter,  2  Ind.  204...  325 
State  V.  Roth,  17  La.  336.  .  .  .  327 
State  V.  Roth,  17  Iowa  336.  .  .  328 
State  V.  Marvin,  35  N.  II.  22.  328 
State  V.  Lash,  16  N.  J.  L.  380, 

32  Am.  Dec.  397 328 

State  V.  Cooper,  16  Vt.  551. .  .  328 
State  V.  Kosky,  121  Iowa  507, 

96  N.  W.  1115 329 


Table  of  Cases 


i;iG; 


[references  ar:: 
State  V.   Fellows,  50  Wis.  65, 

6  N.  W.  239 329 

State  V.  Lash,  1  Harrison  380, 

32  Am.  Dec.  397 329 

State  V.  Ellis,  74  Mo.  385,  41 

Am.  Rep.  321 331 

State  V.  Sanders,  30  la.  582.  .  331 
State  V.  Donavan,  61  la.  278, 

16  N.  W.   130-206 331 

State    V.    Cutshall,    109   N.    C. 

764.  Am.  St.  Rep.  599,  14  S. 

E.  107 331 

State  V.  Warren,  57  Mo.  App. 

502   332 

State  V.  Weekly,  29  Ind.  206.  333 
State  V.  Billings,  72  Mo.  662. .  333 
State  V.  Perry,  50  N.  C.  9,  69 

Am.  Dec.  768 334 

State    V.    Faining,    94    N.    C. 

940,  53  Am.  Rep.  653 334 

State  V.  Davis,  80  N.  C.  351, 

30  Am.  Rep.  86 334 

State    V.    Huntley,    25    N.    C. 

(Ired.)    418,    40    Am.    Dec. 

416    335 

State    V.    Summer,    5    Straub. 

53     335 

State  V.  Laneir,  71  N.  C.  288.  335 
State  V.  Huntley,  40  Am.  Dec. 

416   335 

State  V.  Snow,  18  Me.  346...  337 
State  V.  Show,  79  Me.  306,  100 

Pac.   78,   131  A.  S.  R.   298, 

21  L.  R.  A.   (N.  S.)    27...     338 
State  V.  Young,  139  Ala.  136, 

36  So.  19,  101  A.  S.  R.  21..     338 
State  V.  Mortin,  87  Neb.  529, 

127   N.   W.   896,   Ann.   Cas. 

1912  A    1125    338 

State  V.  Jim,  8  Jones  L.    (N. 

C.)  459  339 

State  V.  Stewart,  6  Conn.  47..  339 
State  V.  Fish,  27  N.  J.  L.  323 .  339 
State  V.  Porter,  90  N.  C.  719.  340 
State  V.  Kenna,  63  Conn.  329, 

28  Atl.   522 342 


TO   SECTIONS] 

State  V.  Toole,  29  Conn.  , 

76  Am.  Dec.  602 342 

State    V.    Sarvis,    55    Am.    St. 

Rep.  806,  32  L.  R.  A.  647.  .  342 
State  V.  Haynes,  66  Me.  307, 

22  Am.  Rep.  569 342 

State  V.  Hannet,  54  Vt.  83 342 

State    V.    Sarvis,    55    Am.    St. 

Rep.  806,  32  L.  R.  A.  647. .  342 
State  V.  Sarvis,  45  S.  C.  668, 

24    S.    E.    53,    55    A.    S.    R. 

806,  32  L.  R.  A.  647 342 

State  V.  Shaw,  79  Kans.  396, 

100   Pac.    78,   131    A.   S.   R. 

298,  21  L.  R.  A.  (N.  S.)  27.  342 
State    V.    McGown,    20    Conn. 

245,  52  Am.  Dec.  336 342 

State  V.  Haynes,  66  Me.  307, 

22  Am.  Rep.  569 343 

State   V.   Show,    70  Kan.   306, 

100   Pac.    78,    131    A.   S.   R. 

208,  21  L.  R.  A.  (N.  S.)  27, 

81    Am.    Dec.    70,    16    Ann. 

Cas.   807,  see   101   A.   S.   R. 

27    343 

State  V.  Hall,  93  N.  C.  57...  344 
State    V.    McGown,    20    Conn. 

245   345 

State  V.  Wolfinger,  20  Ind.  242  345 
State  V.  Johnson,  19  la.  233.  345 
State  V.  Young,   101   Am.   St. 

Rep.    24    345a 

State  V.   Taylor,  47  Ore.  455, 

84  Pac.  828,  Ann.  Cas.  627, 

4  L.  R.  A.  (N.  S.)  417....  345a 
State  V.  Dumas,  118  Minn.  77, 

136  N.  W.  814,  41  L.  R.  A. 

(N.  S.)  430,  6  L.  R.  A.   (N. 

S.)    805    345a 

State  V.   Taylor,  47  Ore.  455, 

84  Pac.  828,  Ann.  Cas.  627, 

4  L.  R.  A.  (N.  S.)  417....  345a 
State  V.  Bowers.  35  S.  C.  262, 

14   S.   E.   488,   28   A.   S.   R. 

847,  15  L.  R.  A.  199 345a 

State    V.    McLain,    43    Wash. 

267,   86   Pac.   390,    10   Ann. 


1368 


Table  of  Gases 


[references  are 

Cas.  321   345a 

State  V.  Blackwell,  9  Ala.  79..     346 
State  V.  Shepard,  10  la.  106. .     346 
State  V.  Mitchell,  170  Mo.  633, 
71    S.   W.    175,   94   Am.    St. 

Kep.  763 347 

State  V.  Baker,  65  N.  C.  332.  348 
State  V.  Johnson,  17  Tex.  515, 

19  Am.  Eep.  350 348 

State    V.    Sims     (S.    C),    35 

Strob.  137    348 

State    V.    Shipman,    81    N.    C. 

513    348 

State  V.  Eowls,  65  N.  C.  334. .  348 
State    V.    Davis,    1    Ired.    (N. 

C.)  125,  35  Am.  Dec.  735..  349 
State  V.  Martin,  30  Wis.  216.  349 
State    V.    Shipman,    81    N.    C. 

513    349 

State  V.  Eowls,  65  N.  C.  334.  349 
State  V.  Blackwell,  9  Ala.  79.  349 
State  V.  Daniel,  136  N.  C.  571, 

48  S.  E.   544,  103   A.   S.   E. 

970    349 

State  V.  Godfry,  17  Ore.  300, 

20  Pac.  625,  11  A.  S.  E.  830  349 
State  V.  Martin,  85  N.  C.  508, 

39  Am.  Eep.  711 350 

State  V.  Herron,  12  Mont.  230, 

20  Pac.  810,  33  A.  S.  K.  576  351 
State  V.  Daniel,  136  N.  C.  571, 

48  S.  E.   544,   103   A.   S.  R. 

970   351 

State  V.  Herron,  12  Mont.  230, 

33  A.  S.  E.  576 351 

State    V.    n.-unptoii,    03    N.    C. 

13    352 

State  V.  Church,  63  N.  C.  15.  .      352 

State  V.  Crow,  1  Ired.  375 354 

State  V.  Vannoy,  65  N.  C.  532.  354 
State    V.    Shipman,    81    N.    C. 

513    354 

State  V.  Blackwell,  9  Ala.  79.  354 
State  V.  Martin,  85  N.  C.  508, 

39  Am.  Eep.  711 354 

State   V.   Davis,  80  N.  C,   351, 

30  Am.  Rep.  86 356 


TO   SECTIONS] 

State  V.  steel,  106  N.  C.  766, 

11    S.    E.    478,    19    Am.    St. 

Eep.  573,  8  E.  L.  A.  516. .  .  356 
State  V.  Steel,  106  N.  C.  766, 

11   S.   E.   478,   10   A.   S.    E. 

573,  8  L.  E.  A.  516 356 

State  V.  Kindry,  20  la.  567..  356 
State  V.  Steel,  19  Am.  St.  Eep. 

573    356 

State  V.  Chovin,  7  la.  204....  356 
State  V.  McDonald,  7  Mo.  App. 

510    356 

State  V.  Steele,  106  N.  C.  766, 

19  Am.   St.   Eep.   580 357 

State  V.  Steele,  106  N.  C.  766, 

19  Am.  St.  Eep.  573 358 

State  V.  Steele,  106  N.  C.  766, 

11    S.   E.   478,    10   A.   S.   E. 

573,  8  L.  E.  A.  516 358 

State  V.  Williams,  27  Vt.  755.  359 
State   V.    Misner,   50    la.    145, 

32  Am.  Eep.   128 359 

State  V.  Alvord,  68  N.  C.  332.  359 
State  v.  Snowden,  12  Tex. 

App.  105,  42  Am.  Eep.  245.  259 
State  V.  Young,  52  Ore.  227, 

96  Pac.  1067,  132  A.  S.  E. 

689,  18  L.  E.  A.  (N.  S.) 

688  360 

State  V.  Bright,  10  Tex.  App. 

68  361 

State  V.  Sheppard,  10  la.  126  361 
State  V.  Totman,  80  Mo.  125.  .  361 
State  V.  Swails,  8  Ind.  524...  364 
State  V.  Wilson,  30  Conn.  500.  364 
State  V.  Jordon,  75  N.  C.  27.  364 
State  V.  Calvin,  9  N.  C.  717.  .  364 
State  V.  Bailer,  26  W.  Va.  90.  364 
State  V.  Mitchell,  170  Mo.  633, 

71   S.  W.   175,   94   A.   S.   E. 

763    364 

State   V.   Tayler,   47   Ore.   455, 

84    Pac.    82,    8    Ann.    Cas. 

627,  4  L.  E.  A.  (N.  S.)  417.  364 
State    V.    Hurley,    79    Vt.    28, 

64  Atl.  78,  118  A.  S.  E.  934, 

6  L.  R.  A.  804 366 


Table  of  Cases 


1361) 


[KKJ'EREN'CE.S    akk 

state  V.  Wilson,  30  Conn.  500.  364 
State  V.  Jordon,  75  N.  C.  27. .  364 
State  V.  Calvin,  9  N.  C.  717.  .  364 
State  V.  Bailer,  26  W.  Va.  90.  364 
State  V.  Miteliel,  170  Mo.  633, 

71    S.  W.    175,   94   A.   S.  E. 

763    364 

State  V.  Tayler,  47   Ore.  455, 

84  Pac.  82,  8  Ann.  Cas.  627, 

4  L.  R.  A.  (N.  S.)  417 364 

State  V.  Hurley,  79  Vt.  28, 

64  Atl.  78,  118  A.  S.  E.  934, 

6  L.  R.  A.  804 365 

State  V.  Avery,  7  Conn.  266..  366 
State  V.  Wilson,  30  Conn.  500.  368 
State  V.  Summer,  2  Spur.  599.  370 
State  V.  Swails,  65  Am.   Dec. 

772,  8   Ind.  524 371 

State  V.  Donovan,  28  Del.  40, 

90  Atl.  20   371 

State  V.  Sulivan,  110  Mo.  App. 

75,  84  S.  W.  105 372 

State  V.  Kendall,  73  la.  255,  5 

A.  S.  R.  677,  34  N.  W.  843.  373 
State   V.   Jarvis,   20   Ore.   437, 

23  A.  S.  R.  141,  26  Pae.  302  373 
State  V.  Oilman,  31  Am.  Rep. 

257,  69  Me.  118 374 

State  V.  Marshall,  14  Ala.  411  375 
State  V.  Allen,  47  Conn.  121.  376 
State  V.  Hays,  78  Mo.  307...  376 
State  V.  Eleck,  7  Johns.  68.  . .  376 
State    V.    Beal,    37    Ohio    St. 

108,  41  Am.  Rep.  490 377 

State  V.  Mitchel,  170  Mo.  633, 

71   S.  W.    175,  94   A.   S.   R. 

763    377 

State  V.  Fitzgerald,  40  La.  260, 

31  Am.  Rep.  148 377 

State   V.    Boon,    57    Am.    Dee. 

555   378 

State  V.  Elick,  52  N.  C.  68. .  .  378 
State  V,  Hayes,  78  Mo.  307. .  .  378 
State  V.  McHaffey,  132  N.  C. 

1062,  44  S.  E.  107 378 

State   v.   Williams,   121   N.   C. 

628,  28  S.  E.  405 378 


TO   .SECTIONS J 

State  V.  Chitty,  1  Bailey  379.  380 
State  v.  Stewart,  194  Mo.  245, 

92  S.  W.  878,  112  A.  S.  E. 

529,  5  Ann.  Cas.  963 388 

State  V.  Sniffin,  44  Wash.  485, 

12   Ann.   Cas.    113,   87   Pac. 

837,  120  A.  S.  R.  1009 389 

State    V.    Johnson,    12    Minn. 

476,  93  Am.  Dec.  244 389 

State  V,  Cooper,  103  Mo.  266, 

15  S.  W.  327 389 

State    V.    Bently,    75    Vt.    163, 

53    Atl.    1068 389 

State   v.   Davis,   14   S.   E.    (N. 

C.)  55   391 

State  v.  Cooper,  15  S.  W.  327.  391 
State  V.  Bittick,  15  S.  W.  325.  391 
State  V.  Zichfeld,  23  Nev.  304, 

46    Pac.    802,    62    A.    S.    R. 

800,  34  L.  R.  A.  784 392 

State  V.  Abbey,  29  Vermont  60  393 
State    V.    Johnson,    12    Minn. 

476   393 

State   V.   Cutchall,    110   N.    C. 

538,  15  S.  E.  261,  16  L.  E. 

A.   130    398 

State  ".  Kay,  151  N.  C.  710, 

66  S.   E.  204,  134  A.  S.  R. 

1005,  10  Ann.  Cas.  556 398 

State  V.  Stewart,  194,  Mo.  345, 

92  S.  W.  878,  112  A.  S.  R. 

529,  5  Ann.  Cas.  963 398 

State   V.   McDonald,    6   N.    E. 

607,   Ind 400 

State  V.  Keys,  8  Vt.  57 400 

State  V.  Carpenter,  20  Vt.  9.  400 
State  V.  Binbaset,  32  Mo.  276.  400 
State  V.  Howard,  66  Minn.  309, 

68  N.  W.  1096,  61  A.  S.  R. 

403,  34  L.  R.  A.  178 402 

State  V.  Ellis,  33  N.  J.  L.  102, 

97  Am.  Dec.  713 403 

State  V.  Keys,  8  Vt.  57 403 

State    V.    Ellis,    97    Am.    Dec. 

713,  33  N.  J.  L.  707 403 

State    V.    Jackson    (Mc.),    40 

Am.   Kcp.  342 404 


1370 


Table  of  Cases 


[references  are 

state  V.   Pendy,  36  Wis.   224, 

17  Am.  Eep.  485 404 

State  V.  Collins,  72  Mo.  13...     4U4 
State  V.  Lehman,  182  Mo.  424, 
81  S.  W.  1118,  103  A.  S.  R. 

689,  66  L.  K.  A.  400 404 

State  V.  Ellis,  33  N.  J.  L.  102, 

97  Am.  Dec.  707 406 

State  V.  Bowles,  70  Kans.  821, 

69  L.  E.  A.  176 406a 

State  V.  Ellis,  33  N.  J.  L.  102, 

97  Am.  Dec.  707  and  note. .  407 
State  V.  Weber,  56  S.  W.  893 . .  409 
State  V.  Jenkins,  50  N.  C.  430     409 

State  V.  Dan,  18  Nev.  345 409 

State    V.    Williams,    21    S.    E. 

721   409 

State  V.  Reid,  20  la.  413 411 

State  V.  Vierck,  23  S.  D.  166, 
120  N.  W.  1098,  139  A.  S. 

R.  1040  and  note 411 

State  V.  Abbey,  109  la.  61,  80 
N.  W.  225,  77  A.  S.  R.  520, 

46  L.  R.  A.  862 412 

State    V.    Stickney,    53    Kans. 
308,  36  Pac.  714,  42  A.  IS.  K. 

284   412 

State  V.  Carrie,  13  N.  D.  655, 
102  N.  W.  875,  112  A.  S.  R. 

687,  69  L.  R.  A.  405 412 

State    V.    Abbey,    109    la.    61, 
80  N.  W.  225,  77  A.  S.  R. 

520   414 

State    V.    Hayes,   105   Mo.    76, 

24  A.  S.  R.  360 415 

State  V.  Cooper,  16  Vt.  551..  416 
State  V.  Ryan,  12  Nev.  401.  .  .  416 
State   V.   Lymus,   26   Ohio    St. 

400   416 

State   V.   Bullett,   64   N.   J.   L. 

379    416 

State  V.  Leaden,  35  Conn.  515.  417 
State  V.  Scymore,  36  Me.  225.      417 

State  V.  Ruby,  61  la.  86 417 

State  V.  Young,  12  N.  C.  357, 
17  Am.  Dec.  571...'. 418 


TO   SECTIONS] 

State  V.  Stuart,  59  Vt.  273,  9 

Atl.  550,  59 Am.  Rep.  710.  .  .  418 
State  V.  Assurance  Co.,  251 
Mo.  278,  158  S.  W.  640,  16 

L.  R.  S.  (N.  S.)  955 418 

State  T.  Stewart,  50  Vt.  273, 

9  Atl.  550,  50  Am.  Rep.  710     418 
State  V.  Norton,  26  N.  J.  L. 

33  and  34 419 

State  V.  Biddle,  12  Minn.  164.  419 
State   V.    Ohio    R.   E.    Co.,    23 

Ind.  363   419 

State  V.  Rowby,  12  Conn.  101 .  419 
State  V.  Murray,  15  Me.  100. .  420 
State    V.    Cawood,    2ud    Stew. 

360   420 

State  V.  Sitter,  57  Conn.  461, 

18  Atl.  782,  14  A.  S.  R.  12.  420 
State  V.   Blackman,  5  Har.  & 

J.  317   420 

State  V.  Strow,  42  N.  H.  392.  420 
State   V.    Ritchie,    9    N.    J.   L. 

293    420 

State  V.  Noyes,  25  Vt.  415...  420 
State  V.  Noyes,  25  Vt.  415-421  421 
State  V.  Mayberry,  48  Mo.  218  421 
State   V.   Murphy,   6   Ala.   765, 

41  Am.  Dec.  79 421 

State  V.  Muney,  15  Me.  100. . .  421 
State  V.   Sitter,  57   Conn.  461, 

18  Atl.  782,  14  A.  S.  R.  121.  421 
State  V.  Glidden,  55  Conn.  46, 

8  Atl.  800,  3  A.  S.  R.  23...  424 
State  V.   Switzcr,   63   Vt.   604, 

25  A.  S.  R.  789,  22  Atl.  724  424 
State  V.  Rickey,  9  N.  J.  1293 .  425 
State  V.  DeWitt,  2  Hill  S.  C. 

282,  27  Am.  Dec.  371 425 

State  V.  Crowley,  41  Wis.  271, 

22  Am.  Rep.  719 425 

State  V.  ITickling,  41  N.  J.  L. 

208   426 

State  V.  Coward,  Slaw.  360.  .  .  426 
State    V.    Donalson,    3    Vroom. 

151    427 

Stale  V.  McNally,  56  Am.  Dec. 
650   427 


Table  of  Cases 


1371 


[rkferences  ark 
State  V.  Murphey,  41  Am.  Dec. 

79   ; 427 

State  V.  Cole,  39  N.  J.  L.  324.  427 
State  V.  Gliddeu,  55  Conn.  46, 

8  Atl.  800,  3  A.  S.  R.  23 427 

State  V.  Davis,  88  S.  C.  229,  70 

S.  E 427 

State  V.  Huegin,  110  Wis.  189, 

85  N.  W.  1046,  62  L.  R.  A. 

700   428 

State  V.  Dewitt,  2  Hill  283 .. .  429 
State  V.  Noyes,  25  Vt.  415 .. .  429 
State  V.  Bartlett,  30  Me.  132.  429 
State  V.  Donalson,  32  N.  J.  L. 

151,  90  Am.  Dec.  649 430 

State  V.  Wilson,  30  Conn.  507.  430 
State  V.  Glidden,  55  Conn.  76, 

3  Am.  Rep.  23 430 

State   V.    Stockford,    77   Conn. 

227,  58  Atl.  760,  107  A.  S. 

E.  28 430 

State  V.  Stewart,  59  Vt.  273, 

9  Atl,  550,  69  Am.  Rep.  710  430 
State   V.   Duncan,  78   Vt.   364, 

63    Atl.    225,    112    A.    S.   E. 

922,  6  Ann.   Cas.   602,  4  L. 

E.  A.  (N.  S.)  1144 430 

State  V.  Stewart,  59  Vt.  373,  9 

Atl.  550,  59  Am.  Eep.  710.  431 
State   V.   Duncan,   78   Vt.   264, 

63  Atl.  225,  12  A.  S.  R.  922, 

6  Ann.  Cas.  602,  4  L.  R.  A. 

(N.  S.)  1144 431 

State  V.  Van  Pelt,  136  N.  C. 

663,   40  S.   E.    177,   1   Ann. 

Cas.  495,  68  L.  R.  A.   760, 

note  to  1  Am.  Cas.  508 431 

State  V.  Glidden,  55  Conn.  46.  431 
State  V.  Glidden,  55  Conn.  46, 

Am.   &   Eng.   Enc.   Law   pp. 

609-609   432 

State  V.  Stewart,  59  Vt.  273,  9 

Atl.  550,  59  Am.  Rep.  710.  432 
State  V.  Van  Pelt,  136  N.  C. 

663,  40  S.  E.  177,  Ann.  Cas. 

495,  68  L.  R.  A.  760 432 


TO   SECTION.S] 

State   V.    Stockford,   77   Conn. 
227,  58  Atl.  769,  107   A.  S. 

R.  28  432 

State  V.  Paten,  28  la.  554 434 

State  V.  Mayberry,  48  Me.  218     434 
State    V.    Barham,    15    N.    H. 

396    434 

State    V.    Ormiston,    66    Iowa 

143,  27  N.  W.  37 435 

State  V.  Barglett,  30  Me.  132.     435 
State  V.  Noyes,  25  Vt.  415...     435 
State  V.   Van  Pelt,   136  N.   C. 
633,  49  S.  E.  177,  1  Am.  Cas. 

495,  68  L.  R.  A.  760 435 

State   V.   Stewart,  59  Vt.   273, 
9    Atl.    559,    59    Am.    Rep. 

710    435 

State  V.  Crowley,  41  Wis.  271, 

22   Am.   Rep.   719 435 

State  V.  WUson,  30  Conn.  500.     436 
State  V.  Reply,  31  Me.  389.  .  .      436 
State  V.  Buchanan,  5  Harrison 
and   Johnson   317    (Md.j,   9 
Am.  Dec.  531,  p.  571,  note 

and  authorities   436 

State  V.  Huegin,  110  Wis.  189, 
85  N.  W.  1046,  62  L.  R.  A. 

700   436 

State  V.  Crowley,  41  Wis.  271.  437 
State   V.   McCahill,  30  N.  W. 

Rep.  553    439 

State  V.  Jackson,  7  S.  C.  283.  440 
State     V.     Buchanan,     35    La. 

Ann.  89   442 

State  V.  Larkiu,  49  N.  H.  44.  442 
State  V.  Nash,  7  Iowa  347-84.  442 
State  V.  Weaver,  57  Iowa  730, 

11  N.  W.  675 443 

State  V.   Taylor,  70  Vt.   1,  39 
Atl.   447,   67   A.   S.    R.    648, 

42  L.  R.  A.  673 443 

State  V.  Ross,  29  Mo.  32  50.  .  .  443 
State  V.  Crowley,  33  La.  Ann. 

672    443 

State  V.  McKensic,  42  Me.  392  445 
State  V.  Moore,  6  Ind.  436...      447 


1372 


Table  of  Cases 


[references  are 
state    V.    Mathews,    37    N.   H. 

450   450 

State  V.  White,  T,  M.  T,  Cholt 

136   456 

State  V.  Capp,  15  X.  H.  212..     456 
State  V.  Middlebrook,  43  Conn. 

257   456 

State  V.  Woodfine,  5  Ired.  199.     456 
State    V.    King,    17    La.    Ann. 

696,  17  So.  254,  49  A.  S.  E. 

374   458 

State    V.    Superior    Court,    56 

Wash.  649,  106  Pac.  150,  28 

L.  E.  A.   (N.  S.)   576 459 

State  V.  Bland,   189  Mo.   197, 

88    S.   W.    28,   3    Ann.    Cas. 

1044   459 

State  V.  Towle,  42  N.  N.  540 . .     459 
State  V.  Galloway  &  Ehea,  98 

Am.  Dec.  411   460 

State  V.  Marrell,  16  Ark.  384.     460 
State  V.  Woodfin,  Ired.  152,  42 

Am.  Dec.  161  and  note 460 

State  V.  Galloway  &  Ehea,  98 

Am.  Dee.  404 461 

State  V.  Brewster,  7  Vt.  118..     461 

State  V.  Johnson,  2,  385 462 

State    V.    Galloway,    5    Cold. 

(Tenn.)    326,    98    Am.    Dec. 

404   462 

State  V.  Sauvinet,  24  La.  Ann. 

119,   13   Am.  Eep.   115 464 

State    V.    Thurmond,    37    Tex. 

340   464 

State   V.    Trugwell,    10    Wash. 

238,  52  Pac.  1056,  43  L.  E. 

A.    717    466 

State  V.  Frew,  24  W.  Va.  416.     466 
State   V.   Gibson,   W.    Va.,    10 

S.  E.  58 467 

State  V.  Crumm,  7  N.  D.  299 .  .     467 
State  V.  Garland,  25  La.  Ann. 

532   467 

State   V.   Kaiser    (Ore.),   8   L. 

R.    A.    584,    note    586    and 

cases  there  cited 468 


TO   SECTIONS] 

State  V.  Shepherd,  177  Mo. 

205,  76  S.  W.  79,  99  A.  S. 

E.  624  468 

State  V.  Johnson,  77  Ohio  St. 

461,  83  N.  E.  702,  21  L.  E. 

A.    (N.   S.)    905 468 

State  V.  Hutchings  (Han.),  26 

P.  937    469 

State      V.      Vincent,      26      P. 

(Kans.)    939    469 

State  V.  Woodfin,  5  Ired.   (N. 

C),  42  Am.  Dec.  161 470 

State    V.    Mathews,   37   N.   H. 

400   470 

State  V.  Morrill,  16  Ark.  384.  472 
State  V.  Merritt,  5  Sneed  67 .  .  474 
State  V.   Morris,   33   N.   J.   L. 

142   474 

State    V.    McEntyre,    3    Ired. 

(N.  C.)  171 475 

State    V.    Celeman,    99    Minn. 

487,  110  N.  W.  5,  116  A.  S. 

E.  441,  note 476 

State  V.  Singo,  89  Ind.  264.  .  .  479 
State  V.  Moyer,  58  W.  Va.  146, 

52  S.  E.  30,  6  Ann,  Cas.  344  479 
State  V.  Buttler,  26  Minn.  90.  481 
State  V.  Wingo,  89  Ind.  202..  481 
State  V.   Parmer,  32  La.  Ann. 

565    481 

State  V.   Polard,  33  La.   Ann. 

524    481 

State  V.  Staler,  36  la.  321 482 

State  V.  Orwing,  24  la.  102..     482 

State  V.  Sage,  22  Idaho 482 

State  V.  Farley,  7  W.  Va.  100, 

76  S.  E.  132,  42  L.  E.  A.  (N. 

S.)  498   282 

State    V.    Tumcy,    3    Cr.    Lw, 

Mag.  504    483 

State  V.  Williamson,  21  L.   E. 

A.  527,  118  Mo.  146 483 

State  V.  Casey,  207  Mo.  1,  105  484 
State  V.  Costin,  4  Am.  Cr.  Rep. 

169,    89    N.    C.    511 485 


Table  of  Cases 


1373 


[RErEBENCES    ARE 

State  V.  Roubles,  43  La.  Ann. 

200,  9  So.  435,  20  A.  S.  R. 

179    487 

State  V.  Farley,  71  W.  Va.  100, 

76   S.   E.   134,   42   L.   R.   A. 

(N.  S.)   498 487 

State  V.  Belden,  35  La.  Ann. 

823     487 

State  V.  Brandt,  41  la.  593..  487 
State    V.    Farley,    71    W.    Va. 

100,  76  S.  E.  134,  42  L.  R. 

.     A.    (N.   S.)   498 488 

State  V.  Meyer,  58  W.  Va.  146, 

52  S.  E.  30,  6  Ann.  Cas.  344.  489 
State  V.  Bryan,  75  N.  C.  104.  489a 
State  V.  Foster,  37  la.  146...  490 
State  V.  Lyon,  45  N.  Y.  L.  272  491 
'state  V.   Sage,  22   Idaho  489, 

126    Pac.     403,    Ann.     Cas. 

1914  B   251    491 

State  V.  McFetridge,  84  Wis. 

473,  54  N.  W.  1,  998,  20  L. 

R.  A.  223 491 

State   V,   Beach,   147   Ind.   74, 

43   N.  E.   940,  36  L.   R.   A. 

170   491 

State  V.  Trolson,  21  Nev.  419, 

9  Am.  Cr.  Rep.   243 491 

State  V.  Pratt,  98  Mo.  482. .. .  491 
State  V.  Combs,  47  Kans.  136.  491 
State  V.   Patterson,   66   Kans. 

447   491 

State    V.    Noland,    19    S.    W. 

(Mo.)   715    491 

State  V.  Pierce,  42  N.  W.  181, 

77    la.    245 491 

State  V,  Duerksen,  8  Okla.  Cr. 

Rep.  601,  129  Pac.  881,  52 

L.  R.  A.   (N.  S.)    1013  and 

note    492 

State  V.  Boxter,  Ohio  St.,  104 

S.  E.  331,  52  L.  R.  A.  1019, 

note  1025   492 

State  V.  Renick,  33  Ore.  584, 

56    Pac.    275,    72    A.    S.   R. 

758,  44  L.  R.  A.  766 493 


;   TO   SECTlON.s] 

State  V.  Briggs,  74  Kans.  377, 

86   Pac.   447,   10   Ann.   Cas. 

904,  7  L.  R.  A.  (N.  S.)  .  .  .  495 
State  V.  Ferris,  171  Ind.  562, 

86   N.    E.   993,    4   L.    R.    A. 

(N.   S.)    173 495 

State  V.  CoUery    (La.),  2  So. 

496   495 

State  V.  Whitney,  3  S.  W.  537  495 
State    V.   Montgomery,   56    la. 

195  N.  W.  126 495 

State  V.  Vorback,  66  Mo.  168.  495 
State  V.  Cowdin,  28  Kan.  229.  495 
State  V.  Thatcher,  35  N.  J.  L. 

445    496 

State  V.  Leyes,   196   Mo.    136, 

93  S.  W.  801,  7   Ann.  Cas. 

23,  6  L.  R.  A.  (N.  S.)  369.  496 
State  V.  Fooks,  21  N.  W.  561, 

56  la.   196 496 

State  V.  Goble,  60  la.  447,  15 

N.   W.   272 497 

State  V.   Swan,   55  Wash.    67, 

104    P.    145,    133    A.    S.    R. 

1024,  19  Ann.  Cas.  1129,  24 

L.  R.  A.  575 497 

State   V.    Bohle    (Mo.),   81    S. 

W.  179   498 

State  V.  Delyon,  1  Bay  (S.  C.) 

53   499 

State  V.  Mathews  (Kans.),  10 

L.  R.  A.  308 499 

State    V.     Mathews,     10    Tex. 

App.   279    500 

State    V.    Mathews,    44    Kans. 

662,  25  P.  36 500 

State   V.   Field,   118   Ind.   491, 

21  N.  C.  252 500 

State  V.  Young,  76  N.  C.  258.  500 
State    V.    Lambeth,    80    N.    C. 

296   500 

State  V.  Wilkinson,  103   N.  C. 

337,  9   S.   F.  415 500 

State    V.    Ilammelsy,    52    Ore. 

156,  96  P.  865,  132  A.  S.  R. 

686,  17  L.  R.  A.  (N.  S.)  244     501 


1374 


Table  of  Cases 


[references  are 
state  V.  Foxton,  166  la.  181, 
147  N.  W.  347,  52  L.  E.  A. 

919  501 

State  V.  Thatcher,  35  N.  J.  L. 

445    503 

State  V.  Neimier  (la.),  24  N. 

W.  247,  66  la.  634 503 

State  V.  Wison    (Mo.),  44   S. 

W.  722   503 

State  V.  Stone,  95  S.  C.  390, 
76  S.  E.  108,  49  L.  E.  A. 

(N.  S.)  574 503 

State  V.  Mathew,  44  Kan.  596, 

25  P.  36,  10  L.  E.  A.  308..      503 
State  V.  McCormick,  57  Kans. 
440,  46  P.  777,  57  A.  S.  E. 

341     503 

State  V.   Ham,  93   Mo.   190,  6 

S.  W.  96 503 

State  V.  Asher,  50  Ark.  427 .  .      504 
State  V.   Miller,  47    Ore.   562, 
85  Pac.  81,  6  L.  E.  A.   (N. 

S.)  265 505 

State  V.  Mathews,  44  Kans. 
591,  25   P.  36,   10  L.   E.  A. 

308    505 

State  V.  Chune,  82  Kans.  338, 
108  P,  789,  20  Ann.  Cas.  S. 
W.  164,  27  L.  E.  A.  (N.  S.) 

1003    506 

State  V.  Warren,  109  Mo.  430, 
10  S.  W.   101,  32  A.  S.  E. 

681    506 

State  V.   Stratton,  27   la.   420, 

1  Am.  Eep.  282 507 

State  V.  Mitton,  37  Mont.  366, 

96  P.  926,  127  A.  S.  E.  732.      507 
State  V.  HigRins,  60  Minn.  1, 
61  N.  W.  816,  51  A.  S.  E. 

490,  27  L.  E.  A.  74 507 

State  V.  Hindry,  156  Ind.  392, 
50  N.  E.   1041,  54  L.   E.  A. 

794   507 

State    V.    Gherkin,    7    Ircd.    7, 

206   507 

State  V.  Millncr,  33  S.  W.  15..     508 
State  V.  Kroegor,  47  Mo.  552.      508 


TO   SECTIONS] 

StaL^  V.  McLean,  Aikens  311..     508 

State    V.    Thornberry,    6    Ired. 

79    508 

State  V.   Davis,  53,   252,  5  N. 

W.  147    508 

State  V.  Taylor,  46  La.  Ann. 
1332,  16   So.   190,  49   A.   S. 

E.  351   509 

State  V.  Wilson,  28  Minn.  52, 
3  Cr.  L.  Mag.  124,  A.  N.  E. 
28,    In    Ee    Tully,    20    Fed. 

Eep.    812    509 

State  V.  Shartliff,  18  Me.  368.  511 
State  V.   Young,   88   Am.   Dec. 

212,  46  N.  H.  266 512 

State  V.  Chance,  82  Kans.  392, 

108  P.  791,  20  Ann.  Cas.  134  512 
State  V.  Thompson,  19  So.  299.  516 
State  V.  Johnson,  96  Am.  Dec. 

158,  26  la.  407 516 

State  V.  Fisher,  65  Mo.  437..  516 
State  V.  Tobie,  42  S.  W.  1079  516 
State   V.   Calkins,   73   la.    128, 

34  N.  W.  777 518 

State  V.  Cross,  101  N.  C.  770, 

7  S.  E.  715,  9  A.  S.  E.  53..      518 
State  V.  Sherwood,  90  la.  550, 
58  N.  W.   911,  48   A.   S.  E. 

461   519 

State  V.  Blogitt,  143  la.  578, 
121  N.  W.  685,  21  Ann.  Cas. 

231   519 

State  V.  Tingler,  9  S.  E.  935, 

32  W.  Va.  546 520 

State    V.    Callahan,    24    N.    E. 

(Ind.)  732,  124  Ind.  364...  520 
State  V.  Callendine,  8  la.  288.  520 
State  V.  Johnson,  26  la.  407, 

96  Am.  Dec.  158 520 

State  V.  Warren,  109  Mo.  432.     521 
State  V.   Nelson,  28  La.  Ann. 

46   521 

State  V.  Fisher,  58  Mo.  256..     521 
State   V.   Means,  47   La.   Ann. 

1535,13  80.514 621 

State  V.  Fisher,  65  Mo.  438..      522 


Table  of  Cases 


L'^T.') 


[references  are 
State  V.  Stevens,  45  La.  Ann. 

702,   12  So.   883 522 

State   V.   McKiernan,    17    Nov. 

227,  30  P.  831 522 

State  V.  Clement,  42  La.  Ann. 

583    523 

State   V.   Blanchard    (la.),  38 

N.  W.  519,  38  N.  W.  519.  .      524 
State  V.  Hodges,  45   (Mo.)    S. 

W.  1093   525 

State  V.  Meyers,  82  Mo.  558. .     525 
State  V.  Hodges,  45  S.  W.  1093     525 

State  V.  Aims,  2  Me.  365 527 

State  V.  Weinies,  66  Mo.  ]3. . .     529 
State  V.  Hardz,  47  la.  647,  29 

Am.  Eep.  496 530 

State  V.  Vance,  17  la.  138 530 

State  V.  Jones,  78  Mo.  77,  47 

Am.   Eep.    92,   Am.    &   Eng. 

End,  Vol.  9,  P.  589 530 

State  V.  Douglass,  28  W.  Va. 

297    530 

State  V.  John,  172  Mo.  220, 

72  S.  W.  525,  95  A.  S.  E. 

513  631 

State  V.  Jackson,  36  S.  C.  487, 

15  S.  E.  550,  31  A.  S.  E.  890     531 
State  V.  Doherty,  72  Vt.  381, 

48  Atl.  658,  82  A.  S.  E.  951.     532 
State  V.  Legg,  50  W.  Va.  315, 

53  S.  E.  545,  3  L.  E.  A.  (N. 

S.)  1152   532 

State  V.  Moore,  25  la.  128,  95 

Am.  Dec.  776 533 

State  V.  Landgraf,  95  Mo.  97, 

8  S.  W.  237,  6  A.  S.  E.  26.      533 
State  V.   Alexander,   30   S.    C. 

74,  8  S.  E.  440,  14  A.  S.  R. 

879 533 

State  V.  Johnson,  47  N.  C.  247, 

64  Am.  Dec.  742 534 

State  V.  Wood,  53  Vt.  560...     536 
State  V.  Maren,  2  Ala.  275.  . .     536 
State  V.  Johnson,  47  N.  C.  247, 
State  V.  Williams,  2  Tex.  App. 

271    538 


TO   SECTIONS] 

State  V.  Cooper,  22  N.  J.  L. 

52,  57   Am.  Dec.   214 538 

State  V.  Winthrop,  43  la.  519, 

22  Am.  Eep.  527 538 

State  V.  ,   7   Tex.   App. 

570   538 

State  V.  Hill,  4  D.  &  B.  491.  .  539 
State  V.  Evans,  44  Miss.  762. .  539 
State  V.   King,   24   Utah   482, 

68  Pae.  418,  91  A.  S.  E.  808  541 
State  V.  Lake,  80  N.  C.  403 .. .  542 
State    V.    Waggoner,    78    Mo. 

644,  47  Am.  Eep.  131 542 

State  V.   Bottoms,   10  Humph. 

(Tenn.)    103    542 

State  V.  Wells,  61  la.  620,  17 

N.  W.  90,  47  Am.  Rep.  822.     542 
State  V.  O'Hara,  92  Mo.  59..     543 
State  V.  Robinson,  73  Mo.  306, 
see  9  Am.  &  Eng.  Enc.  566 

and  567    544 

State  V.  Hill,  4  D.  &  B.  491 

(N.  C.)    545 

State  V.  Brown,  58  Ind.  159.  .  545 
State  V.  Hocket,  70  la.  442..  545 
State  V.  Spangler,  40  la.  540.  545 
State  V.  Hill.  4  D.  &  B.  564.  .  .  '  545 
State  V.  Cooley,  19  N.  M.  91, 
140  Pae.  1111,  52  L.  R.  A. 

(N.  S.)  230   545 

State  V.  Harlley,  185  Mo.  669, 
84  S.  W.  910,  105  A.  S.  E. 

608   545 

State   V.    Averill,   85   Vt.    115, 
81      Atl.     461,     Ann.     Cas. 

1914  B  1005   545 

State  V.  Sealous  Grugin,  42  L. 

R.   A.    774 545a 

State  V.  Hill,  4  D.  &  B.  491. .     546 
State  V.  Samuels,  48  N.  C.  74, 
64   Am.   Dec.  596    (3   Jones 

Law)    547 

State    V.    Neivilles,    6    Jones, 

453     547 

State  V.  Grugin,  147,  42  L.  R. 
A.  774 548 


1376 


Table  of  Cases 


[referexces  are 
State  V.  Lowery,  4  Nev.   161- 

170    548 

State  V.  Croton,  6  Ired.  164.  ..  548 
State  V.  Croton,  6  Ired.  164.  . .  549 
State  V.  Alford,  80  N.  C.  445.  549 
State  V.  McDaniel,  8  Miss.  411  549 
State  V.  Lambert,  23  Miss.  322  549 
State  V.   Benham,   23   la.    154, 

92  Am.  Dee.  417 549 

State  V.  Thompson,  9  la.   188, 

74  Am.  Dec.  342 549 

State    V.    Shippey,    10    Minn. 

223,  88  Am.  Dec.  70 549 

State  V.  Oliver  (Del.),  2  Hous- 
ton 585 549 

State  V.  Stockston,  25  Tex.  776  549 
State  V.  Eoberts,  14  Mo.  146. .  549 
State  V.  Lovel,  23  la.  304,  20 

Tex.  App.  360 549 

State   V.    Evans,   161   Mo.    95, 

61   S.  W.   500,   84   A.   S.   E. 

669    549 

State   V.    Evans,    161    Mo.    95, 

61  S.  W.  590 550 

State    v.    Hunter,    106    N.   W. 

796,  8  L.  K.  A.  529 550 

State  V.  Taylor  (76  Vt.  1),  42 

L.  R.  A.  673  and  note  there- 
to        550 

State  V.  Adams,  78  La.  292,  43 

N.  W.  194 551 

State  v.  Taylor,  70  Vt.  1,  67  A. 

S.  R.  648,  39  Atl.  447 551 

State  V.  Abarr,  49  la.  185 552 

State    v.    McNabb,    20    N.    H. 

160    552 

State  v.  Smith,  32  Me.  369,  54 

Am.  Dec.  578 552 

State  v.   Meyers,  99  Mo.   107, 

12  S.  W.  516 552 

State  v.  O 'Brian,  32  N.  J.  L. 

169    552 

State  V.  Dorsey,  118  Ind.  167, 

10  A.  S.  R.  Ill 552 

State  V.  Harris,  1  Jonos  190.  .  .      555 


TO    SECTIONS] 

State  v.  Chandler,  5  La.  Ann. 

490    556 

State  V.  Chopin,  10  La.  Ann. 

458    559 

State  V.  O'Connor,  31  Mo.  389  556 
State  V.  Perder,  27  Fla.  370, 

26  A.  S.  R.  75 556 

State  V.  Scott,  2  Head  217.  . .  557 
State  V.  Benham,   23   la.   154, 

92  Am,  Dec.  47 558 

State  V.  Hill,  4  D.  &  B.  496.  .  558 
State  V.  Perkins,  88  Conn.  360, 

91  Atl.  265,  L.  R.  A.  1915  A 

73    559 

State  V.  Patterson,  12  Am.  L. 

Reg.  N.  S.  647 559 

State  V.  Moore,  31  Conn.  470, 

83  Am.  Dec.  159 560 

State  V.  Isone,  25  Tex.  74 563 

State  V.  Waggoner,  33  Ind.  533  564 
State  V.  Morgan,  3  Ired.  188 

(N.  C),  38  Am.  Dec.  714..  564 
State  V.  Stockton,  25  Tex.  777.  664 
State  V.  Mitchell,  41  Ga.  537. .  564 
State  V.  Burwell,  63  N.  C.  561  564 
State    V.   Harrell,    10    Am.    St. 

294,  97  Mo.  105 565 

State  V.  Smith,  10  Nev.  106..  566 
State  V.  Barr,  11  Washington 

481,  48  A.  S.  R.  890,  39  P. 

1080    667 

State  V.  Moore,  31  Conn.  479, 

83  Am.  Dec.  159 567 

State  V.  Nicholds,  8  Conn.  496  569 
State  V.  Johnson,  4  Mo.  618..  569 
State  V.  Meadows,  18  W.  Va. 

658    569 

State  V.  Hickam,  95  Mo.  322, 

6  A.  S.  R.  54 569 

State  V.  South,  28  N.  J.  L.  28, 

75  Am.  Dec.  456 570 

State  V.  Powell,  103  N.  C.  421, 

9  S.  E.  627,  14  A.  S.  R.  821, 

4  L.  R.  A.  291 570 

State  V.   Parker,   34  Ark.   158, 

36  Am.  Rep.  5 571 

Slatr  V.  Moore,  11   Trod.  70...      571 


Table  of  Cases 


13 


/  < 


[references  are 
state  V.  Klinkenberg,  76  Wash, 

466,     136    Pac.     Ann.     Cas. 

1915  D  468,  49  L.  R.  A.  (N. 

S.)    965    572 

State  V.  Fox,  83  Conn.  286,  76 

Atl.  302,  19  Ann.  Cas.  682, 

see  49  L.  R.  A.  (N.  S.)  965.  572 
State  V.  Krider,  78  N.  C.  481.  573 
State  V.  Shaw,  60  L.  R.  A.  481  573 
State  V.  Geer,  13  L.  R.  A.  804, 

161  N.  S.  618,  40  L.  ed.  793  573 
State  V.  Repp,  104  la.  305, 

73  N.  W.  829,  65  A.  S.  R. 

463,  40  L.  R.  A.  687 573 

St^te  V.  Harrinion,  75  Me.  562, 

46  Am.  Rep.  423n 574 

State  V.  Lathom,  35  N.  C.  38 

(13  Ired.  L.) 574 

State  V.  Sumner,  2  Ind.  377...  574 
State  V.  Marshall,  13  Tex.  55.  574 
State  V.  James,  52  N.  H.  67. .  576 
State  V.  Bishop,  4  S,  E.  357, 

98  N.  C.  773 577 

State  V.  McCoy,  17  N.  C.  474.  577 
State  V.  Fairclaugh,  29  Conn. 

47,  76  Am.  Dec.  690 578 

State  V.  Ruffin,  164  N.  C.  416, 

79   S.  E.  417,   47  L.  R.  A. 

(N.  S.)  852 578 

State  V.  Ruffin,  164  N.  C.  416, 

79  S.  E.  417,  47  L.  R.  A.  (N. 

S.)  852  579 

State  V.  Fairclaugh,  29  Conn. 

47,  76  Am.  Dec.  590 579 

State  V.  Fairclaugh,  27  Conn. 

47   579 

State  V.  Dapke,  68  Mo.  208 . .  580 
State    V.    Courtsol,    89    Conn. 

564,  94   Atl.  973,  L.  R.  A. 

1915  A  465 581 

State  V.  Clifford,  14  Nev.  72, 

33  Am.  Rep.  526 581 

State  V.  Dean,  49  la.  150,  31 

Rep.  143    581 

State  V.  Wiston,  9  Conn.  527.  581 
State  V.  Conway,  18  Mo.  321.  .  581 
State  V.  Mead,  27  Vt.  722 ...  .  582 
C.  L.— 87 


TO   SECTIONS] 

State  V.  Grant,  10  S.  E.  554, 

104  N.  C.  908 582 

State  V.  Shields,   89  Mo.  259, 

1  S.  W.  247 582 

State   V.   Scripture,   42   N.   H. 

485   582 

State  V.  Rand,  38  N.  H.  216. .  582 
State  V.  Edwards,  51  W.  Va. 

220,  41   S.  E.  429,  59  L.  R. 

A.  465 583 

State  V.  Edwards,  supra 583 

State  V.  Brown,  25  la.  561 .. .  583 
State  V.  Coombs,  55  Me.  477 .  .  583 
State  V.  Stone,  68  Mo.  101 .  . .  584 
State    V.    Humphrey,    32    Vt. 

569,  78  Am.  Dec.  605 584 

State  V.  Parker,  26  Atl.  L.  J. 

423   585 

State  V.  Chambers,  22  W.  Va. 

770,  46  Am.  Rep.  550 586 

State    V.    Johnson,    12    S.    W. 

500   587 

State  V.  Slengerland,  19  Nev. 

135   587 

State  V.  Wood,  46  la.  116 587 

State  V.  Cliford,  14  Nev.  72,  33 

Am.  Rep.  526 587 

State  V.  Humphrey,  32  Vt.  569, 

78  Am.  Dec.  605 588 

State  V.  Holmes,  57  Am.  Dec. 

369   589 

State  V.  Humphrey,  32  Vt.  569, 

78  Am.  Dec.  606 589 

State  V.  Holmes,  57  Am.  Dec. 

271   589 

State    V.    Maggard,    160    Mo. 

469,  61  S.  W.  184,  83  A.  S. 

R.  484    590 

State  V.  Riley  (Mo.),  13  S.  W. 

1036   590 

State  V.  Daniels,  118  lU.  301.  590 
State  V.  Doppke,  68  Mo.  208. .  591 
State  V.  Shields,  89  Mo.  259. .  591 
State  V  Jenkins,  78  N.  C.  478.  591 
State  V.  Allen,  9  S.  E.  626. . .  591 
State  V.  Parnell,  9  S.  E.  627, 

103  N.  C.  424 591 


1378 


Table  of  Cases 


[references  are 

state  V.  Bench,  68  Mo.  78 591 

State  V.  Morgan,  69  S.  W.  970  691 
State  V.  Jansen,  22  Kans.  498.  593 
State   V.   Hayes,   105   Mo.    76, 

24  A.  S.  E.  360 593 

State  V.  Hull,  33   Ore.  56,  72 

A.  S.  E.  694 593 

State  V.  Turner,  19  la.  144.  .  .  597 
State   V.   Guild,   149   Mo.   370, 

73  A.  S.  E.  395 598 

State  V.  Haskins,  109  la.  656, 

80  N.  W.  1063,  77  A.  S.  E. 

560,  47  L.  E.  A.  223 602 

State  V.  Herrick  (Wis.),  3  Cr. 

Law  Mag.  p.  177 602 

State  V.  Sheridan,  14  Ida.  222, 

93  P.  656,  15  L.  E.  A.   (N. 

S.)  497 605 

State  V.  Brady,  44  Kans.  435, 

21  A.  S.  E.  296 605 

State  V.  Burnham,  9  N.  H.  34, 

31  Am.  Dec.  217 605 

State   V.   Smiley,   37    Ohio    St. 

30,  41  Am.  Eep.  487 605 

State  V.  Torljusgh,  32  S.  Dak. 

370,    143    N.    W.    279,   Ann. 

Gas.  1916  A  424 606 

State  V.  Sefrit,  82  Wash.  520, 

144  P.  725 606 

State  V.  Londale,  48  Wis.  348, 

4  N.  W.  390 611 

State  V.  Londale,  48  Wis.  348, 

4  N.  W.  390 612 

State  V.  Avery,  7  Conn.  226..  617 
State   V.   Herrick,   3   Cr.   Law. 

Mag.   179    617 

State  V.  Hunter,  106  N.  C.  796, 

11  S.  E.  366 621 

State  V.  EoUins,  8  N.  H.  550.  622 
State  V.  Watts,  48  Ark.  56,  3 

A.  S.  E.  216 625 

State  V.  Johnson,  58  Ohio  St. 

Eep.  417,  51  N.  E.  40,  65  A. 

S.  E.  770 630 

State    V.    ron;ih;in,    10    Wash. 

268    630 

State  V.  Briley,  8  Port.  412..      630 


TO    SECTIONS] 

State  V.  Ma  Foo,  110  Mo.  7, 

33  A.  S,  E.  415 630 

State  V.  Bowers,  24  Tex.  App. 

542,  5  A.  S.  B.  901 630 

State  V.  Hair,  37  Minn.  351..     631 

State  V.  Cody,  18  Ore.  506 631 

State  V.  Johnson,  58  Ohio  St. 

417,  65  A.  S.  E.  770 :      632 

State  V.  Vowels,  4  Ore.  325 ..  .  632 
State  V.  Davis,  14  E.  L  281..  634 
State  V.  Evans,  Ired.  N.  C.  603  638 
State  V.   Millard,   18  Vt.   574, 

46  Am.  Dec.  170 645 

State  V.  Waller,  3  Mur.  229.  .  651 
State  V.  Powell,  70  N.  C.  68. .  651 
State  V.  Brown,  38  Kans.  390, 

16  Pac.  259 651 

State     V.     Graham,     3     Sneed 

(Tenn.)   134   651 

State   V.   Locker,   50   N.   J.  L. 

512,   14  Ayl.   749 651 

State  V.   Doyton,  23   N.   J.   L. 

40,  53  Am.  Dec.  270 653 

State  V.  Shupe,  16  la.  36,  85 

Am.  Dec.  485 653 

State  V.  Shupe,  16  la.  26 655 

State  V.  Dayton,  53  Am.  Dec. 

270    657 

State  V.  Kane,  26  Me.  33 657 

State  V.  Dayton,  53  Am.  Dec. 

270    659 

State  V.  Gates,  17  N.  H.  373. .     659 

State  V.  Trask,  42  Vt.  152 659 

State  V.  Shupe,  16  la.  26,  85 

Am.  Dec.  496  and  note....  660 
State  V.  Townlcy,  67  Ohio  St. 

21,  65  N.   E.    149,  93   A.   S. 

E.   626  and   note 660 

State  V.   Jackson,   36  Ohio  St. 

281   661 

State  V.   McClusky,  8  McCord 

L.  308 661 

State    V.    Gallimon,    24    N.    C. 

(2    Ired.)     374 663 

State     V.     Wimbcrly,    40     La. 

Ann.  460,  4  So.  161 663 


Tabi.e  of  Cases 


l.'iTi) 


[references  ark 
state  V.  McCone,  59  Vt.   117, 

7  Atl.  406 663 

State  V,  Cruikhank,  6  BlackL 

62  665 

State  V.  Knox,  Phill.    (N.  C.) 

312    665 

State  V.  Conner,  3  McLean  573  666 
State  V.  Meadow,  54  Vt.  126..  667 
State  V.Peters,  107  N.  C.  876.  669 
State  V.  Gilliland,  51  W.  Va. 

278,  41  S.  E.  131,  90  A.  S. 

E.  793  670 

State  V.  Gilliland,  51  W.  Va. 

278,  90  A.  S.  R.  793 671 

State  V.  Gilliland,  51  W.  Va. 

278,  90  A.  S.  R.  793 672 

State    V.    Chandler,    31    Kans. 

201,  1  Pac.  787 674 

State  V.    Panienter,   60   Kans. 

857,  56  Pac.  1132 674 

State  V.  Locust,  93  N.  C.  577.  674 
State  V.  Sayer,  35  Ind.  379..  674 
State  V.  Steward,  48  Ind.  146.  674 
State  V.  Sargetit,  74  Minn.  245, 

76  N.  W.  1129 675 

State  V.  Bass,  75  N.  C.  139. .  .  675 
State  V.  Davis,  138  Ind.  11,  37 

N.  E.  397 675 

State  V.   Leach,    18   Am.   Dec. 

118   677 

State  V.  Lewis,  19  Kans.  266. .  677 
State  V.  Beebe,  13  Kans.  589..  677 
State  V.  Lewis,  19  Kans.  266..  679 
State  V.  Davis,  14  Neb.  439. . .  680 
State  v.  Leach,  7  Conn.  452 .  .  681 
State   V.    Tuttle,    67    Ohio    St. 

440,  66  N.  E.  524,  93  A.  S. 

R.  689    685 

State  V.  Lung,  21  Nev.  209,  28 

Pac.  235,  37  A.  S.  R.  505...     685 
State  V.  Lung,  21  Nev.  209,  37 

A.  S:  R.  506,  28  P.  235 685 

State  V.  Dowell,  106  N.  C.  570, 

11  S.  E.  525 688 

State  V.  Pugh,  7  Jones  (N.  C.) 

61    688 


TO    SECTIONS] 

State  V.  Cunningham,  100  Mo. 

382   688 

State  V.  Preston,  74  Mo.  24.  .  .  689 
State   V.   Lung,   21    Nev.    209, 

37  A.  S.  R.  505 689 

State  V.  Dalton,  106  Mo.  463.  689 
State  V.  Schoyer,  104  Mo.  441, 

24  A.  S.  R.  344 689 

State  V.  Houx,  109  Mo.  32,  A. 

S.  R.  686 690 

State  V.  Shroyer,  24  A.  S.  R. 

344,  104  Mo.  441 690 

State  V.  Neely,   21   Am.    Rep. 

496    690 

State  V.  Houx,  109  Mo.  654..  690 
State  V.  Comstock,  46  la.  265.  691 
State  V.   Jones,  83   N.  C.   605, 

35  Am.  Rep.  586 691 

State  V.  Carr,  43  la.  418 693 

State  V.  Holloway,  41  la.  200, 

20  Am.  Rep.  686 694 

State  V.  McCune,  5  R.    I.  60, 

70  Am.  Rep.  176n 694a 

State  V.  John,  5  Jones  (N.  C.) 

163  694a 

State  V.  Parson,  44  Wash.  299, 

87   Pac.   349,   120  A.   S.  R. 

1003   695 

State  V.  Lamb,  42  S.  W.  827.  695 
State  V.  Stinson,  124  Mo.  447, 

27   S.  W.   1098 695 

State  V.  Lawler,  130  Mo.  366, 

32  S.  W.  979 695 

State   V.   Perley,   86   Me.   427, 

30  Atl.  74,  41  A.  S.  R.  564.  698 
State  V.  Lewis,  30  Ala.  54,  68 

Am.  Dec.  113 701 

State  V.  Summers,  1  Mo.  App. 

374    701 

State  V.  Womack,  41  La.  Ann. 

635    701 

State  V.  Brownon,  55   Mo.  63, 

17  Am.  Rep.  643 701 

State   V.  Adams,  42   A.   S.   K. 

790    704 

State  V.  Higdon,  32  la.  261'..      7U4 


1380 


Table  of  Cases 


[beferen 
state  V.   Beeves,  10  A,   S.  R. 

349   

State  V.  KwUey,  245  Mo.  489, 

43   L.    E.    A.    (N.    S.)    476, 

150   S.  W.   1057 

State    V.    McMahon,    234    Mo. 

611,  137  S.  W.  872 

State  V.   Cook    (Mo.),  207   S. 

W.  831   

State   V.    Start,    65    Ore.    178, 

132  P.  572,  16  L.  E.  A.  (N. 

S.)  260 

State  V.  Gainse,  40  Am.  Dec. 

64   

State  V.  Graham,  3  Sneed  134 
State   V.   Crisp,   39   Am.    Eep. 

713,  86  N.  C.   528 

State  V.  Orleans  Judge,  39  La. 

Ann.   132    

State  V.  Orleans  Judge,  39  La. 

Ann  132   

State  V.  Baltimore  E.  E.   Co., 

24  W.  Va.  783 

State  V.  Langstone,   88   N.  C. 

692    

State  V.  Walsh,  36  Conn.  215. 
State  V.  Ohmer,  34  Mo.  115.  . . 
State  V.  Sumner,  2  Speer  599. 
State  V.  Heitman,  181  Pac.  630 
Shepard   v.   People,   25   N.   Y. 

406     

Strong     V.     State,     1     Blackl. 

(Ind.)   193   

Swain  v.  United  States,  165  U. 

S.  553   

Swain  v.  U.  S.  165  U.  S.  553.. 

Smith  V.  Curtis,  7  Cal.  584 

Smith  V.  Chichester,  1  Cal.  409 
Spiller  V.  Wells,  96  Va.  598,  70 

A.  S.  E.  881  and  note 

Stark  V.  Jenkins,  1  Wash.  Ter. 

421     

Stermain  v.  Davis,  Selk  404. . 

Scars  V.  Terry,  36  Conn.  273.  . 

Senks  v.   Reeves,   19   Ohio   St. 

306  


CES   AKE   TO   SECTIONS] 

Stanley  v.   State,  24  Ohio  St. 

704  E€p.  166,  15  Am.  Rep.  604. .       91 

Simpson    v.    State,    4    Humph. 

456 91 

705a       Stanley  v.  State,  24  Ohio  166, 

Eep.  604  91 

705a  15  Am.  Eep.  604 93 

Simms  v.  State,  28  Tex.  App. 

705a  447  97 

Smith  V.  State,  55  Ark.  259,  18 

S.  W.  237 110 

707a   Scott  V.  Com.,  83  Am.  Dec.  461  111 
Steven  v.  State,  99  Am.  Eep. 

712  634  Ill 

713  Smith  v.  State,  55  Ark.  25,  18 

S.  W.  237 112 

713       Smith    v.    State    (Okla.),    155 

Pac.  699   113 

72Q       Stokes    v.    People,    53    N.    Y. 

164,  13  Am.  Rep.  492 125 

717       Subert  v.  State,  66  Miss.  446, 

6  So.  238 125 

^^^       Stevens  v.  Fields  (N.  Y.)   640     129 
Stanley  v.  State,  16  Tex.    App. 

„^g     392  138 

^       Stern  v.  State,  53  Ga.  229,  21 

^■^^*  Am.  Eep.  266 146 

71Q 

'^^       Sumner  v.  Buler,  50  Ind.  341, 

'^2^  19  Am.  Eep.  718 149 

^2^^       Sternmeyer  v.   People,   95   111. 

383     151 

13       Shorter  v.  People,  2  N.  Y.  193, 

51  Am.  Dfec.  286 153 

13   Spies  V.  People,  122  111.  13  Am. 

St.  320  156 

48       Spanell  v.  State,  —  Tex.  App. 

50  _,  203  S.  W.  357,  A.  L.  R. 

82  593  169 

83  Seam  v.  State,  4  (Ala.)  52...     170 
Scott   v.   State,   23    Tex.   App. 

84  432  170 

<i;    Sullevan  v.  State,  102  Ala.  245, 

83    j      15  So.  264,  48  A.  S.  R.  22..  170 
86;      Stewart  v.  Level,  2  Stark,  R. 

86  ji^     93 174 

ff  Shannon  v.  People,  5  Mich.  90  177 

88j|stanficld  v.  State,  43  Tex.  167  185 


Table  vf  Cases 


13»1 


[references  ar 

Spies  V.  People,  122  111.  1 187 

Spies  V.  People,  122  111.  1,  12 

N.  E.  865,  17  N.  E.  898,  6 

Am.  Cr.  R.   570,  3  Am.  St. 

Eep.  320  188 

Spies  V.  People,  122  111.  1,  3 

Am.  St.  Kep.  320,  12  N.  E. 

865,  17  N.  E.  898,  6  Am.  Cr. 

Eep.  570  189 

Slip  V.  State,  11  Ind.  62 189 

Spies  V.  People,  122  111.  3  Am. 

St.  Rep.  320,  122  111.  1,  12 

N.  E.  865,  17  N.  E.  898...  191 
Spies  V.  People,  122  111.  1,  3 

Am.  St.  Rep.  320,  12  N.  E. 

865,  17  N.  E.  898,  6  Am.  Cr. 

Rep.  570 192 

Stewart  v.  State,  35  Tex.  App. 

174,  32  S.  W.  766,  60  A.  S. 

R.  350  207 

Sadberg  v.  State,  46  S.  W.  620  220 
Simco  V.  State,  9  Tex.  App. 

338  220 

Stone  V.  State,  9  Tex.  App.  338  220 
Stone  V.  State,  135  A.  S.  R.  72  229 
Stirling  v.  State,  15  Tex.  App. 

249     230 

Spear  v.  State,  15  Ga.  562...  231 
Stone  V.  State,  160  Ala.  94,  40 

So.  823,  135  A.  S.  R.  69 231 

Smith   V.    State,   9    Tex.    App. 

150     242 

Smith  V.  People,  103  111.  82..  246 
Steyens  v.  McNamara,  36  Me. 

176     249 

Smith  V.  Knowlton,  11  N.  H. 

191     249 

Stokes  V.  People,  53  N.  Y.  164, 

13  Am.  Rep.  492 258 

Sullivan  v.  State,  102  Ala.  135, 

15  So.  264,  48  A.  S.  R.  22. .     258 
Snyder  v.  State,  234  Mo.  200, 

136    S.    W.    316,   Ann.    Cas. 

1912  D  191 260 

Sylvester  v.  State,  1  Ala.  Law 

Journal  134  263 

Straight  v.  State,  43  Tex.  486.     271 


E   TO   sections] 

Scuggs  V.  state,  88  Ark.  62, 

113  S.  W.  346,  16  Ann.  Caa. 

622  272 

Supra  Gone  v.  People,  162  111. 

2.39,  44  N.  E.  500 272 

Stringfellow  v.  State,  26  Miss. 

157     274 

Sparf  V.  U.  S.,  156  U,  S.  51, 

39  L.  ed.  343 285 

Schoeffler  v.  State,  3  Wis.  717.  289 
Sanders  v.  State,  113  Ga.  267, 

38  N.  E.  841 290 

Squires  v.  State,  46  Ind.  459..  295 
Simmons  v.  Com.,  29  Ky.  614.  332 
Supreme  Council  Order  v.  Gar- 

rigus,  104  Ind.  133,  3  N.  E. 

818,  54  Am.  Rep.  298,  13  L. 

R.   A.    163 332 

Snyder  v.  People,  26  Mich.  106 

(Sec.  342,  Note  4) 342 

Snyder    v.    People,    26    Mich. 

106,  12  Am.  Rep.  305 343 

Stevens  v.   Meyers,  4  C.  &  P. 

340 346 

Speers  v.   State,  2   Tex.   App. 

244    349 

Stevens  v.  Meyers,  4  C.  &  P. 

349     354 

Simms   v.   State,   9    Tex.   App. 

586     361 

Seoby  v.  Ross,  13  Ind.  117...  383 
Sedgewick  v.  Stanton,  4  Kerr 

(N.   Y.)    289 383 

Squires  v.  State,  46  Ind.  350.  .  399 
Speiden  v.  State,  3  Tex.  App. 

178,   30  Am.   Rep.   126 413 

Sherry   v.   Perkins,   147    Mass. 

212,  9  A.  S.  R.  689,  17  N. 

E.    207    432 

Spies  V.  People,  122  111.  1,  id., 

3  A.  S.  R.  320,  et  seq 441 

Snoddy    v.    Howard,    51    Ind. 

411,  id.,  19  A.  S.  R.  738...  447 
Shultock  v.  State,  51  Minn.  50  459 
Shattock  v.  State,  51  Miss.  50, 

24  Am.  Rep.  624 463 

Snyder  v.  State,  52  Me,  152..     467 


1382 


Table  of  Cases 


[references  are 
straight  v.  Williams,  18  Nev. 

43 469 

Shad  V.  State,  80  Mo.  358 483 

Stone  V.  Com.,  104  Ky.  220,  46 

S.  W.  721,  84  A.  S.  E.  452. .  489 
Shaffer  v.  State,  82  Ind.  221 . .  496 
Sonahoo  v.  State,  27  S.  W.  226  496 
Smith  V.  State,  55  Miss.  513 . .  496 
Solbert  v.  State,  1   Tex.  App. 

314     496 

Smith   V.    Com.,    19    Ky.    1073, 

428  W.   1138 530 

Stokes  V.  People,  53  N.  Y.  13, 

Am.  Eep.  492 546 

Silvas  V.  State,  22  Ohio  St.  90, 

1  East  P.  C.  2244 546 

Stevens  v.  State,  137  Ga.  520, 

73  S.  E.  737,  38  L.  R.  A.  (N. 

S.)  99  547 

Stewart  v.  State,  1  Ohio  71 . . .  555 
Stoffer  V.  State,  15  Ohio  St.  47, 

86  Am.  Dec.  470 566 

Simpson  v.  State,  59  Ala.  1,  31 

Am.    Eep.    1,    see    note    15, 

Ann.  Cas.  584 567 

Seott  V.  State,  49  Ark.  156...  569 
Steffy  V.   People,   130  111.   98, 

22  N.  E.  861,  6  A.  S.  E.  54. .  569 
Shand  v  Tighe,  35  N.  Y.  305 .  .  574 
Sentell  v  N.  O.  E.  E.  Co.,  166 

U.  S.  698 574 

Sargent  v  Consier,  66  111.  245. .  577 
Spivey  v.  State,  26  Ala.  90. .  .  577 
Stockly    V.     State,     6    S.     W. 

(Tex.)  538 578 

Starlcy  v.  State,  6  (Tex.)  538  583 
Smith  V.  People,  53  N.  Y.  Ill, 

13  Am.  Eep.  474 584 

Stegall    V.    State,    40    Am.    St. 

Eep.  761   r,88 

Shor  V.  State,  5  S.  W.  317,  28 

Tex.  App.  493,  13  S.  W.  784  590 
Smith  V.  State,  28  Ind.  321. .  .     591 

Smith  V.  State,  6  S.  W.  40 591 

Stewart  v.  People,  65  A.  8.  E. 

133.  173  111.  464 592 


TO    SECTIONS] 

Shreidley  v.  State,  23  Ohio  St. 

130     596 

Squires  v.  State,  39  Tex.  App. 

96,  45  S.  W.  147,  73  A.  S.  E 

904     605 

Stewart  v.  Hall,  83  Ky.  — ,  33 

S.  W.  420 604 

Storey  v,  Challends,  8  C.  &  P. 

234     611 

Searbrough  v.  State,  46  Ga.  26  639 
Stetson  V.  Faxon,  31  Am.  Dec. 

133  and  note 641 

Stevens  v.  State,  1  Swan  157. .  661 
Steinson  v.  State,  6  Yearg.  531  663 
Stewart  v.  State,  22  Ohio  St. 

477     664 

Stevena  v.  State,  11  Ga.  225. .  689 
Shinn   v.    State,   31   Am.    Eep. 

110,  64  Ind.  18 699 

Shover  v.  State,  10  Ark.  259..  715 
Scales  v.  State,  47  Ark.  476,  58 

Am.  Eep.   768 715 

Speelet  v.  Com.,  49  Am.  Dec. 

518,  8  Pa.  St.  312 717 

Scott  V.  United  States,  Morris 

142     725 

Spies  V.  People,  3  A.  S.  E.  320     726 

T 

Thompson  v.  State,  8  Utah  170, 

U.  S.  35 14 

Twichel  v.  Com.,  7  Wall.  186.  .  16 
Taylor  v.   Ft.   Wayne,  49   Ind. 

274     84 

Towlo  V.  State,  3  Fla.  303 89 

Thayer  v.  Brooks,  19  Ohio  St. 

489     98 

Twickor  v.  State,  27  Tex.  App. 

539     125 

Taffc  V.  State,  90  Ga.  459,  16 

S.  E.  204 128 

Territory   v.   Eoberts,   9   Mont. 

12,  22  P.  241 128 

Thomas  v.  People,  2  Colo.  App. 

513,  31  P.  349 165 

Tcr.  V.  Manton,  8  Mont.  95,  19 

P.  387 165 


Table  or  Cases 


13s;] 


Thomas  v.  State,  127  La.  576, 
53  So.  868,  Aun.  Cas.,  1912 
A  1059,  37  L.  R.  A.  (N.  S.) 

172     169 

Times  Pub.  Co.  v.   Carlile,  94 

Fed.    762 174 

Triplet  v.  Com.,  84  Ky.  196,  1 

S.  W.  84 221 

Ter.    V.    McAndrews,    3    Mont. 

148     243 

Tiffany   v.    Com.,   121    Pa.    St. 

165,  6  A.  S.  R.  775 244 

Trumbel  v.  State,  3  Wyo.  280, 

21  P.  1081,  6  L.  R.  A.  384.  .  244 
Turner  v.  State,  86  Pa.  St.  54.  244 
Tomason  v.  Odun,  23  Ala.  486.     248 

Ter.  V.  Keyes,  5  Ua.  244 254 

Thomas  v.  State,  43  Tex.  658. .     268 
Thompson    v.    State,    19    Tex, 

App.   590 

Taylor  v.  State,  22  Ala.  15 

Tuller   V.    State,   8    Tex.    App, 

501     

Tuberville  v.  Savage,  1  Mod.  5 

Taylor  v.  State,  50  Oa.  79 

Thallherimer    v.    Brinckerhoff, 
15   Am.   Dec,   312,  3   Cowen 

623     

Thompson    v.    State,    81    Am, 

Dec.  364,  18  Ind.  386 

Tinunons  v.  State,  34  Ohio  St. 
426,  32  Am.  Rep.  376 414 


[heferences  .\kk  to  sections  J 


281 
337 

343 
354 
378 


385 


413 


State,  6  Miss.  20. . 
Com.,  2  Met.   (Ky.) 


40  S.  W. 


Thomas 
Turner 

619     

Taylor   v.   Goodrich 

(Tex.)   515 

Territory   v.    Hale,    13    N.    M. 
181,  81  P,  583,  13  Ann,  Cas, 

551     

Taylor  v.  State,  32  Tex.  App. 

110     

Tatum  V.  State,  58  Ga.  409... 
Timmons  v.  State   (Ga.),  4  S. 

E.  766,  80  Ga.  216 

Territory    v,    Pendey,    22     P, 
(Mont.)    760 


417 


459 


463 


491 

493 
499 

519 

590 


Taylor   v.   Goodrich,   40   S.   W. 
(Tex.)    515 

U 


'.    Power,    11 

570 

.     Hudson,    1 

.    Barney,    5 

Wilson,     3 


United    States 

How,   (U,  S.) 
United    States    v. 

Wheat.   415 

United    States    v. 

Blachf.    294 

United     States    v. 

Blachf.    435 

United    States    v.    Warrall,    2 

Dialas    384 

United    States    v.    Coolage,    1 

Gallison   488 

United    States    v.    Varrall,    2 

Dallas  384 

United    States    v,    Coolage,    1 

Gallison  488 

United    States    v.    Wilson,    3 

Blackf.    435 

United  States  v.  Eaton,  144  U. 

S.  671,  36  Law  ed.  591 

United  States  v.  Hall,  2  Wash. 

(U.  S.)  366 

United  States  v.  Hall,  2  Wash, 

(U.  S.)  366 

United  States  v.  De  Witt,  9  Ct. 

Ill  

United  States  v,  Cobb,  43  Fed, 

Rep,    570 

United    States    v.    De    Mouse 

Nav.  Co.,  142  U.  S.  510 

United  States  v.  Insurgents,  2 

Dall.   335 

States    V.    Mitchell,    2 

348 

States    V.    Vallate,    2 

370 

Prior,  4  Wash. 


United 

Dall. 
United 

Dall. 
United  States 

334     

United  States  v.  Vigil  (N.  M.), 

34  P.  530 ' 

United  States 

482      


Kirby,  7  Wall. 


608 

2 
5 
5 
5 
5 
5 
6 
6 
6 
6 
10 
12 
16 

16 

21 

24 

24 

24 

24 

35 

42 


1384 


Table  of  Cases 


[references  are 

United    States    v.    Bevens,    3 

Wash.    336 43 

United    States    v.    Kline,     13 

Wall.    128 43 

United    States    v.    Milligan,    4 

Wall.  125 44 

United  States  v.  Clark,  31  Fed. 

Bep.  710 49 

United  States  v.  Grimlej,  137 

U.  S.  147 50 

United  States  v.  Clark,  31  Fed. 

Eep.    (1887)    710,  Fed.  Cas. 

No.   14,744 51 

United    States    v.    Cashier,    1 

Hughes  (U.  S.)  560 51 

United  States  v.  Pirates,  5  Wh. 

181,  U.  S.  Rep.  18-21,  62...  62 
United  States  v.  Smith,  5  Wh. 

153     63 

United    States    v.    Ferlong,    5 

Wh.   184 63 

United    States    v.    Pirates,    5 

Wh.   189 63 

United     States    v.    Baker,     5 

Blatch.  6 63 

United    States   v.    Klintock,    5 

Wh.   144 64 

United    States    v.    Pirates,    5 

Wh.  188 64 

United    States    v.    Pirates,    5 

Wh.  84 65 

United  States  v.  Smith,  5  Wh. 

144     65 

United  States  v 67 

United     States     v.     Davis,     2 

Sumner  486 68 

United  States  v.  Smith,  5  Wb. 

152     73 

United  States  v.  Furling,  5  Wh. 

182     73 

United     States     v.     Griffin     & 

Bradford,  5  Wh.  182 73 

United    States    v.     Bowers    & 

Mathews,  5  Wh.  182 73 

United  States  v.  Bevin,  3  Wh. 

336     74 


TO   SECTIONS] 

United  States  v.  Wiltberger,  5 

Wh.   76 74 

United  States  v.  Davis,  2  Sum- 
ner 482 74 

United    States   v.    Coombs,    12 

Peters   72 74 

United     States     v.     Cooledgel, 

Gall.  488 74 

United  States  v.  Wiltberger,  5 

Wh.   76 75 

United  States  v.  Pirates,  5  Wh. 

180     75 

United  States  v.  Rors,  1  Gallis. 

624     75 

United  States  v.  Hamilton,   1 

Mason  152 75 

United  States  v.  Wiltsberger,  5 

Wh.   76 76 

United    States    v.    Arrenda,    6 

Pet.    691-709 78 

United  States  v.  Moore,  3  Cr. 

(U.  S.)   159-170 87 

United  States  v.  Davis,  2  Sum. 

485     95 

United    States    v.   Guiteau,   10 

Fed.    161 106 

United  States  v.  Drew,  1  Lead- 
ing Cases  131 116 

United  States  v.  McClane,  7  L. 

Eep.  439 125 

United  States  v.  Dequelfeut,  3 

Cr.  L.  Mag.  P.  213-14 134 

United    States    v.    Terry,    42 

Fed.  317 134 

United    States   v.    Dequelfelds, 

Cr.  L.Mag.  213 137 

United  States  v.  14  Packages 

Filp,  C.  D.  235 149 

United  States  v.  Wiltberger,  3 

Wh.  C.  D.  515-521 153 

United    States    v.    Freeman,    4 

Mason  C.  C.  505 163 

United    States    v.    Wilson,    1 

Bowl.  102 188 

United    States    v.    Gilbert,    2 

Sumners    19 188 


Table  of  Cases 


1385 


[references  ar 
United  States  v.  ,  7 

Biss.   Ill 192 

United     States    v.     Henry,     4 

Wash.  C.  C.  R.  428 194 

United  States  v.  Ford,  99  U. 

S.  594 195 

United    States    v.    Gilbert,    2 

Sumners   42 198 

184-197    198 

United  States  v.  More,  5  Wh.  1     199 
United    States  v.   Marigold,   9 

How.  560 201 

United  States  v.  Perez,  9  Wh. 

579     232 

United  States  v.  Freis,  3  Dall. 

375,  1  (L.  C.  P.  ed.) 214 

United     States     v.     Riley,     5 

Blachf.  204,  Fed.  Cas.  16,164    222 
United  States  v.  Natt,  1  Mc- 
Lean (U.  S.)  499 274 

United  States  v.  Prior,  5   Cr. 

37     273 

United  States  v.  Stone,  8  Fed. 

Rep.  232 277 

United  States  v.  Stone,  8  Fed. 

232     281 

United     States     v.     Jones,     2 

Wheeler  Cr.  Cas.  450 298 

United  States  v.  Wilson,  7  Pet. 

(U.  S.)  150 301 

United   States   v.   Allen's   Ar- 
mory, 2  Abb.  (U.  S.)   129..     302 
United  States  v.  Lancaster,  4 

Wash.    (U.  S.)    64 302 

United     States    v.     Harris,     1 

Abb.  (U.  S.)  110 302 

United    States   v.    Athens    Ar- 
mory, 35  Ga.  344 302 

United    States    v.    6    Lots    of 

Ground,  1  Wood  (U.  S.)  234     302 
United    States    v.    Paddleford, 

U.  S,  Rep.  Book  17,788 302 

United  States  v.  Wilson,  7  Pet. 

161     303 

United  States  v.   Six  Lots  of 

Ground,  1  Wood  234 303 


K  TO  sections] 
United  States  v.  Wilson,  7  Pet. 

150     304 

United     States     v.     Jones,     2 

Wheeler  451 311 

United  States  v.  Royall,  3  Cr. 

C.   C.   620 317 

United  States  v.  Colladge,  Gal- 

lison   488 319 

United     States     v.     Jones,     2 

Wheeler  Cr.  Cas.  451 320 

United  States  v.  Kruisenshank, 

92  U.  S.  542 326 

United  States  v.  Wilbarger,  3 

Wood   515 361 

United    States    v.    Warrell,    2 

Dall.  384 403 

United   States  v.    Goldberg,    7 

Biss.    175,    4    Lawsons    Cr. 

Def.  565 419 

United  States  v.   Munscher,  7 

Biss.   400 419 

United    States    v.    Donan,    11 

Blatch.   168 420 

United    States    v.    Marrow,    4 

Wash.   (U.  S.)  733 445 

United  States  v.  Gardener,  10 

Pet.    (U.  S.)   618 448 

United    States   v.    Stevens,    52 

Fed.  Rep.  120 448 

United  States  v.  Williams,  14 

Fed.    550 448 

United    States    v.    Wilson,    44 

Fed.  Rep.  751 448 

United  States  v.  New  Bedfore 

Bridge,  1  Weed  &  M.  440..     455 
United  States  v.  Late  Corpora- 
tion of  Church  Jesus  Christ 

of  the  Latter  Day  Saints,  21 

P.   Utah   524 467 

United  States  v.  Clew,  4  Wash. 

C.  C.  700 479 

United  States  v.  Farnham,  127 

Fed.  Rep.  478 498 

United  States  v.  Carpenter,  151 

Fed.  214,  81  C.  C.  A.  104,  10 

Ann.   Cas.   509,   9   L.   R.   A. 

(N.  S.)   1043 519 


1386 


Table  of  Cases 


[references  are 
United  States  v.  CarU,  105  TJ. 

S.    612 523 

United  States  v.  Wiltberger,  3 

Wash.    515 546 

Utterback    v.    Conn.,    105    Ky. 

723,  40  S.  W.  479,  88  A.  S. 

E.  328 560 

United    States    v.    Askins,    4 

Cranch.  C.  C.  98 630 

United  States  v.  Hall,  131  U. 

S.  50,  33    (N.  S.,  L.  E.  D.) 

97     660 

United     States     v.     Shellmire, 

Bald.  370 665^ 

United      States      v.      Adkins, 

Sprague  558    665 

United  States  v.  Stanley,  6  Mc- 
Lean   409 666 

United  States  v.  Grottkau,  30 

Fed.  Eep.  672 667 

Updegraft  v.  Com.,  11  Serg.  & 

R.    394 708 

Ulrich  V.  Com.,  6  Bush.  400.  .  .      164 

U.  S.  Grim.  Code  335 17 

U.  S.  Cr.  Code 338 

U.    S.    Revised    Statute,    1878, 

sees.  5331  &  5332 24 

Underbill  on  Ev.,  sec.  237 265 

Underbill  on  Ev.,  p.  138 266 

Underbill  on  Ev.,  277,  1  Grim. 

Law  Mag.,  p.  428 268 

Ulriek  v.  People,  39  Mich.  245  277 
Underbill  on  Ev.,  sec.  237 265 

V 

Veal  v.  State,  8  Tex.  App.  474  14 
Voss  v.  Com.,  3  Leigh.  286,  24 

Am.  Dec.  695 

Vosberg  v.  Putney,  80  Wis. 

527,  27  A.  S.  R.  47 351 

Vnnnactor   v.    State,    113   Ind. 

276,  3  A.  S.  R.  645 359 

Vandornmrk  v.  People,  47  111. 

22     374 

Velor  V.  Barrton,  27  Vt.  56. . .  459 
Vandermark  v.  People,  47  111. 

122     569 


TO    SECTIONS] 

Vaught  V.   State,   135   Wis.   6, 

114  Nev.  518,  128  A.  S.  R. 

1008,   32   L.   R.   A.    (N.   S.) 

234,  note,  88  A.  S.  R.  586.  .  576 
Varner   v.    Spencer,   72    N.    C. 

381 577 

Vaugh  v.  Com.,  10  Gratt.  (Va.) 

758     588 

Varner  v.  State,  72  Ga.  745. . .  593 
Vanwick  v.  Asj^enwall,  17  N.  Y. 

190     610 

Von     Steenberg    v.    Kotz,     10 

Johns.  166 667 

W 

Wright    V.    State     (Wyo.),    27 

Pae.  565   16 

Wheelock  v.   Van  Riswick,  92 

U.  S.  202 43 

Wales   V.  Whitney,   114  U.   S. 

564     50 

Waterman  v.    State,   116   Ind. 

51,  18  N.  E.  63 70 

Wbitworth  v.  U.   S.,  114  Fed. 

302     77 

Whitman   v.   Krasner,  20  Ala. 

464     78 

Wasson  v.  Cone,  86  111.  46 82 

White  V.  Gibbes,  20  U.  S.  541  

Watson  V.  State,  36  Miss.  593  91 
Watson    V.    State,    133    Penn. 

198,  128  S.  W.  168 113 

Webb  V.  State,  9  Tex.  App.  490  122 
Wood  V.  State,  58  Miss.  741..  128 
Wharton  v.  State,  37  Miss.  379  145 
Wilson  V.  State,  69  Ga.  224. . .  160 
Warren     v.     State,     4     Cold. 

(Tenn.)    130 167 

Williams  v.  State,  61  Ala.  61, 

1  So.  179 170 

Wright  V.  State,  30  Ga.  325,  76 

Am.   Dec.   656 173 

Winn  V.  State,  82  Wis.  576,  52 

N.  W.  775 208 

Wright  V.  State,  5  Ind.  290,  61 

Am.  Doc.  90 209 


Table  of  Cases 


1387- 


[kkferences  akk 

Williams  v.  State,  2  Grat.  567, 

44  Am.  Dec.  403 218 

Welsh  V.  State,  126  Iiul.  71,  25 

N.  E.  883 232 

Watts  V.  People,  126  111.  9,  18 

N.  E.  240 232 

Wakefield  v.  Smart,  8  Ark.  489  248 
Ward  V.  Cole,  32  N.  H.  452. . .  248 
Williams  v.  State,  22  Tex.  App. 

497     263 

Worthington  v.   State,  92  Md. 

.222,  48  Atl.  355,  84  A.  S.  R. 

506     267 

Wicks  V.  State,  28  Tex.  App. 

448     268 

Wilmoth  V,  Hensel,  151  Pa.  St. 

200,  25  Atl.  86 272a 

Williams  v.  State,  69  Ark.  599, 

65  S.  W.  103 273 

Winslow  V.  State,  76  Ala.  42. .  274 
Weaver  v.  State,  77  Ala.  26,  5 

Am.  Cr.  Eep.  366 284 

Williams  v.  State,  47  Ind.  568  286 
Wilson  V.  State,  50  Tenn.  278  333 
Woolsey  v.  State,  30  Tex.  App. 

346     344 

Wilson  V.  State,  18  Tex.  App. 

156,  32  N.  Y.  525-532 361 

Warren  v.  State,  33  Tex.  517. .  361 
Wright  V.  Meek,  15  Am.  Dec. 

note,  p.  318 386 

Waldrope    v.    State,    41    Tex. 

App.  194,  53  S.  E 389 

Wall  V.  State,  32  Ark.  565 389 

Walsh  V.  People,  65  111.  58,  16 

Am.  Dec.  569 406a 

Welsh  V.  People,  65  111.  58,  16 

Am.   Eep.   569 407 

Walker  v.  State,  63  Ala.  49,  35 

Am.  Eep.  1 415 

Williams  v.  State,  46  Ga.  212. .     417 

Wood  V.  State,  46  Ga.  322 417 

Ware    v.    United    States,    154 

Fed.  577,  84  C.  C.  A.  503,  12 

Ann.   Gas.   233,  12  L.   E.   A. 

(N.  S.)   1053 418 


TO   SECTIONS] 

Ware  v.  United  States,  154 
Fed.  577,  84  C.  C.  A.  503,  12 
Ann.  Gas.  233,  12  L.  R.  A. 
(N".   S)    1053 420 

Woodard  v  State,  20  Tex.  App. 

375     440 

White   V.  People,  139  111.  143, 

32  A.  S.  R.  196 443 

Welsh  V.  Nash,  8  East  Git.  403  458 
Wilson   V.    Williams,    36   Miss. 

331     459 

Watson  V.  Thomas,  6  111.  248. .  459 
Wilson  V.  Hickman,  35  W.  Va. 

705     459 

Watt  V.  People,  17  Col.  252.  .  .  465 
Warmoth  v.  Com.,  81  Ky.  133  479 
Witmore  v.  State,  11  Tex.  App. 

414 481 

Wilderson  v.  State   (Ala.),  36 

So.  1004   495 

Walker  v.   State,  68  Fla.  278, 

67   So.   94,  L.   E.   A.,   1915C 

1161   496 

Woodberry    v.    State,    69    Ala. 

242   496 

Woodberry    v.    State,    69    Ala. 

242,  44  Am.  Eep.  516 498 

Wilkerson  v.  State   (Ala.),  36 

So.  1004,  140  Ala.  155 498 

Walker  v.  State,  127  Ga.  48,  56 

S.  E.  113,  119  A.  S.  E.  314 

and  note,  p.  317 507 

Westbrook    v.    State,    23    Tex. 

App.    401 521 

Wamble    v.    State,    44    S.    W. 

(Tex.)  827 521 

Waterman  v.  People,  G7  111.  91  527 
Walter  v.  State,  116  Ga.  537, 

42  S.  E.  787,  67  L.  E.  A.  426  536 
Wallace  v.  State,  10  Tex.  App. 

255   538 

Williams    v.    State,    3    Heish. 

(Tenn.)  376 546 

Williams    v.    State,    3    Heish. 

376  555 

Wilkerson  v.  State,  91  Ga.  729, 

44  A.  S.  B.  63 565 


1388 


Table  of  Cases 


[references  are 
Woods  V.  State,  27  Tex.  App. 

393 569 

Warren  v.  State,  1  la.  106 573 

Wortham    v.    State,    56    Tex. 
App.  253,  120  S.  W.  439,  14 

Ann.  Cas.  134 576 

Williams  v.  State,  6  S.  W.  357  577 
Wilson  V.  State,  8  So.  665,  20 

Tex.  App.  662 581 

Williams  v.  State,  49  Ind.  367     583 
Wilson  V.  State,  96  Ark.  136, 
131    S.   W.   336,   Ann.    Cas., 
1912B  339,  41  L.  E.  A.   (N. 

S.)   549. 584 

Williams  v.  State,  11  S.  W.  680  587 
Warden  v.  State,  60  Miss.  638, 

57  Am.  Dec.  274 588 

Williams  v.  State,  9  S.  W.  357  591 
Williams  v.  State,  5  S.  W.  129  591 
Westly  V.  State,  73  S.  W.  960 

(Tex.)    591 

Williams    v.     State,     23     Tex. 

App.  619 592 

Williams    v.     State,     19     Tex. 

App.  270 592 

Williams    v.     State,     13     Tex. 

App.    574 592 

Wright  V.  State,  5  Yerg.  154,  4 

Bla.  Com.  133 595 

Wright  V.   State,  76  Am.  Dec. 

656  and  note 625 

Wright  V.  State,  30  Ga.  325,  76 

Am.  Dec.  656 626 

Wood  V.  People,  59  N.  Y.  117  667 
Wyatt     V.      State,      2      Swan 

fTenn.)  394 685 

Whittaker    v.    State,    50    Wis. 
518,  36  Am.  Rep.  856 687 


TO   sections] 

Williams  v.  State,  14  OMo  St. 

466  689 

Warren  v.  State,  41  S.  W.  634  690 

Witten  v.  State,  15  S.  W.  871  692a 
Williams    v.     State,     10     Tex. 

App.  8 698 

Wesley  v.  State,  61  Ala.  282. .  698 
West  V.  State,  21  S.  W.  (Tex.) 

686  701 

Wison  V.  State,  73  Ala.  527 .. .  705 

Y 

Young   V.    Hamilton,    135    Ga. 

339,  60  S.  E,  593,  Ann.  Gas., 

1912  A  144,  31  L.  R.  A.  (N. 

S.)   1057 84 

Yates  V.  People,  32  N.  Y,  509  146 
Younger    v.    State,    2   W.    Va. 

579,  98  Am.  Dec.  791 214 

Yearger  v.  State  (Tex.  App.), 

41  S.  W.  621 222 

Young  V.  State,  68  Ala.  596..  282 
Yates  V.  State,  47  Ark.  658. . .  283 
Young  V.  Com.,  6  Bush.  312.  . ,  361 
Yates  V.  Lansing,  6  Am.  Dec. 

290  455 

Young    T.    State    (Tcnn.),    11 

Humph.  200 545 

Young  V.  Com.,  8  Bush.  481. . .     557 

Z 

Zoldoski  V.  State,  82  Wis.  580, 
52  N.  W.  778 129 

Zysman  v.  State  (Tex.),  60  S. 
W.  669 481 

Zabrisko  v.  State,  43  N.  J.  L. 
640,  39  Am.  Kep.  610 705a 


INDEX 

Parts  I— II 


(references  are  to  sections) 

A 
Accessories,  Chapter  VIII. 

distinction  from  principles  in  second  degree,  189. 

before  the  fact,  190. 

defined,  191. 

after  the  fact,  197,  422. 
Accomplice,   193-196. 

defined,    193. 

government  may  discharge,  194. 
immunity,  195. 
testimony,   196. 
Admission,  of  defendant  in  Bigamy,  393. 

See  Chapter  XI  on  "Confessions." 
Adultery,  Chapter  XIV. 

at  common  law,  327. 

definition,  328. 

common,  Roman  and  canon  law,  329. 

in  United  States,  329. 

under  the  statutes,  330. 

in  commission  of  incest,  rape,  or  bigamy,  331. 

indictment   for,   example,   331a. 
Affray,  Chapter  XV. 

definition,   332. 

gravamen  of  offense,  333. 

what  constitutes,  334. 

may  be  committed  short  of  blows,  when,  335. 

rout  and  riot,  336. 

self-defense,  337. 
Age,  presumption  as  to,  254. 
Agent,  defined,  487. 

signing  as,  not  forgery,  509. 
Aider  and  abetter,  368. 
Alien, 

responsibility  to  laws  of  country  where  lives,  57. 

1389 


1390  Index 

(references  are  to  sections) 
Animals,  wild,  in  larceny,  573. 

dogs,  cats,  birds,  ferrets,  in  same,  574. 
Antedating  an  instrument,  513. 
Appeal,  in  contempts,  456,  459,  463. 
Arson,   Chapter  XVI. 

definition,  172,  338. 

dwelling  house,  what  includes,  339. 

barns  in  field,  340. 

how   extended   by  statutes,   341,   342,   343. 

owner  of  house,  342. 

wife's  house,  343. 

total  destruction  not  necessary,  344. 

attempt,  345,  345a. 

act  need  not  be  done  in  person,  345a. 

intent,  345b. 
Assault  and  Battery,  Chapter  XVII. 

definitions   and   illustrations,   346. 

"present  ability"  from  defendant's  standpoint,  347. 

distinction  between,  348. 

physical  force,  349. 

intent  and  ability,  350,  351. 

means  used,  353. 

effect  of  consent  of  assailed,  353. 

simultaneous  language,  explanatory,  354. 

when  violence  may  be  inflicted,  355,  356. 

right  of  those  who  frequent  hotels,  357,  358. 

schoolmaster  may  chastise  pupils,  359. 

parent   and   child,   359,   360. 

other  relationship,   360. 

assailed 's  conduct,  361. 

solicitation,  when  not  an  attempt,  367. 

aider  and  abetter,  368. 

no  attempts  in  some  crimes,  369,  370,  371. 

solicitation  in  some  crimes  constitutes  attempt,  373. 

intent,  374-378. 
Attorney,  definition,  487. 

auter  fois,  63. 


Bailee,  definition,  487. 
Barratry,  Chapter  XIX. 

at   common   law,   379. 

in   American   States,   380. 

champerty   and   mnintcnancc,   383. 

arc  offcnsps  wliich  interrupt  course  of  justice,  384,  385,  386. 
B.'iwdy  nnd  disorderly  houses,  see  "Nuisances." 


Index  .1391 

(REFEUENCEb    AUE    TO    SECTIONS) 


Bigamy,  Chapter  XX. 
definition,    387. 

indictment,  what  must  contain,  389. 
marriage,  how  may  be  proved,  390. 
defenses,  391,  396,  399. 
incestuous  marriage,  395. 
right  to  remarry  upon  a  contingency,  397. 
place   of  marriage,   398. 
former    marriage,    398. 
marriage  must  be  solemnized,  399a. 
marriage  before  expiration  of  7  years,  249. 
Bill  of  rights,  16,  17. 
Bills   of   attainder,   10,    11. 
Blasphemy,  711. 
Boycott,   431. 
Bribery,    Chapter   XXI. 
definition,  400. 
thing  accepted,  402. 
offering  and  accepting,  403. 
to  control  vote,  404, 
to  fill  office  without  compensation,  405. 
to  bribe  in  tlie  nature  of  an  attempt,  406. 
soliciting,  406a. 
embracery,  407. 
Burglary,  Chapter  XXII. 
definition,  408. 
dwelling  house  defined,  409. 
common   law  governs,  when  410. 
five  concurrent  elements,  410. 
breaking,  411-414. 
entry,  415. 
dwelling,  409. 
at    night   time,    417. 
intent  to  commit  felony,  416. 


Caveat  emptor,  in  false  pretenses,  505. 
Champerty  and  maintenance,  383,  386. 

also  see  Chapter  XIX. 
Clerk,  defined,  487. 
Combination  of  dealers  to  lower  or  raise  prices,  433. 

to  effect  legal  ends  by  illegal  means,  434. 
Comity,  international,  52. 
Common  law, 

when  may  be   resorted   to,  5. 

no  authority  for  common  law  jurisdictiim  in  U.   S.  courts,  6,  22. 


1392  Index 

(references  are  to  sections) 

Common  scolds,  640. 
Confessions,  Chapter  XI. 

admissions  and  confessions,  270. 

effect   of    271, 
classes,  272,  272a,  274. 
a  fact  to  be  proved,  273. 
admissibility,  275,  294. 
threat  or  inducement,  276-282. 
deception,  290. 
force  or  duress,  289. 
at  time  of  arrest,  284. 
•when  may  be  made,  295. 
implied,    285-286. 
conspiracy,  286. 
by  principles  to  accessory,  287. 
while  drunk,  291,  292. 

as  to  former  marriage,  295. 

third  parties,  296. 

presumption  as  to  judicial,  266. 
Conspiracy,  Chapter  XXIII. 

definition  and  description,  95,  422. 

abetting  residents  of  another  state,  101. 

confession  of  one  conspirator,  286. 

no  attempt,  369,  418. 

acts  indictable  per  se,  419. 

criminality,  how  determined,  419a. 

substantive   offense,  420. 

merged  into  consummated  offense,  421. 

each  responsible  of  act  of  another,  421. 

mere  willingness  does  not  constitute,  423. 

to  defraud  another  of  his  property,  424. 

partners,  425. 

other  circumstances,  426. 

ill  will,  427. 

act  of  immorality,  428. 

to  defeat  public  justice,  429. 

wages  of  workmen,  430. 

boycott,  431. 

capital,  skill  and  labor  of  workingman,  432. 

combination  of  dealers  to  lower  or  raise  prices,  433. 
to  effect  legal  ends  by  illegal  means,  434. 

indictment,  435,  436. 

illegal  act  by  illegal  means,  437. 
act  has  been  consummated,  438. 

principal  and  accessory,  439. 

where   two   persons   only,   440. 

where  minds  influenced  by  speech,  441. 


Index  1393 

(references  are  to  sections) 

Conspiracy — Continued. 

declarations  made  before  or  after  commission  of  offense,  443. 

old  rule  as  to  prima  facie  case,  444. 
Constitution   of   United    States,    powers   of   states    in   counterfeiting,    447. 
Contempts  of  court,  Chapter  XXV. 

quasi  criminal   offense,   449. 

definition,  449. 

legislature,  powers  same  as  of  courts,  450,  452,  460. 

other  assemblies,  451. 

English  Parliament,  453. 

inferior  legislative  bodies,  454. 

of  courts,  455. 

In  England,  455. 
appeal,  456,  459,  463. 
habeas  corpus,  456,  458,  463. 

committed  in  another  court,  effect  of,  457. 

judgment  must  show,  461. 
summary  manner,  468. 
courts  not  of  record,  462. 

pardon  for,  464. 

whether  criminal  offense,  465. 

comments  on  cases  pending,  466. 

intent  of  contemnor,  468. 

punishment,  470. 

crime  against  general  law,  471. 

constitutional  courts,  472. 
Cooling  time,   in  manslaughter,   458. 
Corporations,  141-144. 

crimes  may  be  held  for,  141,  143. 

early  history,   142. 

legislature  may  punish,   144. 

subject  to  police  regulations,  37. 
Counterfeiting,  Chapter  XXIV. 

definition  and  description,  445. 

English  statutes,  446. 

Constitution  of  United  States,  power  of  states  under,  447. 

custom  cannot  legalize  a  coin,  448. 

distinguished  from  forgery,  448a. 
Court  Martial,  See  Military  Law. 
Courts, 

where  held,  83.  , 

superior  and  inferior,  85. 

presumptions  of  courts  of  record,  86. 

not  of  record,  462. 

constitutional,  472. 

proceedings  of,  publication,  607,  608. 

court  made  laws,  22. 
C.  L.— 88 


1394  Index 

(repekences  are  to  seciiqns) 

Crime,  in  army  and  navy,  46. 

defendant  not  responsible  when  forced  to  commit,  138-139. 

of  corporations,  141. 

at  common  law,  24,  26,  27. 
Criminal  law,  definition,  1. 

crimes  at  common  law,  24. 

derivation  of  our  criminal  law,  4. 

relation  to  military  law,  43. 
Cumulative  statutes,  326. 

D 

Declarations,  made  before  or  after  commission   of   offense  of  conspiracy, 
443. 
dying,  267. 
Divisions  of  government,  18-21. 
Duelling,  539,  540. 

E 

Eavesdropping,  643. 
Embezzlement,   Chapter  XXVII. 
definition,  478. 

distinguished  from  larceny,  478,  479. 
at  common  law,  479,  481. 
statutory,  480. 

clerks,  servants  and  the  like,  481,  484. 
authority  of  legislature,  481. 
indictment,  481. 
property,  kinds  of,  482. 

illegally  acquired  by  principal,  483. 
relation  of  trust,  484,  485. 

holding  out  as  agent,  485. 
persons  of  such  classes  as  in  statutes,  486. 

definition  of  terms,  487. 
compensation  not  necessary,  488. 
part   owners,   489. 

borrowing  money  for  specific  purpose,  489a. 
employment,  when  of  a  special  nature,  490. 
intent,  491. 

return  of  property,  offer  of,  492. 
Embracery,  407. 
Employee  defined,  487. 
Escape  and  Rescue,  see  Prison  Breach. 
Ex  post  facto  law,  12-14. 

evidence,  altering  rules  of,  14. 

instances  where  do  not  apply,  13. 

defendnnt  ni.-iy  elect  to  he  tried  undor  the  old  hiw,  15. 


Index  1395 

(references  are  to  sections) 

Evidence, 

in  forgery,  524,  525. 

not  necessarj'  that  it  be  believed,  667. 

altering  rules  of,  14. 

suppression  of,  267. 
Exposing  the  person,  see  Nuisance. 
Extortion,  Chapter  XXVI. 

definition,  473. 

oflEicers  of  government,  474. 

usurper,  476. 

intent,  477. 

P 

False  imprisonment,  621-624. 

must  be  taken  against  will,  622. 
indictment,  623. 

form  of,  624. 
False  pretenses.  Chapter  XXVII. 

common  law  cheats  and  false  pretenses,  493. 
English  statutes,  494. 
character  of,  495. 

must  relate  to  some  existing  or  passed  fact,  495. 

promise  of  marriage,  495. 

degree  of,  496. 

promise  and  expression  of  opinions,  498,  499. 

statement  as  to  wealth,  498. 
sellers  and  purchasers  may  both  be  guilty,  499. 
non-criminal  lie,  500. 
by  act  of  silence,  501. 

elements,  502. 
intent,  503. 

defendant  must  have  knowledge  of  falsity  of  statements,  504. 
prosecutor  must  have  believed  statements,  505. 
caveat  emptor  applies,  505. 
Federal  courts,  perjury  in,  664. 

no  degrees  of  murder  in,  544. 
Felony, 

right  to  kill  to  prevent  commission  of,  31. 
misprision  of,  30. 
compounding  of,  32. 

definition,   32. 

at  common  law  an  accessory,  32. 

as  applied  to  misdemeanor  33,  34. 
definition,  35. 

punishments  that  have  been  abolished,  35. 
Forgery,  Chapter  XXIX. 

distinguished  from  counterfeiting,  448a. 


1396  Index 

(REFERENCES    ARE   TO    SECTIONS) 

Forgery — Continued, 
definition,  506. 
how  committed,  507-508. 
material  change,  507. 
filling  in  blanks,  508. 
signing  as  the  agent,  509. 
ratification  by  principal,  510. 
falsely  personating  another,  511. 
altering  original  entries,  512. 
antedating  an  instrument,  513. 
falsifying  an  instrument,  513. 
falsifying  records,  514. 
falsely  reading  instrument,  515. 
instrument,  character  of,  516. 
must  affect  property,  516. 
recording  as  publication,  519. 

must  be  set  out  in  words  and  figures,  in  indictment,  520. 
what  instrument  basis  of  forgery,  521. 
indictment,  522. 

averment,  language  of  statute  sufficient,  522. 
may  contain  count  for  the  passing  of,  523. 
proof  of  one  not  admissible  to  establish  other,  523,  527. 
evidence,  524. 

laws  of  Scotland,  525. 

not  necessary  to  show  accused  received  any  benefit,  525. 
proof  of  passing,  when  complete,  526. 
attempt  to  commit,  527. 
Fugitive  from  justice,  68-70. 
Fundamental  laws  of  the  land,  7. 
extracts  from  constitution,  8. 
prohibitions  to  states,  9. 


Government,  City,  power  of,  718. 
Gaming  and  gaming  house,  647. 
Gossip,  scandal,  638. 
Guardian  and  ward,  185. 


Habeas  corpus, 

under  military  law,  44,  47,  53. 

in  contempts,  456,  458,  463. 
Homicide,  Chapter  XXX. 

Justifiable,  31. 

committed  on  border  state,  96,  100. 

result  of  voluntary  intoxication,   117,   120. 

when  committed  under  misconception  of  facts,  153. 


Index  1397 

(references  are  to  sections) 
Homicide — Continued, 
definition,  528. 
divisions,  528. 
Murder,  defined,  529. 

malice,  need  not  be  against  person  killed,  530.    See  also  "Malice." 
express,  532. 
implied,  531. 
continuance  of,  534. 
corpus  delicti,  presumption  from  proof  of,  533. 
physician,  ignorance  and  negligence  of,  535. 
first  wound,  536. 

by  other  than  physical  means,  537. 
person  must  be  alive  when  wound  inflicted,  538. 
duelling,  539,  540. 
degrees,  541. 

under  federal  statutes,  no  degrees,  544. 
lying  in  wait,  poison,  etc.,  542. 
Manslaughter,  545-551. 
definition,  545. 

exception  to  rule  reducing  murder  to  manslaughter,  545a. 
new  provocation,  546. 
insulting  words  to  female  relative,  547. 
cooling  time,  548. 

killing  officer  while  making  arrest,  549-551. 
involuntary,  522-554. 
definition,  552. 

misdemeanors  merely  mala  prohibita,  553. 
negligent  acts,  554. 
Self-defense,  555-567. 
illustrations,  555. 
apprehension  of  danger,  556. 

cowardice,  fear,  etc.,  556a. 
threats  to  take  life,  557. 
non-felonious  assaults,  558,  564. 
assault  upon  habitation,  559. 
attack  upon  property  other  than  habitation,  560. 
homicide  committed  in  the  prevention  of  a  felony,  561. 
members  of  family,  right  to  defend,  562. 
degree  of  force  used,  563. 

wrongful  act  contributing  to  necessity  to  kill,  565. 
retreat  and  pursuit,  566. 
spring  guns,  567. 
assaults  to  murder,  568,  569. 
intent,  569. 
Husband  and  wife,  182,  183. 

distinction  as  to  relative  rights,  25. 
presumption  of  coercion  by  husband,  237,  250. 


1398  Index 

(references  are  to  sections) 
Husband  and  wife — Continued. 

right  of  husband  to  chastise,  360. 

■wife's  possession,  585. 

assault  to  rape  by  husband,  691. 
Hypnotic  influences,  119. 
Hypothetical  questions,  129. 

I 

Idiots, 

definition,  103. 
kinds,  105. 

lucid  interval,  104. 

insane  delusion,  106,  107. 

burden  on  defendant  to  show  incapacity,  108,  109. 
Ignorance  of  the  law,  145-153. 

exceptions,  146. 

special  intent,  147. 
larceny,  148,  149. 

ignorance  of  facts,  151. 

mistake,  152,  153. 
Immunities,  25. 
Indictment, 

discussion,  210-214. 

defective,  210,  212. 

variance  between  indictment  and  proof,  211. 

court  must  have   jurisdiction,   212. 

different  counts,  213. 

test  whether  two  charges  are  the  same,  221. 

in  bigamy,  389. 

in  conspiracy,  435,  436. 

in  contempts,  468. 

in  extortion,  477. 

in  embezzlement,  481. 

in  forgery,  522,  523. 

in  false  imprisonment,  623,  624. 

in  mayhem,  632. 

in  prison  breach,   677. 

in  robbery,  701. 
Infants,  capacity  to  commit  crimes,  131,  132. 

rule  in  southern  states,  133; 
Intent,  guilt  follows,  140,  154. 

criminal   intent,   Chapter  VII. 

evil  purpose  of  which  law  takes  notice,  154. 
to  commit  specific  crime,  155,  159. 
mistake,  misadventure  or  accident,  156. 

accident  or  mistake,  not  a  crime,  157. 

depends  upon  consequent  act,  158. 


Index  1399 

(references  are  to  sections) 
Intent,  guilt  follows — Continuotl. 
how  measured,  160,  161. 
third  person,  162. 
by  what  evidenced,  163. 
guilty  knowledge,  164. 

in  pursuit  of  peaceable  and  lawful  business,  165. 
in  arson,  345b. 

in  assault  and  battery,  350,  351,  374-378. 
in  burglary,  416. 
in  embezzlement,  492. 
in  false  pretenses,  503. 
in  assault  to  murder,  569. 
in  malicious  mischief,  626. 
in  mayhem,  631. 
in  robbery,  699. 

in  non-observance  of  Sabbath,  722. 
International  law,  Chapter  IV. 
offenses  against  nations,  57. 
part  of  criminal  law,  58. 
each  nation  sovereign,  59. 
comity  of  nations,  60. 
piracy,  definition,  62. 

jurisdiction,  63,  73. 
of  Congress,  63. 
of  several  states,  63. 
laws  of  United  States,  64. 

as  to  foreigners,  65. 
slave  trades,  66. 
ambassadors,  67. 
fugitive  from  justice,  68. 

between  the  states,  69. 

no  authority  to  compel  compliance,  69. 
trial  for  crime  other  than  the  crime  extradicted,  70. 
Insanity, 

right  and  wrong  theory,  108. 
moral,  111-113. 

irresistible  impulse,  112. 
defendant  presumed  to  be  sane,  121,  122. 
plea  of  defendant,  123,  124. 
state  must  prove  sanity,  when,  125. 
presumed  to  continue,  when,  126. 

author's  view,  127. 
opinions  of  non-expert  witnesses,  128. 
hypothetical  questions,  129. 
insane  after  conviction,  130. 

before  trial,  130. 


UOO  Index 

(refekexces  are  to  sections) 

Intoxication,  114-130. 

mitigation  of  crime,  114. 
voluntary  drinking,   115-117,   120. 

J 

Jeopardy,  Chapter  IX. 

law  of  universal  conscience,  198. 

military  laws,  202. 

concurrent  jurisdiction,  203. 

punishments  cannot  be  inflicted  jointly,  204. 

acquittal  of  one  where  there  is  a  joint  intent,  204,  205. 

offenses  containing  common  elements,  206. 

different  crimes  from  same  facts,  207. 

when  in  jeopardy,  209,  222,  232. 

indictment,  210-214. 
New  trial,  214,  215. 

two  offenses  committed  by  same  act,  217. 
larceny  of  different  persons  at  the  same  time,  218. 
forged  paper,  passing  of,  219. 
arraignment,  222. 
jury,  discharge  of,  223,  228. 
discretion  of  court,  223. 
failure  to  agree,  224. 
separation  of,  231. 
waiver  of  rights,  225-231. 
nolle  prosequi,  232. 
Judge,  an  interested  party,  81. 

mistake  of,  how  corrected,  83. 
Judgments,  validity,   79. 

in  courts  of  general  jurisdiction,  80. 
Judicial  notice,  in  pardons,  308. 
Jurisdiction,  Chapter  V. 

territorial  of  United  States,  71. 
high  seas,  72. 

maritime   and   admiralty,   74. 
of  states,  78,  89. 

out  of  jurisdiction  of  any  particular  state,  75. 
bordering  on  sea  coast,  76. 
of  United  States  district  court,  77. 
of  judge,  where  interested  party,  81. 
consent  of  parties  cannot  confer,  82. 
court,  where  held,  83. 
presumptions,  86. 

conferred   by  constitution   and   laws,   87. 
political  questions,  88. 
duties  of  ofliccrs,  90. 
larceny,  91-94. 
conflictB,  99. 


Index  1401 


(references  are  to  sections) 

Jury,  discharge  of,  223,  228. 

discretion  with  the  court,  223. 
failure  to  agree,  223. 
separation  of,  231. 
waiver  of, 

in  felony,  an  exception,  225. 

in  America,  227,  229. 
to  remain  together,  230. 
arraignment,  222. 


Kidnapping,  and  false  imprisonment,  Chapter  XXXIII. 
definition,  619-620. 
false  imprisonment,  621. 

must  be  taken  against  will,  622. 
indictment,  623. 
form  of,  624. 

L 

Larceny,  Chapter  XXXI. 
jurisdiction,  91,  93,  94. 
foreign  state  and  state  of  union,  92. 
of  different  persons  at  same  time,  218. 
distinguished  from  embezzlement,  478-479. 
at  common  law,  493,  571. 
definition,  570. 
of  property,  571-576,  587. 
ownership  and  possession,  577-586. 

conversion  after  term  of  bailment  of  deceased  person,  580. 

lost  property,  finder  of,  581. 

allegation  of,  when  in  corporation,  582. 

delivered  for  a  specific  purpose,  584. 

two   questions   of  possession,   586. 
intent,  587-601. 

right  and  title  of  property,  587. 

lucri  causa,  588. 

repentance,  not  a  defense,  589. 

value  of  property,  rule  in  estimating,  590. 

minors  and  deceased  persons,  591. 

consent  to  taking,  592. 

entrapping  the  thief,  593. 

attempt,  594. 

receivers,  offense  of,  595,  597-598. 

restored  to  owner,  599. 

theft-bote,  601. 
exception  to  rule  "presumed  to  know  the  law,"  148,  149. 


.1402  I^i>,EX 

{REFERENCES    ARE    TO    SECTIONS) 

Laws,  court  made,  22. 
of  parent  country,  2. 

uninhabited  country,  2. 

effect  of  conquest  on  laws  of  a  country',  2. 

as  to  foreigners,  64,  65. 
Legislature, 

powers  in  contempts,  450-452,  460. 

authority  to  make  an  act  embezzlement,  481. 

in  libel,  609. 

powers,  in  general,  18,  19. 

how  conducted,  20. 

distinction  between  judicial  and  legislative  powers,  21. 

how  restricted,  19. 
Libel,  Chapter  XXXII. 

definition,  174,  175,  602. 

justification,  603. 

breach  of  peace,  604. 

per  se,  605. 

indictable,  606. 

court  proceedings,  publication  of,  607. 
privileged,  608. 

legislatures,  609. 

communications  between  persons  in  interest,  610. 

inquiries  as  to  another's  character,  611. 

reports  of  mercantile  agencies,  612. 

candidates  for  office,  613. 

public  offices,  615. 

elements,  616. 

publication,  what  constitutes,   617. 

criminal  slander,  618. 

M 

Malice, 

proof  of,  must  be  beyond  reasonable  doubt,   125. 

what  constitutes,  166. 

in  murder,  167-169;   530-534;   529. 
express  and  implied,  531-532. 

how  shown,  170,  171. 

in  arson,  172. 

in  malicious  mischief,  173. 

in  libel,  174-175. 
Malicious  intent,  see  "Intent." 

in  insanity,  124. 
Malicious  mischief,  Chapter   XXXIV  and    173. 

at  common  law,  625. 

intent,  626. 

against   owner  of  property,  626. 


Index  1403 

(repeeences  are  to  sections) 

Mandamus,  90. 

Maritime  and  admiralty  jurisdiction,  74. 
Marriage,  defined,  391,  392. 
how  may  be  proved,  390. 
incestuous,  395. 
place  of,  395. 

statements  as  to  former  marriage,  295. 
promise  of,  495,  704. 
see  also  "Bigamy." 
Married  women,  134-140. 
presumptions,  134-137. 

does  not  extend  to  felony,  135. 
as  a  defense,  250. 
wife  not  competent  to  testify  at  common  law  in  bigamy,  394. 
as  to  keeping  bawdy  or  disorderly  house,  639. 
Master  and  servant, 

right  of  master  to  chastise,  360. 
Mayhem,  Chapter  XXXV. 
at  common  law,  627,  629. 
early  English  statutes,  628. 
under  the  statutes,  630. 
intent,  631. 
indictment,  632. 

"feloniously,"  not  necessary  to  state,  632. 
Mercantile  agencies,  reports  of,  012. 
Military  law.  Chapter  III. 

distinction  between  civil  and  military,  41. 
responsibility  to  two  laws  at  same  time,  42. 

soldier,  42, 
relation  to  criminal  law,  43. 
authority  over  the  military,  43. 

inherent  in  every  government,  44. 
law  martial,  45. 

army  and  navy,  crimes  committed  in,  46. 
court  martial,  47,  48. 

who  may  convene,  48. 
jurisdiction,  49,  53,  202. 

civil  courts,  power  to  review,  50. 
conviction  in  military  courts,  51. 
when  attaches,  54. 
who  subject  to  military  duty,  55. 
state  militia,  56. 
international  comity,  52. 
Misprision,  Chapter  XXXVI. 
at  common  law,  633. 
in  United  States,  633,  634. 


l-i04  Index 

(refeeences  are  to  sections) 
Misprision — Continued. 

what  constitutes,  634. 

See  also  Treason  and  Felony. 
Misdemeanor,  definition,  36. 

classes,  36. 

morality,  not  a  test,  36. 

mala  prohibita,  39. 

no  attempt  applied,  372. 
Monopolies,  Chapter  XXXVII. 

at  common  law,  635. 

nature  of,  635. 

N 
Nations,  offenses  against,  57. 

see  also  "International  Law." 
New  Trial. 

at  common  law,  214. 

does  not  operate  against  jeopardy,  214,  215. 
Non-criminal  lie,  500. 
Nolle  prosequi,  232. 
Notice,  judicial,  308. 
Nuisances,  Chapter  XXXVIII. 

possesses  both  civil  and  criminal  character,  40. 
what  includes,  636. 
bawdy  and  disorderly  houses, 
definition,  637. 
gossip,  638. 
married  women,  639. 
common  scolds,  640. 
obsolete  in  America,  640. 
offensive  trades,  641. 
gaming  and  ganil)ling  houses,  647. 
exposing  the  person,  644-646. 
in  private  places,  645. 
under  statutes,  646. 
public  shows,  650. 
eavesdropping,  643. 
obstruction  of  highways,  648-650, 
necessity  may  justify,  648. 
custom  will   not  justify,  649. 
public  shows,  650. 
drunkenness,  651. 


OflQce,  defined,  487. 

candidates  for,  613. 
public,  615. 


Index  140;j 

(OEFERENCKS    ARE    TO    SECTIONS) 

Officers,  of  government,  474. 

de  facto,  475. 

usurper,  476. 

killing  while  making  arrest,  549-551. 

negligent  of  duty,  678. 

duties  of,  90. 

presumption  as  to,  269, 
Opinions,  of  non-expert  witnesses,  128. 
Original  settlers,  3. 

carry  with  them  laws  of  mother  country,  3. 

how  these  laws  are  changed,  3. 

P 

Pardon,  Chapter  IX. 

at  common  law,  297,  299. 

in  United  States,  with  executive,  298,  299,  307. 

exception,  299,  309. 
definition  and  classes,  301. 
unconditional,   302. 
conditional,  303. 
general  amnesty,  304. 
obtained  by  fraud,  or  deception,  305. 
must  be  delivered  and  accepted,  306. 
in  impeachment,  309. 
in  contempts,  310,  464. 
Parent  and  Child, 

duties  and  obligations  of  parent,  181,  176,  178. 
mutual  obligations,  177,  179,  180. 
duties  the  strong  owe  to  the  weak,  178. 
may  chastise  the  child,  359. 
Partners,  in  conspiracy,  425. 
Perjury,  Chapter  XXXIX. 

attempt,  can  be  none  in  this,  370. 
definition,  652. 

at  common  law,  a  misdemeanor,  653. 
oath,  necessity  of,  654. 
corporeal,  655. 

administered  properly,  656,  657,  660. 
who  may  administer,  661. 
where  may  be  administered,  662. 
requirements  of  statutes  must  be  complied  with,  659. 
voluntary  appearance,  658. 

jurisdiction  of  person  and  subject  matter,  663. 
in  federal  courts,  664. 
facts  believed  to  be  true,  665. 
wilfully  and  corruptly,  666. 
matter  material  to  issue,  667. 


1406  1^°^^ 

(REFERENCES    ARE    TO    SECTIONS) 

Perjury— Continued. 

%vitness  compelled  to  testify  against  self,  668. 
corroboration,  669. 
Persons,  all  equal  before  the  law,  326a. 

Physicians,  .  -,        cor; 

ignorance  and  negligence  of  m  murder,  53o. 

Piracy,  62,  63,  73. 

Police  regulations, 

classes  of,  38. 

in  towns,  cities  and  states,  37. 
corporations,  subject  to,  37. 
Political  questions,  88. 
Presumptions,   Chapter   X. 
of  courts  of  record,  86. 
part  of  criminal  law,  233. 
how  created,  235. 
legislative  or  statutory,  235. 
definition,   235. 

of  incapacity  to  commit  crime,  237. 
of  death,  237,  248. 
of  coercion  by  husband,  237,  250. 
rebuttable,  238. 
burden  of  proof,  239. 
of  fact,  241. 

of  doing  those  things  required  by  law,  ^4Z. 
of  innocence,   243,  246. 

corpus  delicti,  effect  on,  243. 
of  sanity,  244,  251. 
defendant's  duty,  244. 
as  to  conspirators,  246. 
possession  of  recently  stolen  goods,  247. 

corpus  delicti,  from  proof  of,  253. 
of  continued  life,  249. 
as  to  married  women,  250. 
probable  results  of  a  man's  acts,  253. 
as  to  ages,  254. 
taking  property,  256. 
malice,  258. 

death  after  year  and  a  day,  259. 
as  to  lessor  grade  of  offonso,  259. 
character,  260. 
conflicting,  261. 

defendant  fleeing  from  country,  262. 
suppression  of,  264. 
as  to  judicial  confessions,  266. 
dying  declarations,  267. 
testimony  of  accomplice,  268. 


Index  1407 


(references  are  to  sections) 
Presumptions — Continued. 

as  to  officers,  269. 

of  previous  chaste  character,  705A. 
Preventative  justice,  Chapter  XL. 

nature  of,  670. 

security  after  conviction,  671,  674. 

at  common  law,   672,   673. 

under  the  statutes,  674. 

even  when  acquitted,  674. 

magistrate  must  have  summary  power,  674. 

extent  of  threat  and  probable  cause,  of  injury,  675. 
Principals  and  accessories,  Chapter  VIII. 

as  distinguished  from  accessories,  186. 

accessories,  186. 

effect  of  death  of  principal  accessory,  186. 

kinds,  187,  188. 

in  conspiracy,  439. 
Prison  breach,  escape  and  rescue,  Chapter  XLI. 

definition,  676. 

indictment,  677. 

officer  negligent  of  duty,  678. 

prisoner  escaping,  679. 

defendant  may  break,  when,  680, 

prisoner  must  be  held  by  legal  warrant  to  arrest,  681. 

negligent  escape,  682. 

voluntary  escape,  683-684. 

discharge  of  prisoner,  when,  682. 
Property,  kinds  of  in  embezzlement,  482. 

illegally  acquired  by  principal,  483. 

taking  of  property,  presumption  in,  256. 

see  also  subject  "Larceny." 

B 

Eape,  Chapter  XLIL 
definition,  685. 
force,  686,  687. 
consent,  687. 
resistance,  687. 
who  can  commit,  688. 

ways  of  committing,  689. 
assault  with  intent  to  commit,  689-692. 

force  necessary,  689. 

under  statutory  age,  690. 

by  husband  on  wife,  691. 

boy  under  14  years  of  age,  692. 

penetration  and  emission,  at  common  law,  692a. 
Ratification,  by  principal  in  forgery,  510. 


1408  Index 

(references  are  to  sections) 
Eeligion,  offenses  against,  see  Sunday  Laws. 
Eights,  waiver  of,  225,. 231. 

of  jury  in  felony,  225. 

at  common  law,  226. 

in  America,  227. 

that  cannot  be  waived,  228,  230-231. 

how  waived,  229. 

council  cannot  waive,  230. 
Eobbery,  Chapter  XLIII. 

definition,  693. 

taking  property  from  debtor,  694. 
of  the  force,  694a. 
of  the  fear,  695. 
sodomy,  fear  of  being  prosecuted  for,  696. 

taking  and  carrying  away,  697. 

value,  698,  700. 

intent,  must  be  fraudulent,  699. 

of  proof,  700. 
assault,  701. 

indictment,  701. 
Eout  and  riot. 

as  compared,  with  affray,  336. 

as  to  attempt,  371. 

See  also  "Unlawful  Assemblies." 


S 


Sabbath,  non-observance  of,  see  Sunday  Laws. 

Sailors,  may  be  chastised,  359. 

Sanity, 

when  state  must  prove,  125,  244. 

presumption  of,  244,  251. 
Scandal,  638. 
Seduction,  Chapter  XLIV. 

at  common  law,  702. 

definition,  703. 

promise  of  marriage,  495,  704. 

previous  chaste  character,  705. 
presumption  of,  705. 

burden  of  proof,  705a. 
Self  defense. 

in  affray,  337. 

in  assault  and  battcrj',  356. 

See  also  "Homicide." 
Sentence  and  punishment,  Chapter  XIII. 

at  common  law,  312-320. 

punishments  obsolete  in  America,  316. 

in  absence  of  statute,  315,  319,  324. 


Index  14U9 


(references  are  to  sections) 
Sentence  and  punishment — Continued, 
sentence,  when  imposed,  321. 

must  be  in  conformity  to  law,  322. 
motion  in  arrest  of  judgment,  322. 
modification  of,  324. 
cruel  and  inhuman  punishments,  325. 
judgment  below  tho  minimum,  324. 
greater  than  provided  by  law,  324, 
punishment  according  to  statute,  325. 
cumulative  statutes,  326. 
different  sexes,  326a. 
Servant,  defined,  487. 
Slander,  criminal,  618. 
See  also  "Libel." 
Slave  trade,  66. 
Sodomy,  Chapter  XLV. 
definition,  696,  706. 
assault  with  intent  to  commit,  707. 
per  OS,  707a. 
Statutes,  cumulative,  326. 

prohibitions  to  states  to  pass,  9. 
which  alter  rules  of  evidence,  14. 
see  also  Chapter  I,  also  719. 
Stolen  goods,  presumption  of,  247,  248. 
Sunday  Laws,  and  Offenses  against  Keligion,  Chapter  XLVL 
Christianity  a  part  of  common  law,  708. 
non-observance,  709. 
kinds  of  offenses,  710. 
blasphemy,  711. 
profane  swearing,  712,  713. 

single  instance  not  punishable,  713. 
non-observance  of  Sabbath,  714-722. 
on  what  grounds,  715. 
municipal  regulations,  716. 
Sunday  laws,  717. 
city  government,  powers  of,  718. 
statutes,  719. 
labor  excepted,  720. 

those  who  observe  other  day  than  Sunday,  721. 
intent,  72. 


Teachers  and  instructors,  184. 
Theft-bote,  601. 
Trades,  offensive,  641. 
Treason,  Chapter  XLVII. 

at  common  law,  26. 

distinction  between  felony  and  treason,  26,  30. 
C.  L.— 89 


1410  Index 

(references  are  to  sections) 

Treason — Continued. 

overt  act  necessary,  27. 

witnesses,  27. 

writing  containing  treasonable  matter,  27. 

misprision  of,  28. 

definition,  28. 

principles,  28. 
indictment,  29. 

not  indictable  in  this  country  as  known  at  common  law,  723,  724. 
Trustee,  definition,  487. 

V 

Unlawful  assemblies.  Chapter  XLVIII. 
definition  and  explanation,  725. 
rout,  725. 
riot,  725. 

persons  engaged  are  principles,  725. 
as  a  disturbance  of  the  peace,  726. 

W 

Witness, 

opinion  of  on  insanity,  128.  , 

in  treason,  127. 

answers  that  might  incriminate  self,  289. 

compelled  to  testify  against  self,  result  if,  668. 
Writ  of  error, 

in  criminal  cases  from  United  States  district  court,  77. 
Writing,  containing  treasonable  matter,  27. 


Part  III 

AGENTS  ABROAD,  Chapter  XLIX. 

every   customs  officer   must   rcndtM-   account,   727. 

account   must   be   sworn   to,   727. 

committing   perjury,  proceeded   against  in   I^.   S.,  727. 

consular  officer  failing  to  render  account,   728. 

commercial  agent,  etc.,  failing  to  ]K>rforni  duty,  729. 

false  certificate,  730. 

perjury  committed  before  Secretary   Legation,  7.n. 

offender  may  be  proceeded  against  in  any  r)istrict  U.  S.,  731. 

jiroof,  seal  and  signature  necessary,  731. 

forgery  of  seal  on  signature,  penalty,  731. 

assaults  iijjon   foreign  minister,  732. 

violating  passport,  732. 


Index  141 1 

(references  are  to  sections) 
AGENTS  ABROAD— Continued. 

suing  out  writs,  etc.,  against,  73.'{. 

person  suing  out  jiroccss,   punishment,   7.)4. 

BIRDS,  GEESE,  ETC.,  Chapter  L. 

birds  migratory,  insectivorous,  735. 

agricultural   department  rules  and   regulations,   735,   737. 

does  not  effect  State  laws,  735. 

unlawful  to  kill  and  ship  for  ex[)ort,  726. 

shipment  contrary   to   State   laws  prohibited,   738. 

arrest  for  violations,  without  warrant,  739. 

punishment  for  violating  Bird  Act,  740. 

open  season.  State  laws  as  to,  741. 

shipping  for  scientific  purposes,  742. 

invalidity  of  clause  of  Act,  effect,  743. 

breeding  farms  not  prohil)ited,   745. 

ADMIRALTY  AND  MARITIME  JURISDICTION,  Chapter  LI. 
when  committed  on  high  seas,  etc.   (272  P.  C),  746. 
within   maritime   jurisdiction   on   vessels   of   American   ownership,    etc. 

(272  P.  C),  746. 
on  Great  Lakes  upon  registered,  etc.,  vessels   (272  P.  C),  746. 
on  public  reservations,  etc.   (272  P.  C),  746. 
on  guano  keys,  islands,  etc.   (272  P.  C),  746. 
murder  defined;  first  degree  (273  P.  C),  747. 
manslaughter  defined;    voluntary    (274  P.  C),  748. 
involuntary   (274  P.  C),  748. 
punishment  for  murder   (275  P.  C),  749. 
manslaughter  (275  P.  C),  749. 

assault  with  attempt  to  commit  murder  or  rape  (276  P.  C),  750. 
assault  with  attempt  to  commit  other  felony  (276  P.  C),  750. 
punishment  for  assault  with  dangerous  weapon  (276  P.  C),  750. 
assault  by  striking,  etc.  (276  P.  C),  750. 
assault   (276  P.  C),  750. 

attempt  to  commit  murder  or  manslaughter  (277  P.  C),  751. 
punishment  for  rape   (278  P.  C),  752. 
rape,  1143. 

carnal  knowledge  of  female  under  sixteen   (279  P.  C),  753. 
seduction  of  female  passenger  by  officer  of  American  vessel   (280  P. 

C.),,754. 
effect  of  subsequent  marriage    (280   P.   C),   754. 
fine  for  use  of  child   (281  P.  C),  755. 
restriction  on  conviction  and  indictment  (281  P.  C),  755. 
loss  of  life  by  negligence,  etc.,  of  master,  owner,  etc.,  vessel   (282  P. 

C),  756. 
liability  of  officer  of  corporation   (282  P.  C),  756. 
mayhem,  maiming,  etc.   (283  P.  C),  757. 


1412  Index 

(references  are  to  sections) 
ADMIEALTY  AND  MARITIME  JUEISDICTION— Continued, 
robbery  by  force,  etc.  (284  P.  C),  758. 
arson  of  dwelling  house  (285  P.  C),  759. 
other  building  arsenal,  vessel    (286   P.   C),   760. 
larceny;  written  instruments,  etc.   (287  P.  C),  761. 
receiving,  etc.,  stolen  property   (288  P.  C),  762. 
offenses  under  State  laws  (289  P.  C),  763. 

CENSUS  LAWS,  Chapter  LII. 

all  persons  must  answer  all  questions,  764. 

person  over  18  years,  iranishment  failure  to  answer,  questions,  764. 
offering,  assistance  for  purpose  of  causing  inaccurate  enumeration,  764. 
agents  of  hotel,  boarding  house,  etc.,  must  furnish  name  of  occupants, 

etc.,  764,  772. 
unlawful  use  of  frank  punishment,  765,  767. 
willfully  withholding  information,  punishment,  766. 
consideration  for  appointing  enumerators,  etc.,  768,  770. 
failure  to  perform  duty  as  enumerator,  769. 
enumerator  giving  out  information,  769. 
swearing  falsely  by  enumerator,  etc.,  769,  771. 
making  false  certificate,  felony,  769. 
causing  false  statement  to  be  made,  769. 
persons  over   21   years  must   give  information,   772,   776. 
refusing  information  relative  to  hides,  773. 
packing  houses,  etc.,  to  give  information,   773. 
penalty  for  bribing  an  ofiicer,  774. 
officers  and  employees  failing  to  perform  duties,  771,  775. 

ELECTIVE  FRANCHISE  AND  CIVIL  RIGHTS,  Chapter  LIII. 
conspiracy  against  civil  rights  of  citizens   (19  P.  C),  778. 
punishment  for  depriving  citizens  of  civil  rights  under  color  of  law, 

etc.  (20  P.  C),  779. 
conspiracy  against  holding  federal  office,  etc.   (21  P.  C),  780. 
officer  unlawfully  having  troops  present  at  election  (22  P.  C),  781. 
intimidation  of  voters  by  Army  and  Navy  officers  (23  P.  C),  782. 
prescribing   qualifications   for   voters   Army   and   Navy   officers    (24   P. 

C),  783. 
interfering  with   election   officials   by   Army  and   Navy   officers    (25  P. 

C),  784. 
further  penalty  of  disqualification  for  office  (26  P.  C),  785. 
suffrage  by  officers,  etc.,  not  impaired   (26  P.  C),  785. 

COMMON  CARRIERS,  Chapter  LIV. 

maliciously  o|)('iiing  or  1)rcaking  car,  etc.,  787. 
breaking  witli  intent  to  remove,  787. 
corporation  and  officer  equally  guilty,  788,  889. 
failure  to  publish  tariffs,  punishment,  788. 


Index  141!) 

(references  are  to  sections) 
COMMON  CARRIERS— Continued. 

giving,  granting  or  soliciting  rebate,  punishment,  788. 

offense  begun  in  one  jurisdiction  and  completed  where  prosecuted,  7S8. 

punishment  for  violating  act  July  14,  1870,  789. 

embezzlement  officer.     Deserter,  punishment,   790. 

discrimination  in  rates  and  charges,  punishment,  791. 

false  billing,  etc.,  without  connivance  of  carrier,  791. 

fraudulent  statement  or  entry  to  obtain  refund,  791. 

any  person  soliciting  carrier  to  discriminate,  criminal,  penalty,  791. 

Interstate  Commerce  Commission  may  prescribe  forms,  etc.,  792. 

failure  to  keep  correct  entries  and  records,  792. 

commission  may  order  destruction  of  records,  792. 

examiner  divulging  information,  792. 

falsely   altered,   falsely   printed   bill   of   lading,   793. 

carrier  by  water,  what  acts  illegal,  794. 

divulging   information    without   consent    of    shipper,    punishment,    79o. 

refusal  to  carry  mail  by  water,  punishment,  796. 

unlawful  to  be  officer  of  more  than  one  carrier,  punishment,  797. 

officer   common   carrier   disclosing   information,   1373. 

tax  on  drugs  does  not  apply,  1647. 

COPYRIGHTS,  Chapter  LV. 

fraudulent  intent  impressing  copyright.     Punishment,  799. 

willfully  infringing  for  profits,  800. 

criminal  prosecution,  limitation  of,  801. 

false  affidavit  to  obtain,  802. 

type  set  in  book  in  United  States,  803. 

OFFENSES  AGAINST  CURRENCY,  COINAGE,  ETC.,  Chapter  LVI. 

meaning  of  "obligation  or  other  security  of  the  United  States"   (147 

P.  C),  805. 
punishment  for  counterfeiting  securities   (148  P.   C),  806. 
counterfeiting  uational  bank  notes   (149  P.   C),  807. 
uttering,  etc.,  false  national  bank  notes  (150  P.  C),  809. 
unauthorized  use  of  plates,  etc.  (151  P.  C),  810. 
making,  selling,  etc.,  counterfeit  plates,  etc.    (151  P.  C),  810. 
printing,  etc.,  engraving  similar  to  securities   (151  P.  C),  810. 
unauthorized  possession  of  distinctive  paper   (151  P.  C),  810. 
uttering,  etc.,  false  securities   (152  P.  C),  811. 
taking    impressions,    etc.,    of   dies,    etc.,   used    for    securities    (153    P. 

C),  812. 
unlawful  possession  of  impressions  of  dies,  etc.   (154  P.  C),  813. 
dealing  in  false  securities,  etc.   (154  P.  C),  814. 
unlawfully  taking  away  dies,  plates,  paper,  etc.  (155  P.  C),  815. 
counterfeiting,  etc.,  foreign  securities   (156  P.  C),  816. 
uttering,  etc.,  false  foreign  securities  (157  P.  C),  817. 
counterfeiting  foreign  bank  notes,  etc.    (158  P.  C),  818. 


1414  Index 

(references  are  to  sections) 
OFFENSES  AGAINST  CUEEENCY,  COINAGE,  ETC.— Continued, 
uttering^  etc.,  false  foreign  bank  notes,  etc.    (159  P.  C),  819. 
having  in  possession  false  foreign  bank  notes,  etc.  (160  P.  C),  820. 
unlawful  possession   of  plates,  etc.,   of  foreign   bank   notes,   etc.    (161 

P.  C),  821. 
fraudulently  piercing  bank  notes   (162  P.  C),  822. 
counterfeiting,  etc.,  gold  or  silver  coins   (163  P.  C),  823. 
counterfeiting,  etc.,  minor  coins   (164  P.  C),  824. 
falsifying  coins  by  mutilation,  etc.    (165  P.  C),   825. 
officers  of  the  mint   debasing,  etc.,  coins    (166   P.   C),   826. 
making,  etc.,  tokens  in  imitation  of  coins   (167  P.  C),  827. 
making,   etc.,  devices  in  imitation  of  coins    (168  P.   C),  828. 
making  hubs,  dies,  etc.,  for  counterfeiting  coins   (169  P.  C),  829. 
foreign  coins   (170  P.  C),  830. 

making,  etc.,  advertisements  similar  to  coins   (171  P.  C),  831. 
forfeiture  of  counterfeits,  plates,  etc.  (172  P.  C),  832. 
issue  of  search  warrants  (173  P.  C),  833. 
punishment    for    officers    circulating    bank    notes    aft^r    expiration    of 

charter  (174  P.  C),  834. 
circulation  permitted  (174  P.  C),  834. 
uttering,    etc.,    advertisements    similar    to    national    currency    (175    P. 

C),  835. 
willfully  mutilating  national  currency   (176  P.  C),  836. 
making   advertisements   similar   to   bonds   or   other   securities    (177   P. 

C),   837 
putting   advertisements   on   securities    (177   P.   C),   837. 
issuing  notes,  etc.,  of  less  than  one  dollar  to  be  used   as  monoy    (178 

P.  C),  838. 

CUSTOMS  AND  DUTIES,  Chapter  LVII. 

inspector  may  put  locks  on  hatches  of  vessels,  840. 

master  liable  to  penalty,  840. 

master  obstructing  officer  going  on  vessel,  841. 

collector  of  duties  can  havi-  no   interest   in  vessel,  842. 

draw  lock  unlawful,  843. 

obliteration  of  marks  on  packages  by  revenue  officer,  844. 

importer   fraudulently   opening  warehouse,   845. 

fraudulently  concealing  goods,  846. 

failure   to   proceed   to   port,   felony,  847. 

imf/orting  goods  contrary  to  law,  848. 

refusal  to  assist  officer  in  making  seizures,  849. 

United  States  officer  receiving  informer's  compensation,   S^A). 

officer  of  customs  rebating — felony,   851. 

smuggling  goods  under  act  Feby.  27,  1877,  852. 

unauthorized   person    breaking   seal,   etc.,   of   vessel,   853. 

vessel  must  discharge  cargo  in-  day  time,  854. 

unloading  vessel  in   violation  of  sec,  25,  act  .Tune  26,  1884,  855. 


Index  141.') 

(references    are    to    SECTIONS) 

CUSTOMS  AND  DUTIES— Continued. 

protest  against  decision  of  collector  under  act  Oct.  3,  1913,  856. 

appraisers  under  act  Oct.  3,  1913,  857. 

willfully  swearing  falsely  before  ajipraiser,  858. 

offering  or  giving  bribe  to  employee  of  U.  S.  act  Oct.  3,  1913,  859. 

accepting  bribe  act  Oct.  3,  1913,  860. 

OFFENSES  RELATING  TO  OFFICIAL  DUTIES,  Chapter  LVIII. 

punishment  for  extortion  under  color  of  official  position  (85  P.  C. ;, 
•      862. 

receipting  for  greater  than  amount  paid   (86  P.  C),  863. 

unlawful  use  of  public  money  by  disbursing  officer   (87  P.  C),  864. 

failure  to  safely  keep  deposits  of  public  money  (88  P.  C),  865. 

custodian  failing  to  keep  public  moneys,  etc.   (89  P.  C),  866. 

failure  to  make  deposits  as  required  (91  P.  C),  868. 

failure  of  officer  to  render  accounts   (90  P.  C),  867. 

the  six  preceding  sections  apply  to  all  persons  charged  with  safe 
keeping  public  funds  (92  P.  C),  869. 

transcript  from  book  of  treasury  prima  facie  evidence  of  embezzle- 
ment  (93  P.  C),  870. 

refusal  to  disburse  moneys  promptly  as  required  jirima  facie  (94  P. 
C),  871. 

evidence  of  conversion  by  an  officer  (95  P.  C),  872. 

banker  receiving  deposit  from  disbursing  officer  (96  P.  C),  873. 

embezzlement  by  revenue  officer   (97  P.  C),  874. 

officer  contracting  beyond  approi^riation   (98  P.  C),  875. 

officer,  U.   S.   court  failing  deposit  money    (99   P.  C),  876. 

receiving,  loaning,  etc.,  from  registry  of  court  is  embezzlement  (100 
P.  C),  877. 

officer  failing  to  make  return  of  reports   (101  P.  C),  878. 

obscene  literature,  aiding  in  (102  P.  C),  879. 

officer  forbidden  from  trading  in  public  property  (103  P.  C),  880. 

purchasing  witness  fees  by  officer  of  court  (104  P.  C),  881. 

falsely  certifying  record  of  deed,  etc.,  by  officer  (105  P.  C),  882. 

inspector  of  steamboats  receiving  illegal  fees  (107  P.  C),  884. 

officer  giving  false  certificate   (106  P.  C),  883. 

demanding  fee  for  services  from  prisoner,  punishment  (108  P.  C),  885. 

executive  officer,  member  of  Congress  and  Senate  acting  as  agent  for 
prosecuting — punishment    (109   P.  C),  886. 

member  of  Congress  accepting  bribe  for  act  of  legislature  (110  P. 
C),  887. 

attempting  to  bribe  member  of  Congress  in  legislative  matter  (111  P. 
C),  888. 

member  of  Congress  receiving  pay  for  obtaining  public  contract,  etc. 
(112  P.  C),  889. 

offering  to  give  pay  for  obtaining  puldic  contract  (112  P.  C),  889. 


1416  Index 

(references  are  to  sections) 
OFFENSES  EELATING  TO  OFFICIAL  DUTIES— Continued. 

member    of    Congress    or    other    official   receiving   pay    for    services    in 
relation  to  public  contracts,  etc.   (112  P.  C),  889. 

member  of  Congress  having  interest  in  public  contract,  etc.,  contracts 
made  void   (113  P.  C),  890. 

contracts  void   (114  P.  C),  891. 

repayment  of  money  advanced,  suit  to  recover  (114  P.  C),  891. 

official  making  contracts,  etc.,  with  members  of  Congress   (115  P.  C), 
892. 

exception  as  corporations,  etc.,  as  to  sec.  114  and  115  (116  P.  C),  893. 

official  accepting  bribe,  etc.  (117  P.  C),  894. 

political    assessments    from    governments    employees,    by    members    of 
Congress   (118  P.   C),  895. 

contribution  not  to  be  received  in  building,  etc.   (119  P.  C),  896. 

one  officer  cannot  discharge  another  for  failure  to  give  political  con- 
tribution (120  P.  C),  897. 

contributions  for  political  purposes  prohibited  (121  P.  C),  898. 

not  to  be  paid  .tp.menibers,  etc.,  by  employees  (21  P.  C), 

punishment  lor  violations  (122  P.  C),  899. 

jiunishment   for   giving   advance   information   of   crop   report    (123    P. 
C),  900. 

official  knowingly  issuing  false  croi>  reports  (124  P.  C),  901. 

ESPIONAGE  ACT   (Title  I.),  Chapter  LIX. 

obtaining  information  against  Government,  903. 

obtaining  copies  of  instruments,  etc.,  relating  to  national  defense,  903. 

aiding  in  obtaining  copies,  etc.,  903. 

gross  negligence  in  permitting  another  to  secure  information,  etc.,  903. 

interfering  with   operation  of  Army  and  Navy,  904. 

abusive  and  violent  criticism  of  Army  and  Navy,  904. 

willfully  making  false  statement  by  two  or  more  persons,  905. 

punishment  for  harboring,  907. 

communication   with   foreign   governments,   908. 

in  time  of  war,  attempting  to  communicate  with  enemy,  908. 

in  time  of  war,  president  may  prohibit  certain  things,  909. 

this  title  does  not  effect  Court  Martial,  910. 

this  title  extends  to  all  territories,  etc.,  911. 

act  March  31,  1911,  repeal,  912. 

Espionage  Act  (Title  II.),  Chapter  LIX. 

secretary  of  Treasury  may  make  rules  affecting  vessels,  913. 
vessels  forfeited  if  rules  not  ol)eyed,  914. 
injury  of  vessels,  punishment,  915. 
president  may  enforce  this  title,  916. 

Espionage  Act  (Title  III.),  Chapter  LIX. 

injuring  vessel  engaged  in  foreign  comiiicrce,  917. 


Index  1417 

(references  are  to  sections) 
Espionage   Act    (Title   IV.),  Chapter  LTX. 

violently  interfering  with  foreign  commerce,  918. 

Espionage  Act    (Title  V.),  Chapter  LIX. 
enforcing  neutrality  laws,  919. 
armed  vessels  may  be  detained,  920. 
sending  armed  vessels  to  belligerent,  921. 
manifests  to  be  delivered  before  departure  of  vessel,  922. 
clearance  may  be  refused,  923. 
punishment  for  unlawful  departure,  924. 
alien  belligerent  interned,  925. 
sec.  13  Criminal  Code,  amended,  926. 

punishment,  furnishing  money,  etc.,  against  foreign  state,  926. 
president  may  enforce  this  title,  927. 
sec.  15  Criminal  Code,  amended,  928. 
may  compel  foreign  vessel  to  depart,  928. 
former  laws  repealed,  929. 

ionage  Act   (Title  VI.),  Chapter  LIX. 
arms  etc.,  for  export,  930. 
may  apply  for  warrant,  931. 
owner  may  petition  for  restoration,  932. 
libel   proceedings,    933. 
procedure  of  admiralty,  934. 
lawful  export  excepted,  935. 
President  may  release,  936. 

Espionage  Act  (Title  VII.),  Chapter  LIX. 
certain   exports   unlawful,   938. 
punishment  for  violating  this  title,  939. 
vessels  carrying  prohibited  articles,  940. 

Espionage  Act   (Title  VIII.),  Chapter  LIX. 

knowingly  making  false  statement  under  oath,  941. 

punishment  for  pretending  to  be  foreign  officer,  942. 

punishment  for  acting  for  foreign  government  without  authority,  943. 

term  'foreign  government'  construed,  944. 

Espionage  Act   (Title  IX.),  Chapter  LIX. 
passports,    946. 

application  for  passports,  false  statement,  947. 
application  for  passports,  false  statement,  947. 
punishment  for  using  another's  passport,  948. 
counterfeiting  passport,  949. 

Espionage   Act    (Title   X.),   Chapter  LIX. 

counterfeiting  government  seal,  punishment,  950. 
forging  government  seal,  punishment,  951. 
forging  military  permits  and  passes,   952. 


1418  Index 

(referekces  are  to  sections) 
Espionage  Act   (Title  XI.),  Chapter  LIX. 

letter,  etc.,  violation  of  this  act,  non-mailable,  953. 
letter  advocating  treason,  non-mailable,  954. 
punishment   using  mails,  nonmailable   matter,   955. 

Espionage  Act  Title  XII.),  Chapter  LIX. 
general  provision — prior  laws,  956. 
alien   anarchists   excluded,    957. 
deportation   of  alien,   958. 
foreign  travel   during  war,  960. 
returning  after  deportation,  959. 
passports  for  all  entries  and  departures,  961. 
punishment  for  violating  (sees.  960-961),  962. 
meaning  of  term   '  United   States ',   963. 
act  further  regulating  aliens  and  punishment,  964. 

OFFENSES  AGAINST  EXISTENCE  OF  GOVEENMENT,  Chapter  LX. 
treason  defended,  punishment    (1-2  P.  C),  966-967. 
misprision  of  treason,  punishment    (3  P.  C),  968. 

punishment  for  inciting,  etc.,  rebellion  or  insurrection     (4  P.  C),  969. 
unauthorized    correspondence    with    foreign    governments;     execption 

(5  P.   C),  970. 
seditious  conspiracy     (6  P.   C),  971. 

recruiting  persons  to  serve  against  Government     (7   P.  C),  972. 
enlisting,  etc.,  in  foreign  service    (8  P.  C),  973. 

OFFENSES  AGAINST  OPERATIONS  OF  GOVERNMENT,  Chapter  LXI. 
punishment  for  forgery  of  letter-patent     (27  P.  C),  975. 
bids,   contracts,   public   records,   etc.,    (28   P.   C),   976. 
deeds,   powers   of   attorney,   etc.,   to    obtain   money    from    Government, 

(29   P.   C),  977. 
having  forged,  etc.,  papers  in  possession   (30  P.  C),  978. 
officer  making  false  acknowledgments,  etc.,    (31   P.   C),   979. 
fraudulently  pretending  to  be  government  official     (32  P.  C),  980. 
false  personation  of  holder  of  public  stocks,  pensioner,  etc.,  (33  P.  C.) 

981. 
making  fraudulent  (hnuaiid  on  false  j)ower  of  attoriu\v    (34  P.  C),  982. 
making,   etc.,   false   clniins   friiudiilcnt   power   of   attorney,    (34    I'.    C.) 

982. 
presenting  for  ayipioval  to  or  by  any  officer  etc.,   in   civil,  military   or 

naval,  false  claim,  punishment     (35   P.  C),  983. 
aiding  in  approval  of  claim     (35   P.   C),  893. 
claims  of  corporation  of  wliich  United  States  is  Hlocklidlder    (35  I*.  C), 

983. 
concealing  property.  United  States    (35   P.  C),  983. 
delivery  proj)erty  less  than  required   (35  P.  C),  983. 
stealing,  etc,  property,  United  States   (35  P.  C),  983. 


Index  141!) 

(REFERKNCES    are    to    SECTIONS) 

OFFENSES  AGAINST  OPERATIONS  OF  GOVERNMENT— Continued. 

embezzling,  military  and  naval  stores    (36  P.  C),  984. 

conspiracy  to  defraud,  etc.,  each  party  liable    (37  P.  C),  98o. 
-    delaying  disposition  etc.,  of  prize  property  (38  P.  C),  986. 

bribery  of  official    (39  P.  C),  987. 

unlawfully  taking,  etc.,  papers  relating  to  claims    (40  P.  C),  988. 

interested  persons  acting  as  agents  of  the  government    (41   P.  C),  989. 

enticing  desertions,  etc.,  from   Army  or  Navy    (42   P.  C),  990. 

enticing  etc.,  uorkmen  from  arsenals  or  armories    (43  1*.  C),  991. 

malicious  injury,  etc.,  of  military  Avorks    (44  P.  C),  992. 

unauthorized  trespass  on  military  reservations    (45  P.  C),  99."{. 

robbing   from    another   personal    property    of   the    United    States     (46 
P.  C),  994. 

stealing,  etc.,  government  property     (47  P.  C),  995. 

receiving  stolen  government  property    (48  P.  C),  996. 

taking,  etc.,  growing  timber  from  public  lands     (49  P.   C),   997. 

allowance  to  miners  and  farmei-s    (49  P.  C),  997. 

injuring,  etc.,  trees  on  reservations    (50  P.  C. ),  998. 

unlawfully  taking  pitch,  etc.,  from  trees  on  public  lands  (51  P.  C. ),  999. 

setting  fire  to  trees,  etc.,  on  public  lands    (52  P.  C),  1000. 

failing  to  extinguish  fires  on  public  lands    (53  P.  C),  1001. 

fines  to  be  paid  to  county  school  fund    (54  P.  C),  1002. 

unlawful     trespass,     etc.,     on     Bull     Run,     National     Forest,     Oregon 
(55  P.  C),  1003. 

breaking    fences,    grazing    cattle,    etc.,    on    inclosed,    reserved    lands 
(56  P.  C),  1004. 

willfully  destroying,  etc.,  government  survey  marks     (57  P.  C)    lOO."). 

interrupting  public  surveys    (58  P.  C),  1006. 

preventing,  etc.,  bids  at  sales  of  public  lands    (59  P.  C),  1007. 

punishment   for   malicious   injury   to   government   telegraph,    etc.,   sys- 
tems   (60  P.  C),  1008. 

issuing  counterfeit  w-eather  forecasts    (61  P.  C),  1009. 

forcibly    interfering    with    officials    of    Animal    Industry    Bureau    (62 
P.  C),   1010. 

forging,  etc.,  certificates  of  entry  of  tlie  cu.stoms  (6.S  P.  C),  1011. 

concealing  invoices,  etc.   (64  P.  C),  1012. 

resisting,  etc.,  revenue  officers  (65  P.  C),  1013. 

destroying  property  to  prevent  seizure   (65  P.  C),   Idl.'!. 

falsely  personating  revenue  officer   (66  P.  C),  1014. 

offering,  etc.,  bribe  to  customs  officers  (67  P.  C),  1015. 

admitting  goods  for  less  than  duty  (68  P.  C),  1016. 

entry  of  goods  at  less  than  true  weight,  etc.   (69  P.  C),   1017. 

false  certification  by  consular  officer  (70  P.  C),  1018. 

rescuing  property  from  revenue  officers  (71  P.  C),  1019. 

forging  ship's  papers,  etc.    (72   P.  C),  1020. 

forging  etc.,  military  bounty  land  warrants,  etc.   (73  P.  C),  1021. 

making,  etc.,  false  citizenship  certificates   (74  P.  C),  1022. 


1420  Index 

(BErERENCES    ABE    TO    SECTIONS) 

OFFENSES  AGAINST  OPERATIONS  OF  GOVERNMENT— Continued, 
engraving,     printing,     etc.,     counterfeit     citizenship     certificates     (7.5 

P.  C),  1023. 
selling,  etc.,  counterfeit  citizenship  certificates   (75  P.  C),  1023. 
having  distinctive  paper  in  possession   (75  P.  C),  1023. 
offering  etc.,  false  evidence  for  naturalization  papers  (76  P.  C),  1024. 
selling  citizenship  certificates    (76  P.  C.),  1024. 
using,  etc.,  counterfeit  citizenship  certificates  (77  P.  C),  1025. 
having  citizenship  blanks  in  possession    (77  P.  C),  1025. 
falsely  denying  citizenship  under  oath   (77  P.  C),  1025. 
unlawfully  using  certificate  to  vote  (78  P.  C),  1026. 
unlawfully  using  false  certificate  of  citizenship   (78  P.  C),  1026. 
falsely  representing  to  be  a  citizen  (79  P.  C),  1027. 
false  swearing  in  naturalization  proceedings   (80  P.  C),  1028. 
courts  of  naturalization   (81  P.  C.),  1029. 
shanghaiing  of  sailors   (82  P.   C),  1030. 
national   banks   and   federal   corporations    forbidden   to   contribute    to 

political  elections   (83  P.  C.),  1031. 
corporations    forbidden    to    contribute    to    elections    to    federal    offices 

(83  P.  C.),  1931. 
punishment  for  violations  (83  P.  C),  1031. 
hunting,  etc.,  on  game  preserves  (84  P.  C.),  1032. 

GENERAL  AND  SPECIAL  PROVISIONS,  Chapter  LXII. 
death  penalty  to  be  by  hanging  (323  P.  C.)  1035. 
corruption  of  blood  and  forfeiture  of  estate  prohibited   (324  P.  C), 

1936. 
whipping  and  standing  in  pillory  forbidden   (325  P.  C),  1037. 
jurisdiction  of  State  courts  not  impaired   (326  P.  C),  1038. 
pardoning  power   (327  P.  C),  1039. 

.■jurisdiction  over  crimes  by  Indians  in  the  Territories  (328  P.  C.)  1040. 
in  the  States  (328  P.  C),  1040. 

punishment  for  rape  by  Indian  within  a  reservation  (328  P.  C),  1040. 
jurisdiction  over  crimes  by  Indians  in  reservations  in  South  Dakota  ; 

punishments   (329  P.  C),  1041. 
qualified  verdicts  in  murder  and  rape  allowed   (330  P.  C),  1042. 
delivery  of  body  of  executed  criminal  for  dissection  in  case  first  degree 

murder  and  rape    (331  P.  C),  1043. 
principals  in  crime  defined  (332  P.  C),  1044. 
punishment  of  accessories  after  the  fact  (333  P.  C),  1045. 
accessories  to  robbery  or  piracy  (334  P.  C),  1046. 
punishment  for  receiving  property  from  pirates,  definition  of  felonies 

(335  P.  C),  1047. 
misdemeanors  (335  P.  C),  1047. 
determination   of   place   of   commission   of    crime    of   murder   or    innii 

slaughter    (336  P.   C),  1048. 
construction  of  designated  words  (337  P.  C),  1049. 


Index  1421 

(references  are  to  sections) 
GENERAL  AND  SPECIAL  PROVISIONS— Continued, 
infliction  of  hard  labor  provided  for  (338  P.  C),  10 jU. 
arrangement  and  classilication  of  sections   (339  P.  C),  1051. 
jurisdiction  of  district  and  circuit  courts  (340  P.  C),  1052. 

INTERSTATE  COMMERCE,  Chapter  LXIII. 
Interstate  Commerce,   defined,   1055. 
transporting  female  for  immoral  purposes,  1056. 
persuading    women    or    girls    to    go    from    one    state    to    another    for 

prostitution,  1057. 
persuading  girls  under  18  years  to  l>e  transported  for  prostitution,  1058. 
jurisdiction   of   courts,   1059. 
alien  women  inforcing  commerce,  1060. 
illegal  use  of  interstate  road  freepass,  1061. 
standard  barrel  for  fruits,  1062. 

punishment  shipping  fruits  below  standard  barrel,  1063. 
transporting  intoxicating  liquor  to  state  prohibiting  sale  of  it,  1064. 
prize  fight  films  through  mails  or  express,  1065. 
intent  to  obstruct  or  attempt  to  prevent  foreign  commerce,   1066. 
larceny  from  interstate  shipment,  1067. 
conviction,    state    cannot    if    larceny    of    interstate    shipment    bar    to 

prosecution  under  Federal  Act  of  Feb.  13,  1913,  10G8. 
larceny  of  automobiles,  1069. 

punishment  for  acts  in  restriction  of  trade,  1070. 
monopolizing  commerce  among  the  state  etc.,  1071. 
falsely  labeled  dairy  products,  1072. 

refusal  to  testify  before  Interstate  Commerce  Commission,  1073. 
perjury  testifying  before   commission,   1073. 
illegal  transportation  of  insects,  1074. 
punishment,    violation    Interstate    Commerce,    1075. 
adulteration,  food  or  drug,  manufactory  of,  1076. 
shipping  adulterated  food  and  drugs,  1077. 
rules  and  regulation,  inspecting  meats,  etc.,  1078. 
offer  to,  or  sale  or  transportation  of  unsound  meat,  etc.,  1978. 
bribing  meat  inspector,  punishment,  1078. 
accepting  money   by   inspector,   punishment,   1078. 
misbranded  or  adulterated  insecticides,  1079. 
reports  of  common   carriers,   1080. 

officers,  common  carriers  failure  to  make  report,  punishment,  1081. 
report  of  common  carriers  not  evidence,  1082. 
refusing  to  testify,  1083. 

making  false  entry  or  statement  in  report  of  common  carrier,  punish- 
ment,  1083. 
corporation  failing  to  file  report,  punishment,  1083. 
making  public  any  information  obtained  by   commission,   1083. 
violating  any  of  the  Anti-trust  laws,  1084. 
grain  inspection  license  by  Secretary  of  Agriculture,  1085. 


1422  Index 

(references  are  to  sections) 
INTERSTATE  COMMERCE— Continued. 

grain  inspected  before  shipping  interstate,  1086. 

violation   of   act   of   Aug.    1916,   including   sections   4   and    7,   punish- 
ment,  1087. 

interfering   with   officer   of   agriculture,   punishment,    1088. 

counterfeiting  license,  violation  section  8,  Act  of  August  11,  1916,  1089. 

lime  sold  in  interstate  or  foreign  commerce  in  less  capacity  than  stand- 
ard barrel,  how  marked  thereunder,  1091,  1092. 

importer   selling  at   less   price   than   actual  market  value,   punishment, 
1093. 

conspiracy,  importer,  1093. 

interfering  with  exportation  to  foreign  countries,  1094. 

lime  must  be  in  standard  barrels,  1095. 

reasonable   variation    of   standard   barrel,    1096. 

unlawful  to  pack,  sell  it  lime,  punishment,   1097. 

standard  baskets  for  fruit,  1098,  1099. 

punishment  for  manufacture  or   sell  for   shipment,  which   do   not   con- 
form to  standard,  1100. 

OFFENSES    AGAINST    FOREIGN    AND    INTERSTATE    COMMERCE, 
Chapter  LXIV. 

carrying  explosives  in  passenger  conveyances,   forbidden    (232   P.   C), 

1103. 
small-arms  ammunition,  samples,  etc.,  permitted   (232  P.   C),   1103. 
military  transportation  not  affected   (232  P.  C),  1103. 
regulations    for   carrying   explosives   to    be    made    by    Interstate    Com- 
merce Commission   (233  P.  C),  1104. 
high  explosives  excluded  from  vessels  or  vehicles  carrying   passengers, 

etc.  (234  P.  C),  1105. 
marking  required  on  packages  of  explosives,  etc.    (235  P.  C),  1106. 
punishment  for  violating  regulations,  etc.    (235  P.   C),   1106. 
causing   death   or  injury  by   illegally   transporting   explosives    (235   P. 

C),   1107. 
importing  and  transporting  lottery  tickets,  etc.   (236  P.  C),  1108. 
delivering   liquor   shipped  in   interstate,   etc.,   commerce  "to   otlier   tlian 

bona  fide  consignee    (238  P.  C),   1109. 
carrier    acting    as    collecting    agent,    etc.,    for    Ijuyer    or    seller    of 

liquors   shipped    in    interstate    or    foreign    commerce    (239    P.    C), 

1110. 
shipping  liquors  in   interstate,   etc.,   commerce,   not   phiiiily   marked    as 

such,  etc.  (240  P.  C),  1111. 
importation  of  wild  birds  and  animals  prohibited   (241  P.  C.),   1112. 
special  permits  authorized,  regulations  (241  P.  C),  1112. 
transportation    of    prohibited    birds    and    animals    and    illegally    killcil 

game,  forbidden   (242  P.  C),  1113. 
transportation    of    ])rohibited    birds,    etc.,    marking    rccjuircd    on    jiack 

ages   (243  P.  (-.),  1114. 


Index  1423 

(references  are  to  sections) 
OFFENSES   AGAINST  FOREIGN   AND  INTERSTATE  COMMERCE— 
Continued, 
punishment  for  violations   (243  P.  C),   1115. 

punishment   for   importing,   transporting   etc.,   obscene    literature,    etc. 
1116. 

OFFENSES  RELATING  TO  INDIANS,  Chapter  LXV. 
trading  in  Indian  country,  1119. 

foreigners  in  Indian  country  must  have  passports,   1120. 
removing  cattle  from  Indian  country,  1121. 
general  laws  extends  to  Indian  country,  1122. 
general  laws  extends  to  forgery,  1123. 
white  person  setting  fire  to  Indian  country,  1124. 
white  person  making  assault  upon  Indian,   1125. 
Indian  making  assault  upon  white  person,   1125. 

JAPS  AND  CHINESE,  Chapter  LXVI. 
violating  Act,  July  5,   1884,   1128. 
identity,  certificate  of,  1129. 
attempting   to    land    Chinese,    punishment,    1130. 
forging    of    identification    certificate,    1131. 
violation  section  2158  Rev.  Statute,  1132. 
bringing  Chinese  into  the  United  States,  punishment,  1133. 
violation  of  provision  Act,  July  5,  1884,  1134. 
punishment  unlawful  importation  of  Cooley  labor,   1135. 
punishment,  taking  Chinamen  from  their  country,  1136. 
preparing  or  loading  a  vessel  in  violation  of  2158  Revenue   Statutes, 

1137. 
section   2158   Rev.   Statutes,   1138. 

MISCELLANEOUS  OFFENSES,   Chapter  LXVII. 
collecting   as   a    business,   foreign   interests,   1140. 
concealing  property   on  boundary,   1141. 
bribing  voter  in  congressional  election,  1142. 
congressional  election,   1143. 

accepting  fee  for  filing  soldier  homestead  entries,  punishment,  1144. 
trapping   Antwerp   pigeons,  punishment,   1145. 
detention,  etc.,  violation  of,  1146. 
punishment  for  trapping,  etc.,  1147. 
accepting   family   allowance,    illegally,    1148. 
making  false  statement  for  family  allowance,  1150. 
family   allowance — intent   to   defraud,   1149. 
attorney's  fee — war  risk  insurance,   1151. 
attorney's  fee — illegal — pension,  1152. 
cotton  dealer,  false  statement  by,  1053. 

false  statement  to  any  officer  under  cotton  dealer's  act — false,  1154. 
exports,  1155-1156. 
civil  rights — rights  to  hotels,   etc.,   punishment,   1157-1158. 


1424  Index 

(refekences  are  to  sections) 
MISCELLANEOUS  OFFENSES— Continued. 

national  parks,  killing  birds,  hunting  thereon,  etc.,  punishment,  1159. 
accepting  deed  of  Crow  Indian,  punishment,  1160. 
establishing   eight-day   standard,   1161. 
Labor  commission. 

eight  hour  day,  1163. 

punishment  for  violation  of  Labor  Law,   1163. 
contractors  and  Government  officers,   1164. 
federal  commission,  1168. 
labor  commission,  1162. 
dispute  before  labor  board,  1169. 
compensation,    false    affidavit,    1167. 

failure   of  witness  to   answer  questions,  contempt,   1169. 
purjury  of  witness,   1169. 
Officers. 

receiving   illegal   fees,   punishment,    1182. 
making   return  of   contract,   1191. 
failing  to  make  return,   1192. 

clerks,  U.  S.  Court  failing  to  make  report,  punishment,  1201. 
criminal  jjuuisliment  for  failure  to  do  duty  as  clerk,  1202. 
Public  printer. 

foreman  to  furnish   estimate  of  material,   1193. 
defending   government   punishment,    1194. 
Seeds. 

importation   of  adulterated,  into  U.   S.,   1208. 
'  what  is  adulterated  seed,  1209. 

punishment  violating  act,  1210. 
Treasury  department. 

clerks  carrying  on  business   in  tlie,  debts  in  Iho,  funds  in  U.   S., 

1172. 
officer   enjoying   in    business,    punislimcnt,    1173. 
Vocational  training, 
punisliment,  1171. 

donations  to  l)e  paid  into  the  U.  S.  Treasury,  1171. 
cmljezzlemcnt  of  funds,   1171. 
Water. 

diversion   of  Niagara   River,   1176. 
punishment   for,    1176. 
tajiping  riovernnient  water  mains,   1194. 
lireakiiig  Govcrnnient    water  mains,   1196. 

causing    water    of    Washington    and    Georgetown    to    become  "im- 
pure,  1197. 
War. 

act  violating,  punishment,   1178. 

secretary   of,   making   contract,    1170. 

secretary   of,   to   have   contracts    in    writing,    1188. 


Index  1425 

(references  are  to  sections) 
MISCELLANEOUS,  Chapter  LXVII. 
Army. 

officer    or   employee    engaged    in    i^rosecuting    claims    against    the 
United  States,  1174. 

punishment  for,  1174. 
Animals. 

furbearing,    violation    relating    to,    1198. 
Bankruptcy. 

fee  in,   1170. 

officer  to  take  deposits,  embezzlement,  1170. 

embezzlement,  transferring  of  bankrupt  estate,   1207. 

concealing  property   of,   1207. 

presenting  false  claims,   1207. 

acting  as  referee,  when  interested  in,  1207. 

purchasing,  while  property   of  referee,   1207. 

referee  refusing  inspection  of   affairs  of,   1207. 
Certificates. 

forging  of  etc.,  punishment,  1180. 
Civil  rights. 

marshal  failing  to  serve  warrant,  1200. 
Civil  service. 

obstructing  the   right   of  examination,   punishment  for,   1181. 
Congress. 

influencing   Congressman's   vote,    1175. 

punishment  for,  1175. 
Cotton. 

tax  on,  1183. 

payment   of   tax,   dues   not   exempt,   1183. 

punishment  under  state  law,   1184. 

incriminating    testimony   under,    1185. 

additional  punishment  under,  1186. 

punishment  for  failing  to  pay  tax,  1187. 
Decedent's  estates. 

definition   of   person,   executor,   etc.,   1203. 

tax  return  by  executor,   1204. 

making  false  return  of  property,  1205. 

taxes  imposed,  1206. 
Exports. 

punishment,   exporting   matches,    1189. 
Foods. 

inspection  of  salt  pork,  1211. 
Gold  and  silver. 

United  States  assay,  1212. 

violation  act,  Feb.  21,  1905,  1212. 

violation  act,  June  13,  1906,  1213. 
C.  L.— 90 


1426  Index 

(references  are  to  sections) 
MISCELLANEOUS— Continued. 
Indians. 

unlawful  to  purchase  livestock,  1177. 
punishment   for,   1177. 
Lands. 

leasing  of  lands,  1190. 

OFFENSES  RELATING  TO  MAILS,  Chapter  LXVIII. 
nonmailable   matter,   1216. 
letters  etc.,  urging  treason,  1217. 
advocating  treason,  1218. 

electric  interurban  railroad  refusing  to  carry  mails,   1219. 
Post  Master  General  may  remit  fines,   1220. 
Post  Master  General  may  discharge  prisoner,  etc.,   1221. 
combination  to  contract  for  supplies,  1222. 
combination  to  contract  for  carrying  the  mail,  1223. 
mail   matter   relating   to   naturalization,    1224. 
false  return  of  special  delivery,  1225. 
sending  insects  through  the  mails,  1226. 
plants  through  the  mails,  1227. 
marking  packages — plants,  1227. 

NATIONAL  PEOHIBITION,  Chapter  LXIX. 
war  prohibition  act  defined,  1230. 
commissioner   of   internal   revenue,    etc.,    shall   report   violations,    1230, 

1238,  1257. 
place  where  liquor  is  kept,  nuisance,  1232. 
property   subject   to   lien,   when,   1232. 
forfeiture  of  lease,  when,  1232. 
United    States    attorneys    or    person    named    by    Attorney    General    to 

prosecute,   1233. 
Federal  Courts  concurrent  witli  State  Courts,  1233. 
making  bond  abates  action,  1233. 
violating  inspection,  1233. 

all  officers  have  authority  to  enforce  Act,  1234. 
any  section  invalid  does  not  affect  others,  1235. 
war  prohibition  Act  not  repeal,   1236. 
definition   of   liquors  and  intoxicating   liquors,   1237. 
definition  of  terms,  etc.,  1237. 
taking  effect  of  Act,  1239. 
exemptions  from  operation  of  Act,   1240. 
percent  of  alcohol,  sale,  1240. 
commissioner  may  make  an  analysis,  1241. 
permit  to  sell,  prescribe,  etc.,  1242. 
the  head  of  conference  or   diocese   may   niimc   person   to   manufacture, 

etc.,  1242. 


Index  1427 

(references  are  to  sections) 
NATIONAL  PROHIBITION— Continued. 

physician    must    make    physical    examination    before    issuing    prescrip- 
tion, 1243. 

prescriptions,   blanks,   1244. 

permits  may  be  revoked,  124.5. 

permanent    record    ol'    sales,    etc.,    wholesale    drujj{(ist    cannot    sell    at 
retail,  1247. 

every  container  must  be  labeled,  1248. 

carrier  must  make  record  of  shipment,  1249. 

shipper  of  liquor  must  notify  carrier,  1250. 

carrier  shipping,  knowing  statement  to   be  false   concerning   contents, 
1251. 

order  to  ship  must  be  in  good  faith,  1252. 

intending  to  sell  liquors,  injunction,  1259. 

unlawful  to  advertise  sale,  1253. 

unlawful  to  sell  or  advertise  utensil  for  manufacture,  12.34. 

unlawful  to   receive   for   sale   or   solicit,   1255. 

right   to   damage  for   injury   against  seller,   1256. 

punishment  for  keeping  place  for  sale,  1257. 

who  may  bring  act  to  enjoin,  1258. 

bond  not  required  to  enjoin,  1258. 

summary   punishment   for   violating    injunction,    12G0. 

unlawful  to  have  licjuor  on  property  for  purpose   of   manufactory   in 
violation  of  this  Act,  1261. 

no  search  warrant  can  issue  for  search  of  private  residence,  1261. 

confiscation   of  property   or  vehicle,   1262. 

liens  may  be  established  on  vehicle,  1262. 

liquors  taken  may  be  sold  under  order  of  U.  S.  Court,  1263. 

all    officers    authorized    to    enforce    criminal    law    may    act,    arc    pro 
hibited,  1264. 

general   provision   for   punishment   under   Act,    1265. 

incrimination  no  excuse  from  testifying,   1266. 

jurisdiction  where   delivery  made,   1267. 

indictment  separate  offenses  in  separate  courts,  1268. 

possession   prima   facie   for   sale,    1269. 

all  records  subject  to  inspection,  1270. 

all  laws  inconsistent  repealed,  1271. 

invalid  provisions  do  not  affect  others,  1272. 

storage  of  liquor  in  U.  S.  Bonded  warehouse,  1273. 

punishment  for  violations,  1279. 

how  tax  may  be  collected,   1280. 

property  released  on  bond  by  commissioner,  1281. 

general  revenue  laws,  1282. 

act  applicable  to  Canal  Zone,  1284. 

Titles  I  and  III  in  force  after  passage,  1285. 

denatured  alcohol  under  Act,  June  7,  1906,  1286. 

punishment  under  Act,  June  7,  1906,   1286. 


1428  Index 

(references  are  to  sections) 
NATIONAL  PEOHIBITION— Continued. 

attempting  to  pay  Revenue  tax,  intoxicants,  1287. 

withdrawing  fermented  liquors  without  tax,   1288. 

selling  liquor  from  cask  without,  1289. 

counterfeiting  revenue  stamp,  1290. 

defacing  stamp  on  barrel,   1291. 

distiller  knowingly  using  false  measure,   1292. 

officer  permitting  of  cancelled  stamp,  1293. 

adding  substance  to  make  fictitious  proof,  1294. 

distiller  attempting  to  defraud  government,  1295. 

register  still,  past-owner  of  still,  etc,  Act,  July  20,  1868,  1296. 

notice  of  engaging  in  distilling,  July  20,  1868,  1297. 

places  for  distilling  Act,  June  6,  1872,  1298. 

breaking  locks  on  cisterns  or  building,  Act  July  20,  1868,  1299. 

Act  July  20,  1868,  must  post  sign,   1300. 

distillation  in  regular  distillery,  1301. 

others  cannot  perform  gangers'  duties,  1302. 

Act,  July  20,  1868,  gangers'  false  inspection,  1303. 

removing  spirits.  Act  July  20,  1868,  1304. 

violation,  Act  Aug.  27,  1894,  penalty,  1305. 

grape  brandy,  under  Act  March  3,  1877,  1306. 

using  sorghum  sugar.  Act  March  3,  1891,  1307. 

Act  July  20,  1868,  removing  coupon  bond,  1308. 

forging  stamp.  Act  March  3,  1897,  1309. 

Act  June  6,  1872,  false  entries,  1310. 

rectifier  intending  to  defraud  government,   1311. 

rectifier  required  to  keep  books,  1312. 

unlawful  to  receive  distilled  spirits,  etc.,  1313. 

noncompliance  with  law  by  rectifier,  etc.,  1314. 

defacing  stamp,  Act  July  20,  1868,  punishment,  1315. 

drawing  off  spirits,  1315. 

affixing  spurious  stamp,   1316. 

transporting   liquors,   interstate   commerce,    1317. 

sale  of  liquor  in  Indian  country,  1318. 

defense  against  sale  in  Indian  country,  1318. 

army  officers,  1318. 

complaints  for  arrests  in  Indian  country,  1318. 

penalties,  etc.,  1318. 

setting  up  still  in  Indian  country,  1319. 

confiscation  of  vehicle,  etc.,  1320. 

prima  facie  evidence,  unlawful  possession,   1321. 

having  possession,  etc.,  near  army  post,  1322. 

NATIONAL  RESERVE  AND  LAND  BANK,  Chapter  LXX. 
punishment  violation  by  bank  official,  etc.,  1325. 
punishment   examiner   accepting   loan,   1325. 
bank  examiner,  punishment   for  disclosing  name   of  borrower,   1325. 


Index  1429 

NATIONAL  RESERVE  AND  LAND  BANK— Continued, 
receiving  fee  by  bank  officer,  1325. 
falsely  certifying  check,  etc.,  1326. 

embezzling  by  officers,  agents  etc.,  punishment,   1326,  1327. 
receivers  National  Bank,  embezzlement  by,  1326,  1327. 
representing  that  government  is  liable  on  bond  by  any  person  con 

nected  with  reserve  bank,  1327. 
false  statement  to  Farm  Loan  Bank,  punishment,  1328. 
counterfeiting  farm  loan  bond,  punishment,  1329. 
false  representing  terms   farm  loan  bonds,   1330. 
embezzlement  by  officer  or  employee  Farm  Loan  Bank,  1331. 
officer  cannot  be  beneficiary,  1332. 

examiner,  punishment  for  disclosing  name  of  borrower,  1332. 
invalid  clause,  etc.,  does  not  affect  others,  1333. 
act  July  17,  1916,  repealed  in  so  far  as  affected  by  this  act,  1334. 

NAVIGATION,  Chapter  LXXI. 

master,  seaman,  vessel  and  owner  defined,  1337. 

inflicting  corporal  punishment  by  master,  1338. 

excessive  fees  by  shipping  commissioner,  1339. 

failure  to  furnish  clothing,  punishment,  1340. 

master  failing  to  keep  on  board,  1341. 

failure  to  keep  lime  juice,  1342. 

whaling  vessel,  keep  on  board  lime  juice,  1343. 

offenses  committed  by  seamen,  set  forth  in,  1344. 

neglect  of  duty,  drunkenness,  by  sailor,  1345. 

soliciting  seaman  as  lodger,  1346. 

unauthorized  person  going  on  vessel,  1347. 

violating  act,  Sept.  7,  1916,  1348. 

breaking  lock  or  fastening,  1349. 

selling  vessel  to  foreigner,  punishment,  1350.  • 

unlawful  to  pay  seaman  wages  in  advance,  1351. 

false  affidavit,  section  200,  article  2,  Act  March  8,  1918,  punishment, 

1352. 
failing  to  go  to  port  destination,  1353. 
steamers  on  rivers  furnish  stair  ways,  1354. 
making  false  register  by  officer,  1355. 
officers  failing  to  perform  duty,  1356. 
sending  ship  to  sea  unseaworthy,  punishment,   1357. 
passengers  in  excess  of  number  in  certificate,  1358. 
deck  passengers  must  have  place  assigned,   1359. 
punishment  under  preceding  sections,  1360. 
vessels  must  carry  life  preservers,  1361. 

night  steamers  carrying  passengers  must  have  watchmen,  1362. 
neglect  to  carry  watchmen,  penalty,  1363. 
packing  explosives,  manner  of,  1364. 
punishment  for  failure  properly  pack  explosives,  1365. 


1-430  Index 

(references  are  to  sections) 
NAVIGATION— Continued. 

wage  disputes,  settlement  thereof,  1366. 

punishment  for  failure  to  pay  wages,  1367. 

inspector  making  false  report,  1368. 

changing  license  act  March  23,  1900,  1369. 

punishment  for  using  unstamped  steel  plates,  1370. 

counterfeiting  stamp  on  steel  plate,  1371,  1372. 

officer  of  common  carrier  disclosing  information,  1373. 

interfering  with  lighthouse  board,   1374. 

refusal  to  maintain  lights  on  bridge,  1375. 

lighthouse  jurisdiction,  1376. 

using  vessel  for  private  purpose,  punishment,  1377. 

having  in  possession  sponges,  prima  facie  evidence,  violation,  1378. 

selling  sponges,  criminal,   1379,   1380. 

unlawful  to  catch  sponges  less  than  five  inches  long,  1381. 

navigable  waters  regulated  by  Secretary  of  War,  1382. 

injuring  pier   willfully,   1383. 

injuring  submarine  cable,  1386. 

failure  to  follow  rules  laying  cable,  1385. 

master  of  fishing  vessel  keep  within  nautical  mile  of  cable,  1387. 

Act,  Feb.  29,  1888,  vessel  defined  etc,  1388. 

refuse  in  New  York  harbor,  1389,  1390,  1391. 

chief  engineer  name  places  for  wharves,  1396. 

violating  rules  as  to  headwaters  of  Mississippi,  1392. 

obstruction  of  navigable  waters,   1393. 

fishing  adjacent  to  N.  Y.  harbor,  1394. 

drawbridges  under  jurisdiction  of  Secretary  of  War,  1395. 

violations  sees.  9,  10,  11,  Act  March  3,  1899,  1397. 

impairing  sea  wall,   1399. 

refuse  from  ships,  etc.,  in  navigable  waters,  1398. 

floating  logs,  etc.,  in  navigable  water,  1400. 

violating  sees.  13,  14,  15,  Act,  March  3,  1899,  1401. 

(section  13,  14,  15  Act  March  3,  1899,  is  Sections  1398,  1399  and  1400 

here.) 
obstruction  to  navigate  after  notice  to  remove,  1402. 
prosecution  of,  arrest,  1403. 
regulations,   sec.   15,  Act  Mar.   '.',,   1809,   sections   here,    1400 — does   not 

apply,  punishment,   1404. 
dumping  refuse,  regulation  of,  1405. 
bribing  inspector  of  navigation,  1406. 
punishment,  deposit  refuse  Lake  Michigan,   1407. 
failure  to  maintain  lights,  act  June  23,  1910,  1408. 
punishment   failure   comply   with   regulations,    1409,   1410. 

OFFENSES  AGAINST  NEUTRALITY,  Hmptor  LXXlt. 

punishment  for  accepting  cnitiiinHsion   to  serve-  ngniiist   fvinully  ])o\v(M- 
(9  P.  C),  1413. 


Index  lA'.W 

OFFENSES  AGAINST  NEUTRALITY— Continued. 

enlisting  etc.,   in  foreign  service    (10   P.   C),   1414. 

arming,  etc.,  vessels  against  friendly  power  (11  P.  C),  1415. 

augmenting  force  of  foreign  armed  vessel   (12  P.  C),  1416. 

beginning,  etc.,  expedition  against  friendly  power  (13  P.  C),  1417. 

enforcement  of  provisions    (14   P.  C),  1418. 

use  of  armed  force  to  compel  offending  vessels  to  depart    (15   P.  C), 

1419. 
bond  from  armed  vessels  before  clearing  (16  P.  C),  1420. 
detention  of  suspected  vessels   (17  P.  C),  1421. 
exception  as  to  transient  aliens   (18  P.  C),  1422. 
punishment  for  treason  or  piracy  not  affected   (18  P.  C),  1422. 

OPIUM,  Chapter  LXXIII. 

Chinese  introducing,  violation,  Act  Feb.  2'-'>,  1887,  1425. 

citizen  of  U.  S.  shall  not  import,  1426. 

fraudulently  importing  U.  S.,  1427. 

failing  to  report  smoking  opium,  1428. 

person  subject  to  jurisdiction  of  U.  S.  shall  not  import,  1429. 

penalties   for  exporting,   1430. 

PENSIONS  AND  ALLOWANCES  TO  SOLDIERS,  Chapter  LXXIV. 
withholding  discharge  papers  at,  1433. 
attorney  demanding  illegal  fee,  1434,  1436. 
attorney   may   file   claim    with    commissioner,    1435. 
punishment   illegal   action   of  attorney,   1435. 
articles  of  agreement,  1435. 

increase  of  pension  fee  over  two  dollars,  illegal,  1436. 
punishment  receiving  fee  for  procuring  congress  to  pass  law,  1437,  1442. 
guardian  appropriating  pension  belonging  to  ward,   1438. 
pensioning  civil  war  nurse,  1439. 
illegal  to  receive  fee,  1439. 
false   oath   prosecuting   pension,   1440. 

making  or  procuring  false  affidavit  in  pension  claim,  jjunishment,  1441. 
forging  indorsement  pension  cheek,  1443. 
federal  compensation  act,  accepting  compensation,  1444. 
section  4716,  revised  statute,  does  not  apply,  1445. 
Spanish  war,  etc.,  1447. 

punishment    for   violating    Spanish    war    pension,    1448. 
attorney's  fees  under  this,  1449. 
soldier's  insurance  for  attorney  fee,  1450. 

OFFENSES  AGAINST  THE  POSTAL  SERVICE,  Chapter  LXXV. 

punishment  for  unauthorized  keeping  a   post-olTice   (179  P.   C),  1452. 
unlawful  carrying  of  mail  (180  P.  C),  1453. 

establishing   private    express   for   carrying   mail    matter    (181    P.    C), 
1454. 


1432  Index 

(eeferences  are  to  sections) 
OFFENSES  AGAINST  THE  POSTAL  SEEVICE— Continued. 

delivery  of  stamped  matter  to  postal  authorities,  excepted  (181  P.  C), 

1454. 
permitting  use  of  vehicle  or  vessel  for  illegal  carrying  of  mail  matter 

(182  P.  C),  1455. 
transmitting   mail   by   private    express    (183    P.    C),    1456. 
unlawfully  carrying  mail  over  post  routes    (184  P.  C),  1457. 
carrying  matter  on  vessels  except  in  the  mail  (185  P.  C),  1458. 
special  messengers,  etc.,  excepted  (186  P.  C),  1459. 
unauthorized  use  of  letter-carrier  uniforms  and  badges    (187   P.   C.) 

1460. 
claiming  to  be  mail  carrier  (188  P.  C),  1461. 
unlawfully    claiming   to    carry   the   mail   injuring   pouches,    etc.,    (189 

P.  C),   1462. 
stealing  post-office  property   (190  P.  C),  1463. 

stealing,  counterfeiting,  etc.,  mail  locks,  and  keys  (191  P.  C),  1464. 
forcibly  breaking  into  post-office   (192  P.  C),  1465. 
forcibly  entering  mail  car,  etc.    (193   P.   C).   1466. 
stealing,  etc.,  mail  matter    (194  P.   C),  1467. 
obstructing  delivery  to  addressee   (195  P.  C),  1468. 
officials  unlawfully   detaining  letters,  etc.    (195  P.   C),   1468. 
officials  detaining  newspapers   (196  P.  C),  1469. 
authorized  taking,  etc.,  of  newspapers   (196  P.  C),  1469. 
robbery  of  the  mail  from  custodian   (197  P.  C),  1470. 
assaulting  custodian  (197  P.  C),  1470. 
injury  to  letter  boxes,  etc.   (198  P.  C),  1471. 
official  deserting  the  mail   (199  P.  C),  1472. 
master  of  vessel,  etc.,  failing  promptly  to  deliver  mail  on  board   ^200 

P.  C),  1473. 
willfully  obstructing  the  mail   (201  P.  C),  1474, 
ferryman  delaying  the  mail   (202  P.  C),  1475. 
foreign  vessel  failing  to  deliver  the  mail  on  arrival  in  port  (203  P.  C), 

1476. 
master  of  vessel  making  entry  before  delivery  of  mail    (204   P.   C), 

1477. 
using,  etc.,  canceled  postage  stamps  (205  P.  C),  1478. 
official  making  false  returns  of  postal  business  (206  P.  C),  1479. 
official  demanding  unlawful  rate  of  postage   (207  P.  C),  1480. 
unlawful  use  of  stamps,  etc.,  by  officials  (208  P.  C),  1481. 
inducing  purchasers  to  increase  pay  (208  P.  C),  1481. 
official  failing  to  account  for  postage  due  (209  P.  C),  1482. 
issuing  money  orders  before  receiving  payment  therefor   (210   P.  C), 

1483. 
mailing  obscone  literature,  etc.  (211  P.  C),  1484. 
mailing  matter  with  lewd,  scurrilous,  etc.  matter,  on  wrapper  forl)idden 

(212  P.  C),  1485. 


Index  1433 

(references  are  to  sections) 
OFFENSES  AGAINST  THE  POSTAL  SERVICE— Continued, 
punishment  for   (212  P.  C),  1485. 
mailing   matter   relating   to   lotteries,   gift   enterprises,   etc.,    forbidden 

(213   P.  C),  1486. 
punishment  for  (213  P.  C),  1486. 
place  of  trial   (213  P.  C),  1486. 
punishment  for    officials  aiding  lotteries,  gift  enterprises,  etc.   (213  P. 

C.),  1486. 
postmaster  not  to  be  lottery  agent  (214  P.  C),  1487. 
distributing,  etc.,  counterfeit  money  in  the  mails   (215  P.  C),  1488. 
assuming  false  address  to   distribute  counterfeit   money    (21 G   P.   C), 

1489. 
poisons,  inflammables,  explosives,  etc.,  declared  unniailable;   exceptions 

(217  P.  C),  1490. 
punishment  for  violation   (217  P.  C),  1490. 
intoxicating  liquors  declared  unniailable    (217  P.   C),  1490. 
punishment  for  sending  by  mail    (217   P.  C),   1490. 
punishment   for   mailing   articles    with   injurious   intent    (217    P.    C), 

1490. 
counterfeiting,  etc.,  money  orders  (218  P.  C),  1491. 
postage  stamps,  etc.  (219  P.  C),  1492. 
foreign  postage  stamps  (220  P.  C),  1493. 
unauthorized  writing  in  other  than  first  class  matter  prohibited   (221 

P.    C),    1494. 
penalty  for  violation  (222  P.  C),  1495. 
punishment  for  postmasters  illegally  approving  bonds,  etc.  (222  P.  C), 

1495. 
false  evidence  relative  to  second-class  mail  matter  (223  P.  C),  1496. 
making  false   claims  for   indemnity   for  lost   registered  mail    (224   P. 

C),  1497. 
unauthorized  use  of  postal  funds  by  officials   (225  P.  C),  1498. 
deposits  permitted   (225  P.  C),  1498. 
officials  interested  in  postal  contracts    (226  P.   C),   1499. 
unauthorized  use  of  penalty  blanks   for  private   matter    (227   P.   C), 

1500. 
unlawfully  increasing  mail  at  weighing  periods  (228  P.  C),  1501. 
offenses  against  foreign  mails   (229  P.  C),  1502. 
liability  of  officials  prior  to  making  oath  to  office  (230  P.  C),  1503. 
the  meaning  of  the  words  "postal  service"   (231  P.  C),  1504. 

OFFENSES  AGAINST  PUBLIC  JUSTICE,  Chapter  LXXVI. 
perjury  (125  P.  C),  1507. 
subornation  of  perjury  (126  P.  C),  1508. 
stealing  or  altering  process;   or  procuring  false  bail,  etc.   (127  P.  C), 

1509. 
destroying,    etc.,    public    records    (128    P.    C),    1510. 


/ 


1434  Index 

(references  are  to  sections) 
OFFENSES  AGAINST  PUBLIC  JUSTICE— Continued. 

destroying  records  by  officer  in  charge  (129  P.  C),  1511. 

forging  signature  of  judge,  etc.   (130  P.  C),  1512. 

bribery  of  judge  or  judicial  officer,  etc.   (131  P.  C),  1513. 

judge  accepting  bribe   (132  P.  C),  1514. 

punishment  for  receiving  bribe  by  jurors,  court  officials,  etc.    (133  P. 

C),   1515. 
by  witness   (134  P.   C),   1516. 
intimidating,  etc.,  witnesses  (135  P.  C),  1517. 
conspiracy  to  intimidate  witnesses,  jurors,  etc.  (136  P.  C),  1518. 
influencing  juror  by  correspondence,  etc.  (137  P.  C),  1519. 
official  voluntarily  suffering  prisoner  to  escape   (138  P.  C),  1520. 
application  to  extradition   to   Philippines,   etc.    (139   P.   C),   1521. 
resisting  service  of  judicial  warrant,  writ,  etc.   (140  P.  C),  1522. 
rescuing,  etc.,  person  arrested    (140  P.  C),   1522. 
concealing,   etc.,  person   for   whom   warrant   has   been   issued    (141    P. 

C),  1523. 
rescuing  criminal  on  the  way  to  execution   (142  P.  C),  1524. 
setting  at  liberty  person  convicted  of  capital  crime   (142  P.  C),  1524. 
rescuing    person    committed    for,    or    convicted    of    crime    other    than 

capital    (143   P.   C),   1525. 
rescuing  body  of  executed  criminal  from  marshal  (144  P.  C),  1526. 
extortion  by  threat  of  informing  of  violation  of  law  (145  P.  C),  1527. 
misprison  of  felony    (146   P.   C),   1528. 

PUBLIC  LANDS,  Chapter  LXXVII. 

wantonly  destroying  timber  on,   1531. 

false  instrument,  California,  1532. 

violation  act  June  3,  1876,  1533. 

preventing  settlement  on,   1534. 

punishment  for  preventing,  1535. 

procuring  to  settle  on  Oklahoma,   1536. 

military  parks,  1537. 

defense  for  cutting  timber  on,  1538. 

register   and   receiver   may    subpoena   witnesses,    1539. 

witness  failure  to  testify,  punishment,  1540. 

entryman  and  witness  making  false  affidavit,  1541. 

historic  monuments,  punislimcnt,  1542. 

preventing  settlement  act  Feby.  25,  1885,  1543. 

unlawful  to  trap  animal  on  Forest  Reserve,  1544. 

hunting  on  under  act  Aug.  11,  1916,  1545. 

QUARANTINE  LAWS,  Chapter  LXXVIII. 
trespassing  on  quarantine  restriction,  1548. 
cholera,  regulations — violation,  punishment,   1549. 
violation  Ijy  officer — penalty,  1550. 
violation   by   common   carrier,   1551. 


Index  1V.)7) 

(references  are  to  sections J 
QUARANTINE  LAWS— Continued. 

moving  diseased  carcasses — punishment,  1552. 

importing    diseased   cattle — punishment,    1553. 

master  or  owner  violating  act  March  3,  1901,  1554. 

foreign  vessel  entering  port  of  United   States,   1555. 

secretary    agriculture,    diseased    stock,    regulations    by,    1556. 

violations  act  Feb.   2,  1903,  regulations,   1557. 

shipping  condemned  carcasses  cattle,  1558. 

defacing  stamp  on  inspected  carcasses,  1559. 

railroad  not  to  receive   shipment  from   quarantine  county   to   another, 

1560. 
regulations  for   shipping,    1561. 
removed   from   quarantine,   1562. 
act  March  3,  1905,  violation,  punishment,  1563. 

entering   or   going   from   quarantine   by   vessel,   violation,   punishment, 
1564. 

INTERNAL  REVENUE,  Chapter  LXXIX. 
violations   revenue   laws,   1566. 
term  "person"   defined,   1566-1650. 
tax  on  sales,  future  delivery,  1567. 
stamps  must  be  cancelled,  1568. 

fraudulently  using,  cutting  or  attaching  stamps  or  impressions,   1569. 
punishment,  failure  to  affix  stamp,  1570. 
statement  that  tax  is  part  of  price,  1571. 

making,  signing,  etc.,  instruments  without  stamp,  punishment,  1572. 
punishment  for  giving  information,  1573. 

punishment,   refusing   inspection   mine,   child   labor   provision,    1574. 
price  and  tax  stamped  on  theater  ticket,  etc.,  1575. 
false  notice  or  return  of  tax,  act  Feb.  24,  1919  (Title  IV.),  1576. 
addition  tax  on  liquor,  violation-punishment,  1577. 
person,  corporation  or  partnership,  failing  to  make  return— punishment, 

1578. 
falsely  executing  bond,  etc.,  1579. 

attempting  to  defraud  government,  tax  on  spirits,  etc.,  1580. 
gauger  making  false  inspection,  1581. 
meaning  of  "White  Phosphoros,"  1582. 
Failure  to   comply  with   regulations,   1583. 
failure  to  aflix  stamp — punishment,  1584-1589. 
collector  must  furnish  stamp,   1585. 
matches  not  stamped,  forfeited,   1586. 
defacing  stamp  on  matches,  1587. 
insufficient  stamps — penalty,  1588. 
matches,   how   packed,   1590. 

mafches  manufactured,  must   register  name  and   style,  etc.   1591. 
tobacco  manufacturer   must  show  certificate   showing   machines,   1592. 
manufacturer  tobacco  must  post  sign   on   building,  1593. 


1436  Index 

(references  are  to  sections) 
INTERNAL   REVENUE— Continued. 

peddler  must  exhibit  certificate,  1594. 

reloading  tobacco  with  intent  to  defraud,  1596. 

manufacturer  of  cigars,  failing  to  give  bond,   1597. 

cigar  manufacturer  must  keep  sign  posted,  1598. 

manufacturer  must  make  inventory,  1599. 

cigars,  how  packed,   1600. 

notice  on  each  box,  failure,  penalty,  1601. 

cigars  cannot  be  removed  without  boxing,  1602. 

maker   cigars  on  commission,   1603. 

cigar  importer  must  pay  duties,  1604. 

imported  cigars  must  be  packed  and  stamped,  1605. 

receiving  unstamped  cigars,  penalty,   1606. 

washed  or  restored  st^mp,  penalty,  1607. 

using  counterfeit  or  used  stamp  on  package  of  tobacco,  1609. 

willfully  refusing  to  cancel  stamp,  1610. 

tax  and  import  duties  must  be  paid,  1611. 

dealer  in  leaf  tobacco  refusing  to  keep  bookSj  1612. 

punishment  for  selling  snuff  not  in  packages,  1613. 

sale  of  tobacco  in  packages,  not  branded,  1614. 

manufacturing  tobacco  on  commission,   1615. 

selling  without  paying  tax,   1616. 

removing  tobacco  from  manufactory  without  stamp,  1617. 

MIXED  FLOUR,  Chapter  LXXIX. 

brand  must  be  put  on  mixed  flour,   1618. 

failure  to  label  packages  of  flour — penalty,  1620. 

tax  stamp  on  barrels  or  packages — penalty,  1621. 

falsely  marking  unbranded  flour — penalty,  1619. 

imported   flour,   must   pay   tax   on,   penalty,    1622. 

empty  packages — stamp  must  be  destroyed — failure — penalty,  1623. 

purchasing  flour  upon  which  tax  has  not  been  placed — penalty,  1624. 

second  offense — penalty,  1625.   • 

dealers,    retail    and   wholesale    in   cheese   must    display    sign — penalty. 

1626. 
stamp  on  cheese,  destroyed — penalty,  1627. 
failure  to  post  notice  by  manufactory — penalty,  1628. 
retailers  in  chesce,  must  sell  from  original  packages — penalty,  1629. 
manufacturer  filled  cheese — regulations  and  penalty,  1630. 

OLEOMARGARINE,  Chapter  LXXIX. 

how  packed — failure  to  pack  properly — penalty,   1608. 
defrauding  government  of  tax — penalty,  1631. 
willfully  defacing  stamp,   1632. 
destroying  stamp  on  emptied  packages,  1633. 


Index  1437 

(references  are  to  sections) 
WHOLESALE  DEALER  MUST  KEEP  BOOKS,  Chapter  LXXIX. 

custom  officer  permitting  same  to  pass  from  his  possession  without  tax, 

1634. 
notice  must  be  pasted  on  package,  1635. 
violating  act  August   2,   1886,   1636. 
"butter"  defined,  Act  May  9,  1902,  1637. 
process  or  renovated  butter,  1637. 
tax  thereon,  1637. 

adulterated  butter,  how  packed,   1637. 
knowingly  selling  without  pay,  tax — penalty,  1637. 
notice  must  be  posted  on  every  package,  1637. 
renovated  butter,  how  marked,   1638. 

FOOD  AND  DRUGS,  Chapter  LXXIX. 

act  June   30,   1906,   not  affected  by   opium  act,   1640. 

agents  appointed  to  enforce  opium  act,  1641. 

penalty  for  violation,   1642. 

only  registered  person  can  possess  drugs,  1643. 

special  tax  on,  1644. 

does  not  apply  to  less  than  3%  opium,  1645. 

prescriptions   to   be  preserved,   collectors  may   furnish   certified   copy, 

1646. 
special  tax  payers,  1646. 
must  register  and  pay  tax  before  delivering  from  one  state  to  another, 

1647. 
shall  not  apply  to  common  carrier,  1647. 
registered   person   must   make   statement,    collector    concerning    drugs, 

1648. 
obtain   drugs   written    order   physician,    1649. 
how  prescriptions  must  be  preserved,   1649. 
prescription  must  be  dated  on  day  signed,  1649. 
to  what  division  United  States  apply,  special  tax,  1649. 
dealers  in  opium  or  coco  leaves  must  register  with  collector  of  Internal 

revenue,   1650. 
fraudulent  gauging — punishment,  1651. 

SLAVE  TRADE  AND  PEONAGE,  Chapter  LXXX. 

punishment  for  confining,  selling,  etc.,  slaves  on  vessels    (246  P.   C), 

1654. 
crew  of  vessel  seizing,  etc.,  persons  as  slaves  (247  P.  C),  1655. 
holding,  selling,  etc.,  slaves  in  the  United  States  (248  P.  C),  1656. 
equipping  vessels  for  slave  trade   (249  P.O.),  1657. 
citizens  receiving,  etc.,  slaves  on  a  vessel  (250  P.  C),  1658. 
master,  etc.,  of  slaver  hovering  on  the  coasts  with  slaves  on  board, 

(251  P.  C),  1659. 
citizen  serving  on  slave  vessel   (252  P.  C),  1660. 
receiving  on  board  persons  to  be  sold,  etc.,  as  slaves  (253  P.  C),  1661. 


1438  Index 

(references  are  to  sections) 
SLAVE  TRADE  AND  PEONAGE— Continued. 

forfeiture  of  vessel,  etc.,  equipped  for  slave  trade   (254  P.  C),  1662. 
punishment   for   equipping,    etc.,   vessel   for   slave    trade    (255   P.    C), 

1663. 
forfeiture   of  vessel  transporting   slaves    (256   P.   C),   1664. 
additional  penalty  to  person  receiving,  etc.,  slaves   (257  P.  C),   1665. 
forfeiture   of   vessel   having   slaves   on   board,   hoveriiig   on   the   coas^ts 

(258  P.  C),  1666. 
prohibition   against    liaving    ownership    in    slave    vessel — penalty    (259 

P.  C),  1667. 
armed  vessels  to  be  used  for  seizing  slave  vessels   (260  P.  C),  1668. 
proceeds   of   condemned   vessels   to   be   turned   into   the   treasury    (261 

P.   C),   1669. 
disposal  of  persons  found  on  seized  vessels   (262  P.  C),  1670. 
removal  of  persons  delivered  from  seized  vessels   (264  P.  C),  1672. 
apprehension   of   officers   and   crews,   etc.    (263   P.   C),   1671. 
port  to  which  captured  vessel  is  to  be  brought  (265  P.  C),  1673. 
bond  required  before   clearance   of   foreign   vessel   suspected  to   be   in 

the  slave  trade  (266  P.  C),  1674. 
return  of  persons  to  country  from  which  taken   (267  P.  C),  1675. 
punishment  for  kidnai^ing  (268  P.  C),  1676. 
holding,  etc.,  persons  in  peonage    (269   P.   C),   1677. 
obstructing  delivery  of  persons  held  in  peonage   (270  P.   C),   1678. 
bringing  into  the  United  States  kidnaped,   etc.,  persons    (271   P.   C), 

1679. 

SEARCH  WARRANTS,  Chapter  LXXXI. 
by  Avhom  issued,  1682. 
grounds  for  issuing,  1683. 
probable  cause,  1684. 
affidavit  required,  1684. 
affidavit   must  set   forth  the   facts,   1686. 

commissioner  must  be  satisfied  of  the  existence  of  the  forts,   1687. 
must  be  served  by  person  named  in  warrant,  1688. 
in  serving  warrant  officer  may  break  doors  and  windows,  1689. 
may  break  to  liberate  assistant,  1690. 

commissioner  must   direct  that   service   be   made   in   day   lime,   1691. 
return    in   ten    days    from    date,    1692. 
when  property  taken  iiuist  give  copy  of  warrant  to  ])i'rson  from  wlioiii 

taken,   1693. 
immediate   return   to   issuing  ofliccr  after   served    with    inventory,    1694. 
inventory  copy  of,  1095. 
must  take  testimony,   1696. 

property  not  described  in  Avarrant   returned,   1697. 
all  papers  filed  with  clerk,  1698. 
resisting  officer,  penalty,  1699. 
false   affidavit   perjury,   1700. 
inalieious   procuring   warrant,   penjilf.v,    1701. 


Index  1439 

(references  are  to  sections) 
SEARCH  WARRANTS— Continued. 

exceeding  authority  by  officer,  1702. 
aiding  foreign  government,  1703. 
existing  provisions  repealed,   1704. 

PIRACY  AND  OFFENSES  UPON  THE  SEAS,  Chapter  LXXXII. 
punishment  for  piracy   (290  P.  C),   1707. 
cruelty  to  crew   (291  P.  C),  1708. 
inciting  to  revolt  or  mutiny  (292  P.  C),  1709. 
revolt  or  mutiny  by  crew  (293  P.  C),  1710. 
seaman  violently  hindering  commander  defending  his  ship  (29-4  P.  C), 

1711. 
commander  maliciously  abandoning  officer  or  seaman   in   foreign   j)ort 

(295  P.  C),  1712. 
conspiracy  to  cast  away  vessel  for  insurance  (296  P.  C),  1713. 
plundering  vessels  in  distress,  etc.    (297  P.   C),   1914. 
obstructing  escape  of  persons  from  wrecked  vessel  (297  P.  C),  1714. 
luring  vessels  to  shipwreck   (298  P.  C),  1915. 
maliciously  attacking  vessel  for  plunder  (298  P.  C),  1715. 
entering  vessel  with  intent  to  commit  felony,  etc.   (299  P.  C),  1716. 
barratry  by  owner  of  vessel  (299  P.  C),  1916. 

willful  destruction  of  vessel  at  sea  by  seamen,  etc.   (300  P.  C),  1917. 
robbery   on   shore,  by  piratical  vessel    (302   P.   C),   1919. 
other  persons  destroying  vessel  at  sea  (301  P.  C),  1918. 
arming  vessel  to  cruise  against  American  citizens  (303  P.  C),  1720. 
trials   (303  P.  C),  1720. 

piracy  under  color  of  foreign  commission,  etc.   (304  P.  C),  1721. 
piracy  by  foreigner   (305  P.   C),  1722. 

piratically  running  away  with  vessel,  etc.    (306  P.   C),   1723. 
confederating  with  pirates,  etc.   (307  P.   C),  1724. 
selling  arms,  liquors,  etc.,  to  natives  of  Pacific   Islands    (308  P.   C). 

1725. 
deemed  an  offense  committed  on  the  high  seas  (309  P.  C),  1726. 
"vessel  of  the  United  States,"  construed  (310  P.  C),  1727. 

OFFENSES  IN  THE  TERRITORIES,  Chapter  LXXXIII. 
extent  of  jurisdiction  (311  P.  C),  1730. 

punishment  for  circulating  obscene  literature,  etc.    (312   P.  C),   1731. 
polygamy;  exception  (313  P.  C),  1732. 

cohabiting  with  more  than  one  woman;  indictments   (314  P.  C),  1733. 
joinder  of  courts   (315  P.  C),  1734. 
adultery,  definition    (316  P.   C),   1735. 
incest    (317   P.   C),   1736. 
fornication    (318    P.    C),    1737. 

violation  of  marriage   requirements    (319   P.   C),   1738. 
restricted  to  territories  (319  P.  C),  1738. 

punishment  for  pugilistic  encounters,  bull  fights,  etc.,  restriction    (320 
P.   C),   1739. 


1440  Index 

(references  are  to  sections) 
OFFENSES  IN  THE  TEREITOEIES— Continued, 
"pugilistic  encounter"  defined   (321  P.  C),  1740' 
train  robbery;  indictments  (322  P.  C),  1741. 

TELEGRAPH  AND  RADIO,  Chapter  LXXXIV. 
telegraph   refusal   to   transmit  message,   1744. 
railroads  maintain  telegraph,   1745. 
connecting  lines  Act  Aug.  7,  1888,   1746. 
same,  1747. 

punishment    of   officers,    1748. 
radio  apparatus,  1749. 
unlicensed  operator,  1750. 

VIRUS  AND  SERUMS,  Chapter  LXXXV. 

sending  from  one  state  to   another,   1753. 
army  and  navy  regulations,  1754. 
interfering  -with  treasury  department,  1755. 
falsely   labeled   container  of  virus,   1756. 
violation  of  drug  act  July,  1902,  1757. 
selling  worthless  serums  for  animals,  1758. 
violation  of  provisions — punishment,   1758. 

PERMANENT  WAR  LEGISLATION,  Chapter  LXXXVL 

in  war  United  States  not  engaged,  unlawful  vessel  to  depart,  1761. 

violation,  proclamation  of  president — penalty,  1761. 

registration — punishment  for,  failure,  1762. 

registration,  soldier,  false  statement,   1764. 

trading  with  enemy  act,  1765. 

destroying  material — punishment,   1766. 

obstructing  of  war,  1767. 

false  statement  about  the  government — perjury,  1768. 

printing,  etc.,  matter  concerning  the   government  during  present  war, 

1768. 
failure  to  perform   duties  under  selective  service  act,   1769. 
railroads  under  federal  control,   1770. 
selective  draft,  soldiers,  1771. 
food  control,   1772. 

punishment  for  former  crime,  not   repealed,  1773. 
war  finance,  Act  April  5,  1918,  1774. 

REPEALING  PROVISIONS,  Chapter  LXXXVII. 
Repeal  provisions   (341  P.  C),  1777. 
prior  civil  causes  not  affected   (342  P.  C),  1778. 
pending  criminal  actions  not  afTcctod   (343  P.  C),  1779. 
limitations,  etc.,  continued  under  existing  laws  (344  P.  C),  1780. 
Operation    of    present    act    (345    P.    C),    1781. 


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